COURT OF APPEALS DECISION DATED AND FILED February 9, 2010 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
from orders of the circuit court for
Before
¶1 PER CURIAM. Anna Mae Z. appeals orders placing
her in a nursing home and appointing her daughter, Constance N., her permanent
guardian. Anna Mae argues the circuit
court did not comply with the statutory requirements for granting
BACKGROUND
¶2 On July 3, 2008,
¶3 The court scheduled a hearing on the guardianship and
placement petitions for August 7, 2008. At
that hearing, Anna Mae informed the court she intended to obtain an independent
evaluation from her own physician before proceeding. The parties agreed to schedule a contested
hearing for September 17, 2008. At the
September hearing, Anna Mae informed the court she had received a second
evaluation, but did not yet have a copy of her doctor’s report. She therefore asked the court for additional
time to obtain the report. The court
commenced the hearing as planned to permit
¶4 At the hearing, Dr. Egan testified that when he examined Anna
Mae, “[I]t was my opinion … that she probably had some underlying dementia that
was exacerbated by the declining physical condition.” He also discussed a psychological report
completed by Dr. Stanley Ferneyhough, which stated, “Cognitively, [Anna Mae’s] objective
test results are consistent with the diagnosis of dementia.” Egan further testified that based on his impressions
of Anna Mae’s cognitive abilities when he examined her, he did not believe she
was able to make decisions about her care, manage her finances, or live
independently.
¶5 Anna Mae testified that she was capable of caring for
herself. But she also told the court
that if she could not return home, she would prefer to remain in the nursing home
where she was making friends, rather than be placed in a less restrictive
assisted living facility. The court granted
¶6 At the October hearing, Anna Mae’s doctor did not testify. His report was entered into evidence, but
only briefly mentioned during the hearing.
Following the hearing, the circuit court found Anna Mae incompetent,
primarily on the basis of Dr. Egan’s and Constance’s testimony, and appointed
DISCUSSION
¶7 On appeal, Anna Mae raises three issues. First, she argues the court lost competency
to act on the petitions because it failed to comply with statutory time limits
for holding hearings. This is a question
of law that we review independently. See Village of Trempealeau v. Mikrut,
2004 WI 79, ¶7, 273
1. The Court’s Competency
¶8 Anna Mae argues the court lost competence to act on the protective placement and guardianship petitions because it did not hold a hearing on them before September 1, 2008, sixty days from the date they were filed. We disagree.
a. The protective placement petition
¶9 Under Wis. Stat. § 55.10(1),[1]
the circuit court must hold a hearing on a protective placement petition within
sixty days after it is filed. However,
the statute also permits the court to extend the time for a hearing by
forty-five days upon the request of the petitioner, the individual sought to be
protected, the individual’s guardian ad litem, or the county department.
¶10 At the August 12, 2008 hearing—thirty-three days after the petition was filed—Anna Mae represented to the court she was not ready to proceed with the hearing, in part because she intended to seek a second opinion from her doctor. The court then rescheduled the hearing for September 17, well within the forty‑five-day extension period. Although none of the parties explicitly requested an extension of the sixty-day period, the record is clear that the court rescheduled the hearing to accommodate the parties and that they all agreed to the new date. The court’s rescheduling was therefore a proper exercise of its authority to extend the deadline.
¶11 Further, at the September 17 hearing, Anna Mae specifically requested additional time to obtain her doctor’s report. The court granted her request and held a final hearing on October 13, 2008—also within the forty-five‑day extension period. See Wis. Stat. § 55.10(1). Because the court properly extended the time for a hearing, it did not lose its competency to act on the placement petition.
b. The guardianship petition
¶12 The guardianship statute also requires a court to hold a hearing within sixty days of the filing of “a petition for guardianship of an individual who was been admitted to a nursing home … under s. 50.06.” Wis. Stat. § 54.44(1)(b). Unlike the protective placement statute, the guardianship statute does not provide for extensions. However, we conclude Anna Mae forfeited her objection to the court’s competency to act on this petition.
¶13 Generally, “challenges to the circuit court’s competency are
waived if not raised in the circuit court ….”
Mikrut, 273
¶14 Anna Mae’s argument relies on Sheboygan County Department of
Social Services v. Matthew S., 2005 WI 84, 282
¶15 That is not the case here.
Unlike in Matthew S., it was solely Anna Mae’s rights—not those of
another person—that were affected by extending the deadline. Not only did she consent to the extensions,
she indicated they were necessary for her to properly contest the
petitions. As
2. Statutory Factors
¶16 Anna Mae next argues the court did not consider the factors enumerated in Wis. Stat. § 54.10(3) for appointing a guardian. The record belies this assertion.
¶17 Wisconsin Stat. § 54.10(3) permits the court to appoint a guardian only if it finds, among other things, the person is incompetent and cannot make essential health, safety and financial decisions. The statute then enumerates sixteen factors the court must consider. Here, the court specifically made these findings on a standard form GN-3170 (revised 04/08), entitled Determination and Order on Petition for Guardianship Due to Incompetency. This is a detailed form, adopted by the Judicial Conference pursuant to Wis. Stat. § 758.18, that includes the findings a court must make and the factors it must consider when appointing a guardian. The court’s thorough completion of the standard guardianship form satisfies us that it properly considered the appropriate statutory factors for appointing a guardian.
¶18 Nevertheless, Anna Mae argues the evidence was insufficient to
prove she was unable to care for herself.
In particular, she contends the circuit court should have discounted Dr.
Egan’s testimony because he had not examined her since she was first admitted
to the hospital. However, Egan’s
testimony was not the only evidence of Anna Mae’s dementia and inability to
care for herself. The court also relied
on Dr. Ferneyhough’s evaluation of Anna Mae—completed just nine days before the
hearing—diagnosing her with dementia. In
addition,
3. Protective Placement
¶19 Finally, Anna Mae argues that the court did not comply with the statutory procedure for ordering protective placement. In particular, she contends the court failed to conduct the comprehensive evaluation required by Wis. Stat. § 55.11(1), and that the court erred because the nursing home in which it placed her was not the least restrictive option for her.
¶20 Wisconsin Stat. § 55.11(1) specifies that a court must require “a comprehensive evaluation of the individual sought to be protected, if such an evaluation has not already been made.” Here, after the court found Anna Mae met the criteria for placement under Wis. Stat. § 55.08, it was required to order a comprehensive evaluation to determine the appropriate conditions for her placement. However, the court did not order a comprehensive evaluation. Instead, it granted Anna Mae’s request to stay at the nursing home. Anna Mae claims this was error because the court was required to place her “in the least restrictive manner consistent with the needs of the individual ….” See Wis. Stat. § 55.12.
¶21 We conclude Anna Mae is judicially estopped from making this
argument. Judicial estoppel is
appropriate where (1) a party assumes a position that is clearly inconsistent
with a position it took in an earlier proceeding; (2) the facts are the same in
both cases; and (3) the party to be estopped convinced the court to adopt its
earlier position. Harrison v. LIRC, 187
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.