Sauk County v. W. B.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 9, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP322 Cir. Ct. No. 2020GN38

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE CONDITION OF W.B.:

SAUK COUNTY,

PETITIONER-RESPONDENT,

V.

W. B.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Sauk County:
MICHAEL P. SCRENOCK, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

¶1 NASHOLD, J. W.B. appeals circuit court orders for guardianship
and protective placement. W.B. does not dispute that he meets the pertinent
statutory criteria for guardianship and protective placement under WIS. STAT.
No. 2021AP322

§§ 54.10(3)(a) (2019-20)1 and 55.08(1), respectively. W.B. argues, however, that
his health care power of attorney renders guardianship (and, by extension,
protective placement) unnecessary. See WIS. STAT. § 54.46(1)(a)2. (the circuit
court “shall dismiss the petition” for guardianship if “[a]dvance planning by the
ward, as specified in [§] 54.10(3)(c)3., renders guardianship unnecessary”);
§ 54.10(3)(c)3. (“advance planning” includes a health care power of attorney
under WIS. STAT. ch. 155); see also WIS. STAT. § 55.06 (protective placement may
be ordered only for an individual “adjudicated incompetent”); WIS. STAT.
§ 54.01(16) (an “‘[i]ndividual found incompetent’ means an individual who has
been adjudicated by a court as meeting the [guardianship] requirements of
[§] 54.10(3)”).

¶2 We disagree that W.B.’s health care power of attorney renders
guardianship and protective placement unnecessary. Accordingly, we affirm.

BACKGROUND

¶3 The following facts are not in dispute. In 2012, W.B. executed a
durable power of attorney and a health care power of attorney, each naming his
son, J.B., as agent. In 2015, W.B. suffered a stroke and was found to be
incapacitated, and his health care power of attorney was activated.2 At J.B.’s

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Unless the power of attorney instrument states otherwise, “an individual’s power of
attorney for health care takes effect upon a finding of incapacity by 2 physicians … or one
physician and one licensed advanced practice clinician, who personally examine the principal and
sign a statement specifying that the principal has incapacity.” WIS. STAT. § 155.05(2).
“‘Incapacity’ means the inability to receive and evaluate information effectively or to
communicate decisions to such an extent that the individual lacks the capacity to manage his or
her health care decisions.” WIS. STAT. § 155.01(8).

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direction, W.B. was placed in a nursing home facility with twenty-four-hour
supervision. W.B. has lived there since.

¶4 In 2020, the County filed the instant petitions for guardianship of the
person and the estate and for protective placement. The County also filed
accompanying reports of an examining physician and an examining psychologist.
In addition, the circuit court ordered and received reports from a County social
worker and an independent evaluator. According to one or more of these reports,
W.B. had repeatedly expressed the wish to leave his nursing home, for example,
by moving to a cabin that he owned in northern Wisconsin. W.B. stated that he
planned to ask a member of the nursing staff to marry him and that the nurse had
agreed to live with him and assist him. In reality, there was no such agreement,
and W.B. could not safely care for himself. Thus, the nursing home sought the
County’s intervention on the grounds that guardianship and protective placement
were necessary to prevent W.B. from moving out of the facility.

¶5 The circuit court held a hearing at which three examining experts
and two County social workers testified to W.B.’s need for guardianship and
protective placement under the statutory standards. See WIS. STAT.
§§ 54.10(3)(a), 55.08(1). The parties further disputed the legal effect of W.B.’s
existing powers of attorney. According to the County and W.B.’s guardian ad
litem, the court needed to invalidate these directives and order guardianship and
protective placement to prevent W.B. from moving out of the nursing home. The
County argued, “[A]s the [c]ourt is well aware, the power of attorney cannot
mandate placement, [so] when a proposed ward starts saying they’re going to
leave … something has to be done.” W.B., in contrast, argued that under WIS.
STAT. § 54.46(1)(a)2., the court was required to dismiss the petitions because
W.B.’s health care power of attorney rendered them unnecessary. Specifically,

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W.B. pointed to a provision in the health care power of attorney, which states,
“[T]his designation will permit my designee to … authorize my admission to or
transfer from a health care facility.”

¶6 In attempting to resolve this dispute, the circuit court asked the
parties whether, without a protective placement order, there was “any legal
impediment to” W.B.’s leaving the facility. W.B.’s counsel repeatedly responded
that he did not know the answer to this question; nor did he dispute the County’s
representation that a power of attorney instrument does not allow an agent to
“mandate placement” over the principal’s objection.

¶7 Based on these representations, the circuit court declined to dismiss
the petitions, noting that the issue of whether W.B. could leave the nursing home
without a protective placement order was “the whole reason that we’re here.” The
court found that W.B. had made “statements to multiple people that he intended to
go live at his cabin up north”; that W.B. had stated that he would marry someone
who would take care of him; that no one had in fact agreed to undertake that role;
and that W.B.’s failure “to actually leave the nursing home facility” was in part
due to the “level of supervision that he currently receives there.” The court further
determined that W.B. met the statutory criteria for guardianship of the person and
estate and for protective placement, and it entered those respective orders. The
guardianship order revokes the powers of attorney and names J.B. as guardian.
W.B. appeals.

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DISCUSSION

I. Principles of Law and Standard of Review

¶8 The criteria for a guardianship are set forth in WIS. STAT.
§ 54.10(3)(a). Pertinent here, to obtain guardianship of the person,3 the petitioner
must first prove that, “because of an impairment, the individual is unable
effectively to receive and evaluate information or to make or communicate
decisions to such an extent that the individual is unable to meet the essential
requirements for his or her physical health and safety.” Sec. 54.10(3)(a)2.
“‘Impairment’ means a developmental disability, serious and persistent mental
illness, degenerative brain disorder, or other like incapacit[y].” WIS. STAT.
§ 54.01(14). Second, the petitioner must show that “[t]he individual’s need for
assistance in decision making or communication is unable to be met effectively
and less restrictively through appropriate and reasonably available training,
education, support services, health care, assistive devices, a supported decision-
making agreement under [WIS. STAT.] ch. 52, or other means that the individual
will accept.” Sec. 54.10(3)(a)4. These elements must be established by clear and
convincing evidence. Sec. 54.10(3)(a).

¶9 The criteria for protective placement of an adult are as follows:
(1) “[t]he individual has a primary need for residential care and custody”; (2) “the
individual … has been determined to be incompetent by a circuit court”; (3) “[a]s
a result of a developmental disability, degenerative brain disorder, serious and

3
The guardianship order was for both W.B.’s person and his estate. W.B. makes no
argument specifically relating to the guardianship of his estate versus his person. Therefore, we
do not separately discuss the standard related to guardianship of the estate.

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No. 2021AP322

persistent mental illness, or other like incapacit[y], the individual is so totally
incapable of providing for his or her own care or custody as to create a substantial
risk of serious harm to himself or herself or others”; and (4) the “disability … is
permanent or likely to be permanent.” WIS. STAT. § 55.08(1). These elements
also must be proved by clear and convincing evidence. WIS. STAT. § 55.10(4)(d).

¶10 As previously noted, W.B. does not dispute that the evidence is
sufficient to support orders for guardianship and protective placement. He
maintains, however, that his health care power of attorney renders these orders
unnecessary. Specifically, he relies on WIS. STAT. § 54.46(1)(a)2., which provides
that the circuit court “shall dismiss the petition” for guardianship if it finds that
“[a]dvance planning by the ward, as specified in [WIS. STAT. §] 54.10(3)(c)3.,
renders guardianship unnecessary.” Section 54.10(3)(c)3., in turn, specifies that
“advance planning” includes a health care power of attorney under WIS. STAT.
ch. 155.4

¶11 The parties do not cite case law setting forth our specific standard
for reviewing a circuit court’s determination about whether “[a]dvanced planning

4
Although W.B. frequently refers to both the guardianship and protective placement
orders being rendered unnecessary by advance planning, we note that WIS. STAT. § 54.46(1)(a)2.
addresses only whether guardianship is rendered unnecessary. Elsewhere in his brief, however,
W.B. clarifies his position, arguing that, because the guardianship petition should have been
dismissed, the protective placement petition necessarily should have been dismissed as well. See
WIS. STAT. § 55.08(1)(b) (requiring a prior determination of incompetency for protective
placement); WIS. STAT. § 55.075(3) (the petition for guardianship must be heard before the
individual may be protectively placed); WIS. STAT. § 55.06 (protective placement “may be
ordered … only for an individual who is adjudicated incompetent”); WIS. STAT. § 54.01(16) (an
“‘[i]ndividual found incompetent’ means an individual who has been adjudicated by a court as
meeting the [guardianship] requirements of [WIS. STAT. §] 54.10(3)”). We acknowledge that
invalidation of the guardianship order would also invalidate the order for protective placement;
however, to precisely track the language of § 54.46(1)(a)2., we discuss this issue only in terms of
whether guardianship was rendered unnecessary by advanced planning.

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by the ward … renders guardianship unnecessary.” See WIS. STAT.
§ 54.46(1)(a)2. Nor, on our non-exhaustive research, have we located any directly
pertinent case law. We conclude that, generally speaking, this specific
determination represents an exercise of discretion, insofar as the court is required
to consider the advance planning documents in context and dismiss the
guardianship petition only if it “finds” that advanced planning renders
guardianship unnecessary. Sec. 54.46(1)(a)2.; cf. E.C. v. Krueger,
No. 2015AP2196, unpublished slip op. ¶¶14-15 (WI App Dec. 13, 2016) (choice
of guardian and suspension of powers of attorney reviewed for erroneous exercise
of discretion).5 At the same time, our analysis here hinges on questions of
statutory and contract interpretation—both questions of law that we decide de
novo. See Kasten v. Doral Dental USA, LLC, 2007 WI 76, ¶19, 301 Wis. 2d 598,
733 N.W.2d 300. In addition, applying a de novo standard of review does not
affect the outcome in this case, and our doing so will be most favorable to W.B.,
the appellant. Accordingly, we consider de novo whether W.B.’s health care
power of attorney renders guardianship unnecessary.

II. Health Care Power of Attorney Does Not Render Guardianship Unnecessary

¶12 Before addressing the merits of the parties’ arguments, we briefly
note the following. The parties agree that this case turns on the answer to the
following question: pursuant to W.B.’s health care power of attorney, can his
agent require his continued placement in a nursing home over his objection? W.B.
concedes that if the answer to this question is no, then the guardianship and

5
Pursuant to WIS. STAT. RULE 809.23(3)(b), authored, unpublished opinions issued after
July 1, 2009, may be cited for their persuasive value.

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protective placement petitions were properly granted. As previously mentioned,
however, when the circuit court asked this precise question—whether, in the
absence of the guardianship and protective placement orders, there was “any legal
impediment” to W.B.’s leaving the nursing home and “never coming back”—
W.B.’s attorney repeatedly responded that he did not know. He likewise did not
dispute the County’s representation that a power of attorney instrument does not
allow an agent to “mandate placement” over the principal’s objection. Thus, we
are cognizant of the fact that the court did not have before it the specific
arguments that W.B. now advances on appeal—namely that, consistent with
various statutory provisions, W.B.’s health care power of attorney grants his agent
the authority to require W.B.’s continued placement in a nursing home over his
objection. However, because the County does not make a forfeiture argument, we
do not address whether forfeiture may apply, and we instead proceed to the merits.
See State v. Tillman, 2005 WI App 71, ¶18, 281 Wis. 2d 157, 696 N.W.2d 574
(“[T]he court’s role in a conventional appeal is limited to addressing the issues
briefed by appellate counsel.”); Townsend v. Massey, 2011 WI App 160, ¶23, 338
Wis. 2d 114, 808 N.W.2d 155 (the forfeiture rule is one of judicial administration,
which appellate courts may overlook).

¶13 On appeal, W.B. argues that the following language from his health
care power of attorney grants his agent, J.B., the authority to keep W.B. in a
nursing home over his objection:

I [W.B.] fully understand, and intend, that this
designation will permit my designee [J.B.] to make health
care decisions and to provide, withhold, or withdraw
consent on my behalf; to apply for public benefits to defray
the cost of healthcare; to have access to my records
necessary to make decisions or apply for benefits; and to

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authorize my admission to or transfer from a health care
facility.[6] I specifically give my agent the power and
authority to provide, withdraw, or withhold consent to the
provision of life-prolonging procedures on my behalf; and
to execute all documents, waivers and releases related to
any of the foregoing and the powers set forth in the
previous sentence. My agent must act consistently with my
desires as outlined in my Living Will, if any.

(Emphasis added.)

¶14 In response, the County argues that W.B.’s health care power of
attorney is insufficient to require him to remain in a nursing home over his
objection and that provisions in both the power of attorney and the Wisconsin
Statutes make this clear.7 We agree. We first note that, although the power of
attorney allows J.B. to “authorize [W.B.’s] admission to” a health care facility, it
does not say that J.B. (much less the nursing home) may keep W.B. there over his
objection. More significantly, however, other provisions in the power of attorney
negate W.B.’s interpretation.

6
“Health care facility” is defined to include a “nursing home” that is “licensed or
approved by the [D]epartment [of Health Services]” under various statutory provisions. WIS.
STAT. § 155.01(6); see also WIS. STAT. § 50.01(3) (defining “nursing home”). The parties do not
dispute that W.B.’s nursing home is a “health care facility,” as that phrase is used in his health
care power of attorney.
7
We note that a health care agent may consent to the admission of the principal to long-
term nursing or residential care only “if the power of attorney for health care instrument
specifically so authorizes.” WIS. STAT. § 155.20(2)(c)2.c. WISCONSIN STAT. § 155.30(3)
provides a health care power of attorney form for Department of Health Services distribution (on
which a principal may check “yes” or “no” to long-term admission to a nursing home), but W.B.
did not use this form. Instead, his health care power of attorney permits J.B. to “authorize
[W.B.’s] admission to or transfer from a health care facility.” Because the County does not
dispute the point, for purposes of appeal, we will assume without deciding that this language in
W.B.’s power of attorney is sufficient to “specifically … authorize[]” J.B. to consent to W.B.’s
admission to long-term care. See § 155.20(2)(c)2.c. The question in this case, however, is
whether this authority allows J.B. to require that W.B. be kept in a nursing home over W.B.’s
objection.

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¶15 As the County notes, W.B.’s health care power of attorney begins
with the following notice: “You have the right to make decisions about your
health care. No health care may be given to you over your objection, and
necessary health care may not be stopped or withheld if you object.”8 (Emphasis
added.) This language mirrors the mandatory notice language of WIS. STAT.
§ 155.30(1) that must be included in health care power of attorney forms made
available for use by individuals without legal counsel, and that may be included in
health care power of attorney forms made available for use by individuals with
legal counsel, see § 155.30(2).9

¶16 Despite this unambiguous language regarding the principal’s rights
to make health care decisions and to not receive care over the principal’s
objection, W.B. argues that these rights apply only to an individual who has not
been deemed incapacitated. In support of this position, W.B. relies on additional
language contained in both his health care power of attorney and the mandatory
notice provision of WIS. STAT. § 155.30(1). For example, these sources explain
that in order to avoid the “problem” that may arise when the principal becomes
“physically or mentally unable to make decisions about [his or her] health care,”

8
This and other notice provisions of the health care power of attorney and the Wisconsin
Statutes are in all capitalization. For ease of reading, we omit the capitalization.
9
WISCONSIN STAT. § 155.30(2) provides:

A power of attorney for health care instrument that is
other than that specified in sub. (1) or (3) [both of which address
health care power of attorney forms for public use] shall include
either the notice specified in sub. (1) or a certificate signed by
the principal's lawyer stating: “I am a lawyer authorized to
practice law in Wisconsin. I have advised my client concerning
his or her rights in connection with this power of attorney for
health care and the applicable law.”

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the principal may execute a health care power of attorney to “specify the person
whom [the principal] want[s] to make health care decisions for [the principal] if
[the principal is] unable to make those decisions personally.” See id. These
sources further direct the principal to discuss his or her wishes and beliefs with the
health care agent and set forth directives in the document. See id. Furthermore,
these sources state that the power of attorney “is an important legal document”
that gives the agent “broad powers to make health care decisions for” the
principal. See id. According to W.B., this language “demonstrates” that an agent
in J.B.’s position is authorized to require that the principal be kept in a nursing
home over the principal’s objection.

¶17 We disagree that the above-quoted language upon which W.B. relies
overcomes the clear and unequivocal language in both WIS. STAT. § 155.30(1) and
W.B.’s health care power of attorney that expressly informs him of his “right to
make decisions about [his] health care” and that “no health care may be given to
[him] over [his] objection.” Notably absent from this language about W.B.’s
rights is any requirement or qualification that W.B. must not have been deemed
incapacitated in order to avail himself of these rights. “[T]he general rule of
interpretation is that powers of attorney are to be strictly construed and interpreted
to grant only those powers that are clearly delineated or specified.” Schmitz v.
Firstar Bank Milwaukee, 2003 WI 21, ¶28, 260 Wis. 2d 24, 658 N.W.2d 442.

¶18 Moreover, none of the language upon which W.B. relies addresses
the specific situation here, involving an incapacitated principal who is able to, and
does, express his wishes and intentions with respect to a specific health care
option. In addition, W.B.’s position appears to be predicated on at least three
premises that he fails to support: (1) that an agent’s ability under a health care
power of attorney to “authorize [the] admission” of an incapacitated principal also

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includes the power to require the nursing home to keep the principal there against
his wishes; (2) that incapacity necessarily equates to an inability to “make [any
health care decisions] personally,” see WIS. STAT. § 155.30(1); and (3) that an
incapacitated principal gives up all rights to determine his or her health care
treatment.

¶19 W.B. not only fails to support these assumptions in any meaningful
way, but his position also contradicts additional language in his health care power
of attorney and in WIS. STAT. § 155.30(1) indicating that an agent has a duty to
ascertain the principal’s wishes, regardless of whether the principal has been
deemed incapacitated. For example, a provision in both of these sources states, “If
your health care agent is unaware of your desires with respect to a particular
health care decision, he or she is required to determine what would be in your best
interests in making the decision.” See id. (emphasis added). Notably, this
provision does not state, “If your health care power of attorney instrument does
not address your desires….” Instead, this provision broadly discusses a situation
in which the agent is unaware of the principal’s desires—presumably, because
they were not communicated through the health care power of attorney or verbally
by the principal himself—and the agent must therefore determine the principal’s
best interests.

¶20 It is also significant that W.B.’s health care power of attorney and
WIS. STAT. § 155.30(1) expressly give him the right to revoke the power of
attorney “at any time”:

If you wish to change your power of attorney for health
care, you may revoke this document at any time by
destroying it, by directing another person to destroy it in
your presence, by signing a written and dated statement or
by stating that it is revoked in the presence of two
witnesses.

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(Emphasis added.) This language is also consistent with WIS. STAT. § 155.40(1),
which provides that “[a] principal may revoke his or her power of attorney for
health care and invalidate the power of attorney for health care instrument at any
time,” and which sets forth various mechanisms for doing so, none of which
involve any approval or other action on the part of the agent.

¶21 W.B. does not address the ability to revoke his own health care
power of attorney, nor do we discern any limitation on W.B.’s ability to so revoke.
W.B.’s ability to revoke “at any time” undermines his position that guardianship is
rendered unnecessary because the health care power of attorney is sufficient to
allow his agent (and the nursing home) to keep him in the nursing home against
his wishes.

¶22 The above-referenced provisions of WIS. STAT. ch. 155 and W.B.’s
power of attorney, granting him various retained rights over his health care, are
consistent with several other statutory provisions as well. Importantly, the County
directs us to WIS. STAT. § 155.20(5), which provides:

The health care agent shall act in good faith
consistently with the desires of the principal as expressed in
the power of attorney for health care instrument or as
otherwise specifically directed by the principal to the
health care agent at any time…. In the absence of a
specific directive by the principal or if the principal’s
desires are unknown, the health care agent shall, in good
faith, act in the best interests of the principal in exercising
his or her authority.

(Emphasis added.) W.B. asks us to construe the first sentence of this provision to
mean that “the directions to be followed are those which the principal set forth in
the power of attorney document or otherwise discussed with the agent prior to
incapacitation,” but this interpretation is contrary to the statute’s plain meaning.
See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271

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Wis. 2d 633, 681 N.W.2d 110 (statutory interpretation begins with the language of
the statute; if the meaning is plain, our inquiry ordinarily ends). The plain
meaning of the phrase “at any time” is clearly not “at any time prior to becoming
incapacitated.” Rather, the plain meaning of “at any time” is “at any time.” If the
legislature intended this provision to mean what W.B. says it does, the legislature
could have included the limiting language that W.B. advances. See id., ¶44 (“We
assume that the legislature’s intent is expressed in the statutory language.”).
Instead, the language of § 155.20(5) is consistent with the mandatory notice
provisions of WIS. STAT. § 155.30(1)—language which indicates that the
principal’s expressed wishes must be respected. See Kalal, 271 Wis. 2d 633, ¶46
(we examine the plain meaning of the operative statutory language “in the context
in which it is used; not in isolation but as part of a whole; in relation to the
language of surrounding or closely-related statutes”).

¶23 Other statutory provisions support the County’s interpretation. For
example, WIS. STAT. § 155.20(1) provides:

Unless the power of attorney for health care
instrument otherwise provides and except as specified in
[inapplicable provisions], the health care agent who is
known to the health care provider to be available to make
health care decisions for the principal has priority over any
individual other than the principal to make these health
care decisions.

(Emphasis added.) In addition, WIS. STAT. § 155.30(3) mandates that the
following language be included in health care power of attorney forms that the
Department of Health Services distributes to various entities, including hospitals
and nursing homes:

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No. 2021AP322

CREATION OF POWER OF ATTORNEY
FOR HEALTH CARE

I,…. (print name, address and date of birth), being
of sound mind, intend by this document to create a power
of attorney for health care. My executing this power of
attorney for health care is voluntary. Despite the creation
of this power of attorney for health care, I expect to be fully
informed about and allowed to participate in any health
care decision for me, to the extent that I am able. For the
purposes of this document, “health care decision” means an
informed decision to accept, maintain, discontinue or refuse
any care, treatment, service or procedure to maintain,
diagnose or treat my physical or mental condition.

….

GENERAL STATEMENT OF AUTHORITY GRANTED

….

If I am unable, due to my incapacity, to make a
health care decision, my health care agent is instructed to
make the health care decision for me, but my health care
agent should try to discuss with me any specific proposed
health care if I am able to communicate in any manner,
including by blinking my eyes. If this communication
cannot be made, my health care agent shall base his or her
decision on any health care choices that I have expressed
prior to the time of the decision. If I have not expressed a
health care choice about the health care in question and
communication cannot be made, my health care agent shall
base his or her health care decision on what he or she
believes to be in my best interest.

(Emphasis added.) All of the above statutory provisions are consistent with the
language in W.B.’s health care power of attorney notifying him that he has the
“right to make decisions about [his] health care” and that “no health care may be
given to [him] over [his] objection.” See also § 155.30(1).

¶24 W.B. leans heavily on a separate statutory provision, WIS. STAT.
§ 155.05(4), which states, “The desires of a principal who does not have
incapacity supersede the effect of his or her power of attorney for health care at all

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times.” (Emphasis added.) W.B. construes this provision to mean that the desires
of a principal who has been found incapacitated under § 155.05(2) do not
supersede the effect of his or her power of attorney. This interpretation is
unpersuasive, given that: (1) this provision does not in fact specify how the
desires of an incapacitated principal affect the power of attorney; and (2) the
statutory provisions set forth above indicate that the principal’s expressed wishes
are to be considered, if not followed, at all times.

¶25 Finally, W.B. directs our attention to WIS. STAT. §§ 55.055 and
50.06, arguing that “[t]he legislature has required immediate action from the
county in specific situations in which an incapacitated or incompetent individual
objects to placement in a nursing home or other facility” but that “the situation in
this case—involving admission by a health care agent—is not among them.”
W.B. notes that, pursuant to § 55.055(3), when a court-appointed guardian admits
an incompetent individual who is not subject to a protective placement order to a
nursing home or other facility and that individual “verbally objects to or otherwise
actively protests the admission,” the county must visit the individual within
seventy-two hours and, if the objection persists: (1) attempt to have the individual
released, (2) comply with the procedures for emergency placement under WIS.
STAT. § 55.135, or (3) file a petition for protective placement. Similar procedures
are provided for under § 50.06(2)(d) for an incapacitated individual objecting to
admission to a facility by a family member or close friend who is not a guardian or
health care agent.

¶26 W.B. argues that “the fact that there is no similar statute requiring
intervention for an incapacitated individual objecting to admission made by a
health care agent demonstrates that the agent’s decision trumps that of the
incapacitated principal.” But W.B.’s interpretation does not follow because—as

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discussed above—WIS. STAT. ch. 155 actually provides protections to the principal
in the scenario present here. Thus, the fact that ch. 155 does not mirror the
provisions of §§ 55.055(3) and 50.06(2)(d) ultimately does not advance W.B.’s
position. Moreover, these provisions actually appear to undermine W.B.’s
position, insofar as they suggest that incapacitated or incompetent individuals who
are not protectively placed retain the right to object to admission to a nursing
home and that their wishes must be taken seriously, despite their incapacity or
incompetence.

¶27 As previously noted, W.B. concedes that, if his agent J.B. cannot
require his continued placement in a nursing home over his objection, then the
petitions for guardianship and protective placement were properly granted.
Because we have determined that neither WIS. STAT. ch. 155 nor W.B.’s health
care power of attorney grants J.B. this power, we conclude that the orders for
guardianship and protective placement must be affirmed.

CONCLUSION

¶28 For all of the reasons stated above, we affirm the circuit court orders
for guardianship and protective placement.

By the Court.—Orders affirmed.

Not recommended for publication in the official reports.

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