Background
Chippewa County petitioned for guardianship of Nora, a pseudonym used by the court, after her healthcare power-of-attorney agent resigned and the alternate agent could not be located. Nora did not contest the resulting guardianship. The County later sought protective placement under Wisconsin Statutes chapter 55, alleging that Nora’s degenerative brain disorder left her unable to care for herself and that she required help with most activities of daily living.
At the final hearing, Dr. Michael Lace testified that Nora had cognitive, memory, executive-function, sensory, and mobility impairments. He was principally concerned that she might forget medications or appointments, have difficulty living safely at home, fall, or make poor financial decisions. The circuit court ordered protective placement to ensure that Nora remained healthy and took her medications. Nora appealed, arguing that the County had not proved either a substantial risk of serious harm or that residential placement was the least restrictive option.
The Court’s Holding
The Wisconsin Court of Appeals reversed. It held that the County failed to prove by clear and convincing evidence that Nora was so totally incapable of caring for herself that she posed a substantial risk of serious harm to herself or others. Dr. Lace did not identify what symptoms would result if Nora missed medication, which daily activities her mobility limitations prevented, or how those concerns created specific, foreseeable, and serious harm. Nora also had no history of falls or medication noncompliance.
The court separately held that the County failed to establish that protective placement was the least restrictive environment and manner consistent with Nora’s needs and the County’s resources. Dr. Lace acknowledged that services could organize Nora’s medications and that assistive devices could help her move safely at home. His testimony that medication management might be difficult depending on the schedule, and that Nora would benefit from someone being available if she fell, was insufficient to satisfy the clear-and-convincing-evidence standard.
Key Takeaways
- A chapter 55 protective-placement order requires evidence of a specific, foreseeable, and serious risk of harm; vague or speculative concerns are insufficient.
- Evidence that a person may forget medication, miss appointments, or need mobility assistance does not establish the statutory harm requirement without proof of the likely consequences.
- The petitioner must prove that protective placement is the least restrictive suitable option, including why available in-home services or assistive devices would be inadequate.
Why It Matters
The decision underscores that incompetency and a need for guardianship do not automatically justify residential protective placement. Counties must connect a person’s limitations to a concrete risk of serious harm and present evidence addressing less restrictive alternatives.
For practitioners, the opinion highlights the importance of developing a fact-specific record concerning medication consequences, prior incidents, functional limitations, available protective services, and the feasibility of home-based support.