In Re Guardianship of Catherine P.

FINE, J.

¶ 78. (dissenting). There are times when the government should just step out of the way and let people handle their own affairs. This, in my view, is one of those times.

¶ 79. Catherine E wanted her daughter, Linda L., to manage her affairs if she needed care and oversight. Accordingly, in November of 1999, Catherine E executed a Durable Fower of Attorney grant to her daughter, Linda L. See Wis. Stat. §§ 243.07, 243.10. At the time, Catherine E's address was in Milwaukee and Linda L. lived in Connecticut. Additionally, although Catherine E's son, Wayne E, lived in Milwaukee, Linda L.'s power of attorney to act for Catherine E specifically provided that it "shall include all household furniture, *674furnishings, tangible personal property and personal effects located in Wisconsin and Florida."1

¶ 80. On the same day that Catherine E gave to Linda L. the Durable Power of Attorney, Catherine E also executed a Power of Attorney for Health Care. See Wis. Stat. ch. 155. The Power of Attorney for Health Care designated Catherine E's husband Ernst H. E to be her "health care agent for the purpose of making health care decisions on my behalf," if Catherine E "ever [should] have incapacity" and is "no longer able to make health care decisions for myself, due to my incapacity." Catherine E designated Linda L., even though she lived in Connecticut, as an alternate health-care agent if Catherine E's husband could not fulfill that responsibility. Ernst H. E died in October of 2001.

¶ 81. J. Patrick Ronan, Esq., was the family lawyer for Catherine and Ernst H. E He drafted Catherine E's Durable Power of Attorney and the Power of Attorney for Health Care that she executed in November of 1999. In an affidavit to the Connecticut probate court with jurisdiction over Linda L.'s application to be appointed as Catherine E's conservator in Connecticut, he explained why Catherine E looked all the way to Connecticut for someone to handle her affairs if she became incompetent. Ronan's affidavit related that both Ernst and Catherine E had a strained relationship with their son Wayne and his incessant prodding for them to give him money and property. He recalled:

In direct contrast to the great deal of faith and trust [Catherine E] and [Ernst H. E] placed in Linda, we spent considerable time on [the day the power of attorney forms were executed by Catherine E] discuss*675ing the fact that [Catherine E] and [Ernst H. E] were adamant that Wayne not exert any control or decision-making authority over [Catherine E] and [Ernst H. E]'s estates, to the point that they insisted that I be appointed their successor trustee (to succeed, first, Linda and then her husband, Steve L[J as trustee) for the trust they created for their son.

¶ 82. Ten days after Ernst H. E died in October of 2001, Wayne took Catherine E to a lawyer's office and had her revoke the November 1999 powers of attorney. The Milwaukee County circuit court later determined that Catherine E was not competent to do so. Although the court also revoked all prior powers of attorney, it appointed Linda L. as Catherine E's guardian of the person, and made the following finding: "That in listening to the testimony of Linda L[.] and Wayne P[.] the Court determines that it is satisfied that Linda L[.] is better equipped to handle her mother's needs and will cooperate in sharing placement of Catherine P[.] with Wayne P[.] as ordered below."

¶ 83. The court's placement schedule provided that Catherine E "shall reside" in Florida during December, January, February, and March, in Connecticut with Linda L. during April, May, June, and July, and in her home in Wisconsin with Wayne E during August, September, October, and November. The order further provided that Wayne E and Linda L. "shall each reside with their mother at her home for two months each per year and shall attempt to alternate the two month stays between them such that each shall have an opportunity to spend alternating Christmas's [sic] with their mother."

¶ 84. The circuit court appointed Leonard Brady, Esq., as the guardian of Catherine E’s estate, and directed him to "removeO" Wayne E's name "from any title or document of interest" in a "Chaparelle boat and *676GMC Suburban automobile" that Wayne E had purchased with his mother's money while she was incompetent. The circuit court also directed Brady to see how much of Catherine E's assets should be paid to Wayne E for "services rendered" by him "in caring for his mother during the pendency of this action," not to exceed "$54,750 on an annualized basis."

¶ 85. As the Majority recounts, the circuit court, a different judge presiding, later removed Linda L. as Catherine E's guardian of the person, and this appeal stems from that. As the Majority also observes, whether to remove a guardian of a person is in the circuit court's reasoned discretion. A court reasonably exercises its discretion when it applies the material legal principles to a rational analysis of the pertinent facts. See McCleary v. State, 49 Wis. 2d 263, 277-278, 182 N.W.2d 512, 519-520 (1971). In my view, the circuit court did not do that here when it removed Linda L. as Catherine E's guardian.

¶ 86. As applicable to this case, the statute setting the grounds for removal of a guardian is, as the Majority writes, Wis. Stat. § 880.16: "When any guardian fails or neglects to discharge the guardian's trust the court may remove the guardian after such notice as the court shall direct to such guardian and all others interested." Sec. 880.16(2). This is a plain and common-sense provision and the "guardian's trust" must, perforce, focus on the ward's best interests because the appointment of guardians to act for their wards is in lieu of judicial micromanagement of what is or is not best for the ward. See James v. Roberts, 203 Wis. 89, 94-95, 233 N.W. 563, 565 (1930). Thus, a guardian may not be removed merely because the court would have acted differently if clothed with the guardian's powers. Id., 203 Wis. at 95, 233 N.W at 565 ("Merely because the judge of the county court, if *677acting as guardian, might have followed a different course does not warrant the removed of a guardian, the changing of a well-worked out plan, or the transfer of the custody of the ward from the place selected by the guardian."). Therefore, "[t]o justify interference with a guardian's control, there must be some positive misbehavior, want of integrity, or negligence affecting the ward's welfare." Id., 203 Wis. at 95-96, 233 N.W. at 565. I examine against these prerequisites the reasons given by the circuit court to remove Linda L. as her mother's guardian, and also the Majority's reasons to affirm. In my view, there is no evidence in the Record, and the Majority points to none, that even hints, no less proves by any standard of proof, that Linda L. was guilty of: (1) "positive misbehavior"; or (2) "want of integrity"; or (3) negligence that adversely affected Catherine E's welfare.

¶ 87. The trial court made the following "findings," in a document headed "SUPPLEMENTAL FINDINGS AND ORDER ON MOTION TO REMOVE GUARDIAN OF THE PERSON," as support for its order removing Linda L. as Catherine E's guardian:

1. "Linda L[.] has put her self-interests above her ward Catherine P[.]"
2. Linda L. "interfere[ed] inappropriately with Court Orders previously issued; particularly with regards to this Court's attempt to obtain additional information on whether or not it is feasible to return Catherine P[.] to Wisconsin."
3. Linda L.'s "behavior is found to he frustrating to the Court process, and the Court is further distressed over [Linda L.'s lawyerj's failure to appear at these hearings, while still filing Motions in opposition to the proceedings."
4. "There is good cause to remove Linda L[.] as Guardian of the Person of Catherine P[.]"

*678¶ 88. Items 1 and 4 are conclusions of law, to which we owe no deference. See State v. Ward, 153 Wis. 2d 743, 745, 452 N.W.2d 158, 159 (Ct. App. 1989). Significantly, the trial court did not support these self-described "findings" with any "facts" — what was Linda L.'s "self-interest" that she allegedly "put... above" those of her mother and how did she do it? Similarly, item 2 is also, essentially, a conclusion of law that is bereft of supporting facts. Further, before a guardian may be removed, the guardian must have done something that hurt the ward, see James, 203 Wis. at 95-96, 233 N.W at 565, and there is also nothing in item 2 that shows how or why the alleged inappropriate interference harmed Catherine E Indeed, the Majority concedes that facilities in either Connecticut or Wisconsin would have served Catherine E's needs equally as well. Majority, ¶ 42.

¶ 89. Item 3, an expression of the trial court's "frustration" and "disress" in connection with its calendar-management, is similarly bereft of any nexus of harm to Catherine E

¶ 90. In sum, the circuit court's "findings" do not show that, as required by James, Linda L. was guilty of: (1) "positive misbehavior"; or (2) "want of integrity"; or (3) negligence adversely affecting Catherine E's welfare. Thus, we should reverse, see id., 203 Wis. at 95-96, 233 N.W at 565, but the Majority affirms and gives equally vague reasons. It sets them out in paragraphs 73 through 75 of its opinion.

1.

¶ 91. "In making its decision to remove Linda, the circuit court found that Linda had put her own self-interests above those of her ward, and had failed *679Catherine by refusing to cooperate with the circuit court in obtaining information." Majority, ¶ 73. Although the Majority opines: "These findings are supported by the record, and serve as an adequate basis for the circuit court's decision to remove Linda [L.] as guardian," ibid,., it, too, does not explain either how the findings are supported by the Record, or how the alleged "refus[al] to cooperate with the circuit court in obtaining information" put Linda L.'s "self-interest above those of her" mother.

¶ 92. Critically, insofar as the required James analysis is concerned, there is no evidence that Linda L. either profited or sought to profit from her mother's incapacity. This is in stark contrast to Wayne E, who not only used his mother's funds to secure a boat and a sports utility vehicle, which the trial court ordered him to disgorge, but, unlike Linda L., also sought significant payment for taking care of his mother.

2.

¶ 93. Other than paragraph 75's accurate assertion that Linda L. moved Catherine E to Connecticut without giving anyone advance notice, there is nothing in that paragraph that sets out any fact supporting the paragraph's wide-ranging generalizations. Further, many of those generalizations appear to come from either the arguments by the lawyers arrayed against Linda L. or from those lawyers' hearsay assertions. This is not evidence from which Catherine E's future should hang.

¶ 94. Further, nothing in paragraphs 74 or 75 shows that Linda L. was acting for her own interests rather than those of her mother. As for the "secret" move, the clear language of Wis. Stat. § 55.06(9)(b) permitted it, and one of the circuit court judges hearing *680this case agreed with Linda L.'s assessment of that language. That the Majority and another of the circuit judges who heard this case disagree, does not make what Linda L. did either "positive misbehavior" or a display of a "want of integrity." See James, 203 Wis. at 95-96, 233 N.W. at 565. Certainly, it shows that Linda L.'s position was, at the very least, arguable. I do not discuss the merits of either position, however, because there is nothing in the Record that shows that Linda L. was not acting in her good-faith belief that her mother would be better off in Connecticut than in Wisconsin. Stated another way, although Linda L. might have been right or she might have been wrong, she did not move her mother for anything other than the loftiest of motives — Catherine E's well-being. Indeed, there is significant evidence in the Record that supports her belief that moving her mother to Connecticut was the only way she could assure Catherine E a peaceful place to live, without what the Record shows to be Wayne E's interference.

¶ 95. In support of Linda L.'s application to be appointed by the Connecticut probate court as Catherine E's conservator, she submitted to the Connecticut court, and it is part of the Record before us, an affidavit executed on February 18, 2005, by the administrator of the nursing home in which Catherine E lived from November 8, 2003, to December 21, 2004, when Linda L. moved her to Connecticut. The administrator related the following insofar as Catherine E's health and well-being was concerned:

• "It was evident that Linda L[.] and Wayne P[.] love their mother and that [Catherine E] loves them."
• Linda L. "worked hard to improve the quality of her mother's life, she was pleasant to work with, and she *681brought about a positive improvement in her mother's physical and emotional health."
• "My interactions with Wayne P[J and his wife, Beth P[.] were in direct contrast to my interactions with Linda L[.]"
• "Mr. P[.] frequently attempted to countermand directives made by staff for his mother's health and safety. This behavior gradually subsided through 2004.
• "At a time when [Catherine P] was on a restricted diet of soft foods, Mr. P[.] tried to give to his mother foods which presented a choking hazard to her."
• "At a time when Catherine P[.]'s physical therapist prescribed leg braces to attempt to correct contrac-tures, Mr. P[.] insisted on removing his mother's leg braces and, in fact, did remove them."
• 'Wayne P[.] repeatedly interfered with the staffs ability to care for [Catherine E] by telling his mother that she would be going home and that she belonged home. Mr. P[.] repeatedly told his mother that he and Beth were her appropriate caregivers. [Catherine E] was visibly distressed by these discussions."
• 'Wayne P[J and his wife, Beth, would frequently disparage Linda L[.] to" Catherine E
• "I never heard Linda L[.] or her husband or her children make any negative comments about Wayne and/or Beth P[J to" Catherine E
• 'Wayne F[.] and his wife, Beth, would frequently disparage Linda L[.] to me."
• Wayne E wanted to have his mother's physician discontinue the administration of two pharmaceuticals that, according to the medical staff, were helping to restore Catherine E's cognitive abilities, and Catherine E's physician did not know why.
*682• "Frequently, when Mr. P[.]'s wife, Beth P[.] visited Catherine P[.] at [the nursing home], she was belligerent, confrontational and appeared intoxicated. She frequently smelled of alcohol."
• Linda L. never interfered with either Wayne E's or his wife's visits to Catherine E at the nursing home.
• As of February 18, 2005, Catherine E's Wisconsin court-appointed adversary counsel had not "contacted [the administrator] to discuss any aspect of this matter."

¶ 96. Everything that Linda L. did in this case was to protect and preserve her mother's interests, comfort, and her mother's estate from the predations of her brother, Wayne E Given Wayne E's history of seeking to get money from his mother and to exploit her cognitive disability in order to overturn Catherine E's choice of Linda L. as the person who should handle Catherine E's financial and health-care affairs if Catherine E could no longer do so, almost anything Linda L. did to protect her mother from Wayne E would, as phrased by the Majority as another reason why Linda L.'s removal as Catherine E's guardian was justified, "upset" Wayne. Majority, ¶ 75. Wayne E's interests or feelings, however, are not what the law in this proceeding should protect; rather, Catherine E has exclusive claim on our concern.

¶ 97. In my view, the Record's revelations that Wayne E not only tried to interfere with the Milwaukee nursing home's care for his mother, and that he used his mother's money to buy a boat and a sports utility vehicle, and that he took advantage of her incompetency following the death of Ernst H. E to have her revoke the powers of attorney she gave to Linda L., and, also, that he is seeking significant payment from his *683mother's estate to take care of her, are at the heart of this case. Yet, the Majority mentions this only in a passing reference to this Dissent. Majority, ¶ 26 n.6.

¶ 98. Frankly, I find incredible the Majority's assertion in footnote 6 that, in essence, this case has naught to do with Wayne E In my view, it has everything to do with Wayne E First, his attempt — thwarted by the circuit court when challenged — to exploit his mother's incompetence triggered judicial involvement in what Catherine E, when she was competent, entrusted to Linda L. Second, by removing Linda L. as her mother's guardian, the circuit court has, in essence, not only ignored Catherine E's legal directions, which she executed when she was fully competent, but has also given to Wayne E much of what he sought to accomplish by dragging his incompetent mother to the lawyer and having his mother revoke those legal directions. Third, Catherine E's determination that she wanted Linda L. to handle her affairs if she ever became incompetent has not only been overridden by the circuit court wdthout reference to the criteria mandated by James, but the circuit court in place of Linda L. has also installed lawyers whose record in this case shows their alignment with Wayne E Linda L. is in Connecticut, far-removed and is unable, therefore, to exercise fully the oversight over her mother's affairs that her mother wished, a choice Catherine E made while competent and fully aware that Linda L. lived in Connecticut. Indeed, this fact — Catherine E's choice of Linda L. even though Linda L. lived in Connecticut — strongly supports Linda L's decision to move Catherine E to Connecticut where Linda L. could fully and easily comply with her mother's washes. In light of the current situation in Milwaukee, the assurance given to us at oral argument by Wayne E's lawyer that Wayne E's "fingers *684are out of the pie; he has nothing to do with it," is not, in my view, wholly comforting.2

¶ 99. When I asked Wayne E's lawyer at oral argument about one of the circuit judges' findings that Wayne E had taken money from Catherine E's estate, the lawyer responded: "What does that have to do with the price of tea in China?" When asked again about this: "It is relevant to a best-interest determination though, as to who among these two children had the mother's best interests at heart. Isn't that a consideration that the court has to consider?" Wayne E's lawyer responded: "No. No, I don't believe that to be true." Sadly, despite Catherine E's stated desires when she was competent to express them, the Majority does not either.

¶ 100. When she gave Linda L. the powers of attorney, Catherine E was competent to protect her own interests. As Ronan's affidavit based on his personal observations points out, Catherine E deliberately chose Linda L. and not Wayne E to protect her interests if she ever became disabled, even though Wayne E lived in Milwaukee and Linda L. lived in Connecticut. Now that she is disabled, the legal system, the government, has vetoed Catherine E's choice, and the four lawyers involved (other than those retained by Wayne E and Linda L.) are feeding off of Catherine E's estate. This is money that Catherine E presumptively wanted to preserve not only for her post-disability comfort, but also to keep in trust for Wayne E Removing Linda L. as the decision-maker for her mother defeats not only Catherine E's wishes but also the legislative intent that *685persons be able to select someone they trust to manage their affairs when they are no longer competent. Accordingly, I respectfully dissent.

Catherine E and her husband Ernst H. E had a house in Florida.

The "it" presumably refers to the administration of his mother's affairs and estate.