Knight v. Milwaukee County

DIANE S. SYKES, J.

¶ 57. {dissenting). The majority concludes that Muriel K. is a "person aggrieved" by the guardianship order, and that the Knights, as Muriel K.'s agents under her health care and durable powers of attorney, have standing to appeal on her behalf under Wis. Stat. § 879.27(1). While I certainly agree with the first proposition, I disagree with the second, at least under the circumstances of this case.

*37¶ 58. As the majority notes, the Knights do not argue that they were personally aggrieved by the guardianship order; they wish to appeal only on behalf of Muriel K., by virtue of their status as her health care and durable power of attorney agents. In other words, they appear in a representative capacity only, asserting no personal rights or interests of their own, only those of Muriel K. The question, therefore, is not so much whether the Knights have standing to appeal, but whether Muriel K. has standing to appeal and the Knights have authority to do so as her surrogates.

¶ 59. As the subject of the guardianship petition and order, Muriel K. unquestionably qualifies as a "person aggrieved" for purposes of standing to appeal under Wis. Stat. § 879.27(1). Where, as here, the "person aggrieved" is a minor or incompetent, Wis. Stat. § 879.27(4) specifies who may bring the appeal: "[i]n all cases the appeal on behalf of any minor or incompetent person may be taken and prosecuted by the guardian of the minor's or incompetent's estate or by a guardian ad litem."

¶ 60. Despite this rather straightforward and conclusive language ("in all cases"), the majority reads the statute as nonexclusive, leaving open the possibility that in some cases someone other than the guardian of the estate or the guardian ad litem may appeal on behalf of a minor or incompetent under Wis. Stat. § 879.27(1) and (4). This conclusion conflicts with In re Guardianship of McLaughlin, 101 Wis. 672, 78 N.W 144 (1899), which the majority does not overrule but merely dismisses as irrelevant. Majority op. at ¶ 44. But McLaughlin is directly on point, and, while old, remains good law, as the court of appeals correctly noted. See Knight v. Milwaukee County, 2001 WI App 147, ¶ 21 n.5, 246 Wis. 2d 691, 633 N.W2d 222.

*38¶ 61. In McLaughlin, an uncle, claiming to represent the interests of his brother's children as well as his own, petitioned for the removal of the children's mother as their guardian, alleging misconduct and waste. McLaughlin, 101 Wis. 2d at 672. When the petition was denied, the uncle appealed, and this court rejected the appeal, citing a predecessor statute to Wis. Stat. § 879.27. Noting that the uncle conceded he lacked standing to appeal in his individual capacity, this court addressed whether he could appeal in a representative capacity on behalf of the minors. The court concluded that the statute specifying who may appeal on behalf of a minor was exclusive:

Sec.[tion] 4031, Stats. 1898, provides that 'the appeal of any minor may be taken in and prosecuted in the name of the general guardian of such minor or by a guardian ad litem appointed for that purpose.' No reason appears to us why this court should enlarge or diminish this statute. It must be deemed exclusive. While the duty is not upon this court to find reasons for plain legislation, we may remark that it is of primary importance that the proceedings of county courts, with the important property interests placed in their care, should not be interrupted by unwarranted appeals, nor the rights of minors therein jeopardized, and their estates burdened with expense, at the discretion of people having no authority to represent them, and who in many cases may be antagonistic to their interests. Compliance with the statute is easy, and no doubt can be entertained at any time county courts will certify to the qualifications of some proper person to care for the minors' interests, by conferring upon him an appointment as guardian ad litem when the occasion demands.

McLaughlin, 101 Wis. at 674 (emphasis added).

¶ 62. Here, the Knights seek to appeal on behalf of Muriel K., just as the uncle in McLaughlin sought to *39appeal on behalf of his brother's children. The statutes at issue are almost identical. Yet here, the majority reaches the opposite conclusion, interpreting the statute as nonexclusive. McLaughlin, and the plain language of the statute, cannot be so easily disregarded.

¶ 63. Even assuming the majority has correctly interpreted the statute,1 its conclusion that the Knights may appeal on behalf of Muriel K. remains flawed. The Knights' authority to act on Muriel K.'s behalf as her health care and durable power of attorney agents is statutorily subordinate to the authority of the court-appointed fiduciaries, and does not survive the appointment of a guardian unless the circuit court says so.

¶ 64. Here, the circuit court specifically ordered the health care and durable powers of attorney revoked, terminating any and all authority the Knights had to act as Muriel K.'s agents, including, necessarily, any authority to prosecute an appeal on her behalf. Accordingly, while Muriel K. has standing to appeal the guardianship order, and one of her court-appointed fiduciaries may do so on her behalf, the Knights may not, because their agency under the health care and durable powers of attorney no longer exists.

¶ 65. Health care and durable powers of attorney are governed by statute, and the legislature has set *40forth a clear hierarchy of authority as between health care and durable power of attorney agents nominated in a written advance directive and guardians appointed by the court. The authority of court-appointed fiduciaries supersedes that of agents nominated in written advance directives.

¶ 66. Chapter 155 provides that a health care power of attorney is automatically revoked by a finding of incompetency and appointment of a guardian, unless the court orders it continued:

If a court under s. 880.33 determines that an individual who is a principal is incompetent or makes a finding of limited incompetency under s. 880.33(3) and appoints a guardian for the individual, the power of attorney for health care executed under this chapter by the principal is revoked and the power of attorney for health care instrument is invalid, unless the court finds that the power of attorney for health care and power of attorney for health care instrument should remain in effect. If the court makes this finding, the guardian for the individual may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent.

Wis. Stat. § 155.60(2) (emphasis added).

¶ 67. Similarly, the Uniform Durable Power of Attorney Act, Wis. Stat. § 243.07 ("the Act"), provides that a durable power of attorney agent is accountable to any court-appointed fiduciary, such as a guardian, and that the fiduciary may revoke the power of attorney on behalf of the principal:

(3) RELATION OF AGENT TO COURT-APPOINTED FIDUCIARY, (a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all *41of the principal's property or all of his or her property except specified exclusions, the agent is accountable to the fiduciary as well as to the principal. Unless the court finds that the durable power of attorney should remain in effect, the fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated.

Wis. Stat. § 243.07(3) (emphasis added).

¶ 68. To avoid a conflict between an agent and a court-appointed guardian, the Act allows a principal to nominate a guardian in a durable power of attorney, and requires the appointment of the nominated guardian, with limited exceptions:

A principal may nominate, by a durable power of attorney, the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

Wis. Stat. § 243.07(3)(b) (emphasis added).

¶ 69. The statutory scheme is therefore very clear: individuals may nominate agents to act on their behalf in the event they are disabled or incapacitated. Those agents are empowered to act for the principal pursuant to the advance directive if disability or incapacity occurs, in the absence of and without having to initiate formal guardianship proceedings. But if a formal guardianship proceeding is commenced and a guardian appointed, any agency established by an advance directive is automatically revoked or revocable by the guardian, unless the court orders otherwise. The court-appointed guardian thereafter speaks and acts for *42the principal, not the former health care or durable power of attorney agent. If the durable power of attorney nominates a guardian in addition to an agent (and this may be the same person), the court must appoint the nominated guardian unless there is good cause not to, or the nominated guardian is disqualified.

¶ 70. The majority opinion upsets this statutory hierarchy, and confers standing to appeal on agents whose power to act for the principal has been nullified. There is no authority for this conclusion, and the majority essentially admits as much, relying instead on the notion that the legislature must have assumed that agents would have the authority to appeal because the Act allows delegation of the power to litigate. Majority op. at ¶ 33. But the power to litigate, if indeed conferred by a durable power of attorney, is only good as long as the document remains in effect. The majority does not explain how it independently survives the revocation of the power of attorney.

¶ 71. The majority also relies on two cases from other jurisdictions, but acknowledges that neither addressed the standing issue.2 Majority op. at ¶ 39. Nevertheless, the majority pronounces its conclusion "consistent with other states' interpretations of the Act." Id. It is hard to understand how one court's conclusion can be consistent with another's if the other did not even address the same issue.

¶ 72. Muriel K. did not nominate the Knights as her guardians, although she could have done so in her durable power of attorney and the circuit court would have been required to appoint them absent a showing of good cause or disqualification. Whether there would *43have been good cause to disregard their nomination (had they been nominated), or to disqualify them, is not before us.3 As it stands, the Knights are former health care and durable power of attorney agents. Muriel K. now has court-appointed guardians of her estate and person, as well as adversary counsel and a guardian ad litem.

¶ 73. The law, therefore, no longer recognizes the Knights as agents for Muriel K, and they have no power or standing to speak or act for her in a representational capacity at all. They could not, under these circumstances, purport to make financial or medical decisions for her under either the health care or durable power of attorney documents, because those documents have been revoked. How is it that they retain the authority to make legal decisions for her, such as whether to appeal? They do not have that authority, only the court-appointed guardians do, and the majority's conclusion to the contrary is simply wrong. For these reasons, I respectfully dissent.

*44¶ 74. I am authorized to state that Justices JON E WILCOX and N. PATRICK CROOKS join this opinion.

Guardianship of Smith, 684 N.E.2d 613 (Mass. App. Ct. 1997); In re Sylvester, 598 A.2d 76 (Pa. Super. Ct. 1991).

Muriel K. is a 78-year-old unmarried woman with no children and substantial assets. Jeffrey Knight is her 38-year-old groundskeeper; Norris Knight is Jeffrey's father. During the time period in question, the Knights apparently saw Muriel nearly every day. This case was begun as an emergency protective placement due to Muriel K.'s extremely precarious physical and mental condition. The Milwaukee County Department on Aging received a complaint that the Knights were exploiting Muriel K. A caseworker responding to the complaint found her essentially nonresponsive, or at best extremely disoriented, and her diagnosis upon admission to the hospital was malnutrition and dehydration. She fell into this condition within two months of executing the powers of attorney in favor of the Knights and amending her will to designate them as beneficiaries.