2008 WI APP 7
court of appeals of
published opinion
Case No.: |
2007AP331 |
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Complete Title of Case: |
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In the matter of the guardianship of James J. Winiarski, Appellant, v. The Village at Respondent. |
Opinion Filed: |
December 04, 2007 |
Submitted on Briefs: |
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Oral Argument: |
November 06, 2007 |
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JUDGES: |
Curley, P.J., Fine and Kessler, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the appellant, the cause was submitted on
the briefs of and oral argument by James J.
Winiarski of |
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Respondent |
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ATTORNEYS: |
On behalf of the respondent, the cause was submitted on
the brief of and oral argument by Julie M.
Rusczek of Drinker Biddle Gardner
Carton of |
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On behalf of Florence T.O., the cause was submitted on
the brief of and oral argument by Mary
Mountin, adversary counsel, of |
2008 WI APP 7
COURT OF APPEALS DECISION DATED AND FILED December 04, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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In the matter of the guardianship of James J. Winiarski, Appellant, v. The Village at Respondent. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 KESSLER, J. James J. Winiarski appeals from
an order finding Florence T. O. competent.
Winiarski seeks to have a rehearing in which he is allowed to
participate in the proceedings. Because
we determine that Winiarski accepted the termination of his attorney-in-fact
status after a court found
BACKGROUND
¶2 This case arises out of an unmarried woman’s estate
planning. In 1998 and again in 2000,
¶3 In early May 2006,
If [VMP] determines in its sole discretion that any Power of Attorney documents executed by Resident jeopardizes Resident’s financial ability to promptly pay all charges due it, Resident and Responsible Party shall be promptly notified and will cancel or amend the Power of Attorney to the satisfaction of [VMP].
¶4 Winiarski executed most of the documents forwarded to him by
VMP, some with modifications, but refused to agree to the above language, or to
the assumption of personal liability for
¶5 The court appointed a guardian ad litem and an adversary counsel for
¶6 At a second status conference, the court ruled, on the briefs and without oral argument by the parties, that due to conflict of interest concerns, Winiarski’s involvement in the guardianship proceeding would be limited to that of an observer. The court did allow Winiarski to be present even at proceedings taking place in chambers, but did not allow him to examine any witnesses or submit any evidence for the court’s consideration.
¶7 The court held a hearing on the guardianship petition on
October 26, 2006. VMP called the only
witness to testify at that hearing, Dr. Peter Hansen, a psychologist who had
completed a psychological evaluation of
¶8 Shortly after the conclusion of the October 26 hearing,
DISCUSSION
¶9 Winiarski argues that
¶10 VMP argues that: (1) Winiarski has no standing to make this appeal as Florence was not aggrieved because the court found her to be competent, pursuant to Wis. Stat. § 879.27 (2005-06)[1] and Knight v. Milwaukee County, 2002 WI 27, 251 Wis. 2d 10, 640 N.W.2d 773; (2) even if Winiarski has standing, he was properly excluded from the earlier court proceedings because: (a) of his conflict of interest as demonstrated by his objection to the petition for guardianship; and (b) a court has discretion under Coston v. Joseph P., 222 Wis. 2d 1, 586 N.W.2d 52 (Ct. App. 1998), to limit participation of interested persons in guardianship proceedings; (3) the psychologist’s testimony presented at the hearing was not clear and convincing evidence that Florence was incompetent; and (4) the court never revoked the GDPOA, therefore, this issue is not appealable.
¶11 Underlying all of the arguments presented is whether Winiarski
has standing to appeal the court’s finding that
¶12 Under Wis. Stat. § 879.27(1),
the right to appeal is limited to “[a]ny person aggrieved by any appealable
order or judgment of the court assigned to exercise probate jurisdiction.” In Knight, the court noted that “for
purposes of § 879.27(1),” this means that the agent is, “in effect,” the
aggrieved principal. Knight,
251
¶13 However, because Winiarski’s standing derives from his agency
under the GDPOA, when Winiarski conceded at oral argument that he had accepted
¶14 Waiver is the “voluntary and intentional relinquishment of a
known right.” Milas v. Labor Ass’n of Wis.,
214
¶15 In this case, Winiarski conceded at oral argument that upon
notification by Florence’s adversary counsel that Florence had revoked the
GDPOA in which she had named Winiarski agent, Winiarski accepted the termination
without reserving a right to appeal the court’s determination that Florence was
competent. Because Winiarski is a
lawyer, and the drafter of the GDPOA, we can infer that he had constructive
knowledge of his rights and responsibilities as an agent under the GDPOA. By his acknowledgement at oral argument that
he did not reserve his right to appeal on
¶16 Finally, because our determination that Winiarski lacks
standing to make this appeal is dispositive, we decline to address the
remaining issues addressed in the parties’ briefs. See
Gross
v. Hoffman, 227
By the Court.—Appeal dismissed.