Does a county court have the power to order an operation to be performed to remove a kidney of an incompetent ward, under guardianship of the person, and transfer it to a sister where the dire need of the transfer is established but where no consent has been given by the incompetent or his guardian ad litem, nor has any benefit to the ward been shown?
That is the issue presented on appeal here. The trial court held that it did not have that power and we agree. The appellant, Janice Pescinski Lausier, on her own petition, was appointed guardian of the person of her brother, the respondent, Richard Pescinski. In 1958, Richard was declared incompetent and was committed to Winnebago State Hospital. He has been a committed *6mental patient since that date, classified as a schizophrenic, chronic, catatonic type.
On January 31, 1974, Janice Pescinski Lausier petitioned for permission to Dr. H. M. Kauffman to conduct tests to determine whether Richard Pescinski was a suitable donor for a kidney transplant for the benefit of his sister, Elaine Jeske. Elaine had both kidneys surgically removed in 1970, because she was suffering from kidney failure diagnosed as chronic glomerulone-phritis. In order to sustain her life, she was put on a dialysis machine, which functions as an artificial kidney. Because of the deterioration of Elaine, the petition contended that a kidney transplant was needed. Subsequent tests were completed establishing that Richard was a suitable donor, and a hearing was then held on the subject of whether permission should be granted to perform the transplant. The guardian ad litem would not give consent to the transplant and the county court held that it did not have the power to give consent for the operation.
At the time of the hearing Elaine was thirty-eight and her brother Richard was thirty-nine. Evidence was produced at the hearing that the other members of the Pescinski family had been ruled out as possible donors on the basis of either age or health. The father, aged seventy, and the mother, aged sixty-seven, were eliminated as possible donors by Dr. Kauffman because, as a matter of principle, he would not perform the operation on a donor over sixty. A similar rationale was applied by Dr. Kauffman as to all of the six minor children of Elaine, the doctor concluding that he “would not personally use their kidneys” as a matter of his “own moral conviction.” Mrs. Jeske’s sister, Mrs. Lausier, was excluded as a donor because she has diabetes. Another brother, Ralph Pescinski, testified that he was forty-three years old, had been married twenty years *7and had ten children, nine of whom remained at home. He is a dairy farmer and did not care to be a donor because there would be nobody to take over his farm and he felt he had a duty to his family to refuse. He further testified that he had a stomach disorder which required a special diet and had a rupture on his left side. He had been to see Dr. Capati at the Neillsville Clinic, who told him he should not get involved and that his family should come first.
The testimony showed that Richard was suffering from schizophrenia — catatonic type, and that while he was in contact with his environment there was marked indifference in his behavior. Dr. Hoffman, the medical director at the Good Samaritan Home, West Bend, Wisconsin, testified that in layman’s terms Richard’s mental disease was a flight from reality. He estimated Richard’s mental capacity to be age twelve. No evidence in the record indicates that Richard consented to the transplant. Absent that consent, there is no question that the trial court’s conclusion that it had no power to approve the operation must be sustained.
“A guardian of the person has the care of the ward’s person and must look to the latter’s health, education, and support.” 1 The guardian must act, if at all, “loyally in the best interests of his ward.” 2 There is absolutely no evidence here that any interests of the ward will be served by the transplant.
As far as the court’s own power to authorize the operation, we are satisfied that the law in Wisconsin is clearly to the contrary. There is no statutory authority given the county court to authorize a kidney transplant or any other surgical procedure on a living person. We decline to adopt the concept of “substituted judgment” which was specifically approved by the Kentucky Court *8of Appeals in Strunk v. Strunk.3 In that case, the Kentucky court held a court of equity had the power to permit the removal of a kidney from an incompetent ward of the state upon the petition of his committee who was also his mother. Apparently a committee in Kentucky is like a guardian in this state. The Kentucky Court of Appeals authorized the operation based on the application of the doctrine of substituted judgment. However, the court also held that neither the committee nor the county court had the power to authorize the operation, in the absence of a showing that the life of the ward was in jeopardy — only the Court of Appeals had the power. In the instant case the county court had no power to authorize the procedure, and the question is whether this supreme court can by using the doctrine of substituted judgment.
As the dissenting opinion in Strunk v. Strunk points out, “substituted judgment” is nothing more than an application of the maxim that equity will speak for one who cannot speak for himself. Historically, the substituted judgment doctrine was used to allow gifts of the property of an incompetent. If applied literally, it would allow a trial court, or this court, to change the designation on a life insurance policy or make an election for an incompetent widow, without the requirement of a statute authorizing these acts and contrary to prior decisions of this court.4
We conclude that the doctrine should not be adopted in this state.
We, therefore, must affirm the lower court’s decision that it was without power to approve the operation, and we further decide that there is no such power in this court. An incompetent particularly should have his own interests protected. Certainly no advantage should be taken of him. In the absence of real consent on his part, *9and in a situation where no benefit to him has been established, we fail to find any authority for the county court, or this court, to approve this operation.
By the Court. — Order affirmed. No costs on this appeal.
39 Am. Jur. 2d, Guardian and Ward, p. 60, sec. 68.
Guardianship of Nelson (1963), 21 Wis. 2d 24, 32, 123 N. W. 2d 505. Cf. sec. 880.19 (6) (b), Stats.
(Ky. 1969), 445 S. W. 2d 145.
Kay v. Erickson (1932), 209 Wis. 147, 244 N. W. 625; Van Steenwyck v. Washburn (1884), 59 Wis. 483, 17 N. W. 289.