COURT OF APPEALS

DECISION

DATED AND FILED

August 19, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2020AP1754 Cir. Ct. No. 2020GN4

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN THE MATTER OF THE CONDITION OF L.W.:

DODGE COUNTY HEALTH AND HUMAN SERVICES,

 PETITIONER-RESPONDENT,

 V.

L. W.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Dodge County: 

BRIAN A. PFITZINGER, Judge. Affirmed. 

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2020AP1754

2

¶1 PER CURIAM. L.W. appeals orders for guardianship and 

protective placement. We affirm.1

¶2 We begin by reciting the applicable legal standards for guardianship 

of the person. A circuit court may appoint a guardian if the petitioner proves by 

clear and convincing evidence that the person, “because of an impairment, ... is 

unable effectively to receive and evaluate information or to make or communicate 

decisions to such an extent that the individual is unable to meet the essential 

requirements for his or her physical health and safety.” WIS. STAT. § 54.10(3)(a)2. 

¶3 Two important terms in that provision are defined. As relevant to 

this case, “impairment” is defined as a “serious and persistent mental illness.” 

WIS. STAT. § 54.01(14). In addition, “[m]eet the essential requirements for 

physical health or safety” means to “perform those actions necessary to provide 

the health care, food, shelter, clothes, personal hygiene, and other care without 

which serious physical injury or illness will likely occur.” Sec. 54.01(19).

¶4 L.W. also relies in part on a further provision: “Unless the proposed 

ward is unable to communicate decisions effectively in any way, the 

determination” to appoint a guardian under WIS. STAT. § 54.10(3)(a) “may not be 

based on mere old age, eccentricity, poor judgment, physical disability, or the 

existence of a supported decision-making agreement.” Sec. 54.10(3)(b). 

 

1

 This appeal is decided by a three-judge panel because, when a case involves both 

guardianship under WIS. STAT. ch. 54 (2019-20) and protective placement under WIS. STAT. ch. 

55 (2019-20), it is decided by a three-judge appeal. Waukesha Cnty. v. Genevieve M., 2009 WI 

App 173, ¶5, 322 Wis. 2d 131, 776 N.W.2d 640 (per curiam). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP1754

3

¶5 The applicable standard of review is mixed. We do not overturn the 

circuit court’s factual findings unless they are clearly erroneous, but the issue of 

whether the evidence satisfies the legal standards for guardianship and protective 

placement are questions of law. Walworth Cnty. v. Therese B., 2003 WI App

223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. The circuit court’s weighing of 

conflicting expert opinions is a finding of fact to which we defer. Id., ¶26.

¶6 Here, the circuit court found that L.W. is unable to effectively 

receive and evaluate information. L.W. asserts that inability to effectively receive 

and evaluate information is a legal conclusion that the court erred in making, and 

not a finding of fact to which we defer unless it is clearly erroneous. She cites no 

authority for that proposition, and we disagree with it. The question is one of 

causation, specifically, whether the person’s impairment causes an inability to 

effectively receive and evaluate information. As applied in this case, we regard 

the effects of L.W.’s mental illnesses on her mental process as a factual question. 

This is consistent with Therese B. See id., ¶¶21, 23-24. Further, even if this were

a legal conclusion, the result of this appeal would be the same. 

¶7 Two experts submitted reports and testified to differing opinions, 

one in support of the petition and one not. L.W. argues that the circuit court’s 

finding that she was unable to effectively receive and evaluate information was 

erroneous due to flaws in the testimony of the expert whose opinion supported the 

petition. 

¶8 In L.W.’s view, the flaw in this expert’s opinion is that he employed 

a faulty premise that bad decisions on L.W.’s part are sufficient to show that she 

was unable to effectively receive and evaluate information. This premise is 

flawed, she argues, because poor judgment and bad outcomes are not, by 
No. 2020AP1754

4

themselves, a basis for guardianship. She argues that there was no testimony that 

her types of mental illnesses necessarily impact a person’s understanding or 

decision-making. 

¶9 L.W.’s focus on the testimony of this expert fails to acknowledge the 

expert’s written report. When we look at the hearing testimony alone, L.W.’s 

description of the testimony is at least partially accurate. There is no testimony 

about her specific mental illnesses, how they affect her behavior, or how they 

cause her to be unable to effectively receive and evaluate information. There is 

only a generic statement, repeating the legal standard, that she has serious and 

persistent mental illness. But no specific illness is identified or described. 

¶10 However, the expert’s written report, which was received in 

evidence, provides more information, and we quote it at length: 

She is diagnosed with major depression by history, 

an adjustment disorder with a major personality disorder, 

history of schizoaffective disorder, history of cannabis use 

disorder but living in a restrictive environment, and 

developmental coordination disorder. This is characterized 

by poor judgement, lack of insight, impaired reasoning and 

planning....

As a result of this disorder she has impairments. 

She lacks the evaluative capacity to communicate and make 

decisions. In the area of person, she is not able to provide

medical care for herself, seek medical care, allow medical 

treatment, handle her catheter, clean herself and living area 

with her bowel and urine problem. She cannot shop for

groceries and other items. She refuses any supportive care. 

She believes that she can live entirely by herself but, then, 

admits that she cannot do the necessary actions to support 

herself.... She cannot find shelter which will accommodate 

her incontinence difficulties. She is a health and safety risk 

to herself due to infections. She cannot adapt to an 

emergency without assistance. 
No. 2020AP1754

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¶11 It is clear from this report that the expert did not, as L.W. argues, 

employ a premise that bad decisions on L.W.’s part are sufficient to show that she 

was unable to effectively receive and evaluate information. Instead, the expert 

described the effects of her mental illnesses, and opined that they cause her to lack 

the “evaluative capacity” to make decisions. 

¶12 L.W. also argues that the expert relied on his subjective belief as to 

what choices she should make, and applied a standard under which a person is 

competent only if she makes decisions that seem rational to others and that have 

good outcomes. L.W. asserts that many adults make decisions that would fail this 

standard by smoking, drinking alcohol and taking illegal drugs, or not taking

vaccinations and other medical care. 

¶13 We disagree with this argument. The expert used the proper 

measure, which is embedded in the statute: whether the person is unable to meet 

the essential requirements for his or her physical health and safety, which means 

being unable to “perform those actions necessary to provide the health care, food, 

shelter, clothes, personal hygiene, and other care without which serious physical 

injury or illness will likely occur.” WIS. STAT. § 54.01(19). 

¶14 This definition establishes that the types of decisions by others that 

L.W. refers to would not be a basis for guardianship under this provision. For 

example, smoking may, in the long run, cause serious illness, but it does not do so 

by making the person unable to obtain health care, food, shelter, clothes, personal 

hygiene, or other care. For a guardianship to be appropriate, those are the effects 

that the person’s impairment must cause. The statute does not, as L.W. suggests, 

encompass all decisions that may lead to serious injury or illness, and that is what 
No. 2020AP1754

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makes L.W.’s situation substantively different from the types of decisions that she 

attempts to equate her situation to. 

¶15 To the extent that L.W. is arguing that the expert’s conclusion was 

contrary to the paragraph which provides that a guardianship generally may not be 

based on “poor judgment,” see WIS. STAT. § 54.10(3)(b), that paragraph does not 

mean that evidence of poor judgment cannot be considered at all in any stage of 

applying the statutory standard. Instead, a court may consider whether poor 

judgment that has been shown was the product of an impairment, such as serious 

and persistent mental illness. If it is not, then this paragraph clarifies that mere 

poor judgment not caused by an impairment is not a basis for guardianship. 

However, here, as we quoted above, the expert regarded poor judgment as a 

feature of L.W.’s mental illnesses. Thus, it is appropriate to consider the ways in 

which that poor judgment makes her unable to meet her needs.

¶16 L.W. asserts that the circuit court erred by basing its decision in part 

on the court’s difficulty in understanding L.W.’s motivations to make decisions 

that have bad outcomes. However, motivation is a proper consideration. In 

indicating that L.W.’s motivation for making decisions with bad outcomes is 

difficult to understand, the court was reasonably implying that the decisions were

coming from a source other than rational motivation, namely, mental illness. 

¶17 L.W. argues that the circuit court “took a paternalistic approach” in 

which it found her incompetent because a guardian could make better decisions 

about her health than she can. As we have discussed, the court’s decision was 

based on more than just the quality and outcomes of her decisions. Instead, the 

court found that they were the product of serious and persistent mental illness.
No. 2020AP1754

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¶18 Finally, L.W. also relies on the opinions of the expert who did not 

support the petition. However, in reviewing findings of fact, we do not search for 

evidence that supports findings the court did not make. See Dickman v. Vollmer, 

2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202. It was, as we have 

stated, up to the circuit court to weigh the conflicting expert opinions.

¶19 L.W. also argues that the court erred by ordering a guardian of the 

estate. For guardianship of the estate, as relevant to this case, the standard is 

whether L.W.’s mental illnesses caused her to be unable to effectively receive and 

evaluate information related to the management of her property or financial affairs 

to the extent that: (1) her property will be dissipated in whole or part; (2) she is 

unable to provide for her support; or, (3) she is unable to prevent financial 

exploitation. WIS. STAT. § 54.10(3)(a)3.

¶20 L.W. argues that the County failed to prove any of these three 

possible outcomes. The circuit court’s oral decision did not discuss these points. 

The court’s written form order includes a check box that the court uses to indicate 

that the person meets one of these standards, but without indicating which 

standard is met. 

¶21 L.W. asserts that the County did not introduce any evidence that she 

was without support or that her bills went unpaid at any time. This is inaccurate. 

It omits the history, which she does not factually dispute, of her spending her 

income for non-essential items, while allowing her electricity to be shut off for 

nonpayment. In addition, L.W. fails to acknowledge the events that led her, on 

November 7, 2019, to be staying at a hotel, with no more money for the remainder 

of the month for shelter, food, or other essentials. These facts satisfy the legal 

standard of being unable to provide for her support.
No. 2020AP1754

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¶22 L.W. argues that the fact that she chooses to spend money on nonessential items does not prove that she is unable to receive and evaluate 

information. This argument is similar to one we rejected above regarding 

guardianship of the person, and we reject this one for the same reason: the 

relevant finding was based on more than simply the fact that her choices led to bad 

outcomes. 

¶23 L.W. also argues that the order for protective placement should be 

reversed. She argues that the circuit court failed to make the required finding that 

she is “totally incapable” of providing for her own care or custody, creating a 

substantial risk of serious harm to herself or others. See WIS. STAT. § 55.08(1)(c). 

While it is true that the court’s oral ruling did not directly address this point, other 

than saying that “there is a need for” protective placement, the written check box 

form order includes this finding. 

¶24 L.W. argues that the finding was clearly erroneous because she is not 

“totally incapable” of providing for her own care, and that the evidence instead 

shows that she is capable of accessing medical or other services when necessary. 

We reject this argument because the record amply demonstrates that her attempts 

to access services have occurred mainly after she has already placed herself at 

substantial risk of serious harm through her conduct. 

¶25 L.W. also argues that the court’s decision disregards the distinction 

between refusing care and being incapable of providing for one’s care. However, 

when as here the circuit court has a reasonable basis to find that the person’s 

refusal was the product of mental illness, there is no meaningful distinction.
No. 2020AP1754

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By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.