COURT OF APPEALS

DECISION

DATED AND FILED

November 15, 2022

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. 2021AP1912 Cir. Ct. No. 2020GN214

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE MATTER OF THE GUARDIANSHIP AND 

PROTECTIVE PLACEMENT OF M. B.:

F. A. W.,

 PETITIONER-RESPONDENT,

 V.

M. B.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Brown County: 

TIMOTHY A. HINKFUSS, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, 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. 2021AP1912

2

¶1 PER CURIAM. Mae1appeals the circuit court’s finding that she is 

incompetent and the resulting order establishing the guardianship of her person 

and of her estate under WIS. STAT. ch. 54 (2019-20),

2

as well as an order for her 

protective placement under WIS. STAT. ch. 55. Mae argues that the circuit court’s

finding of incompetency should be reversed because the court failed to make the 

requisite findings of fact under WIS. STAT. § 54.10(3)(a) and because there was 

insufficient evidence to support findings under § 54.10(3)(a)2. and 3. Mae also 

contends that the court failed to order the least restrictive protective placement. 

We reject Mae’s arguments and affirm.

BACKGROUND

¶2 In November 2020, Mae was admitted to a hospital after falling and 

hitting her head. At the time, Mae was seventy-five years old, her overall 

condition was noted as “poor,” and she was diagnosed with “hypokalemia, 

generalized weakness, altered mental status, and alcohol dependence.” Around 

this same time, Mae’s husband suffered a stroke. Both he and Mae were later 

moved to a skilled nursing home for their respective care.

¶3 In December 2020, Mae’s brother-in-law, Frank, petitioned for, and 

was granted, a temporary guardianship of Mae based on a “reasonable likelihood”

that she was incompetent. Shortly thereafter, Frank also petitioned for permanent 

guardianship of Mae’s person and her estate and for protective placement of Mae. 

 

1

 For ease of reading, we use pseudonyms in this confidential matter when referring to

the parties.

2

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

noted.
No. 2021AP1912

3

The circuit court subsequently appointed Dr. Kevin Miller to examine Mae with 

respect to her competency and her need for protective placement.

¶4 At an April 2021 hearing, Dr. Miller testified that he had evaluated 

Mae in the nursing home and prepared a report detailing his conclusions about her

competency, which were to a reasonable degree of professional certainty. Miller 

summarized some of his conclusions regarding Mae’s impairments, testifying that 

Mae had severely impaired memory, reasoning and executive functioning. He 

further noted that Mae had mild impairments with respect to her language and 

communication as well as her attention and concentration. Miller found, however, 

that Mae’s orientation to time and location was still intact.

¶5 Doctor Miller elaborated on some of these conclusions. He

described how Mae could not recall, after a thirty-minute delay, nearly any of the 

“story elements” from a formal memory test. Mae also could not recall who 

Miller was at the end of the evaluation, despite Miller introducing himself at the 

beginning of the evaluation and reminding Mae that they had met “a number of 

times at least ten years ago.” In addition, Miller testified that Mae “was not able 

to do any [hypothetical] calculations” involving simple monetary transactions, 

which was “a significant decline from her previous functioning.” Miller

acknowledged that Mae was still a “gifted communicator and socially adept,” but 

he recognized that Mae’s ability to communicate “mask[ed] some of her deficits.”

¶6 As a result of the evaluation, Dr. Miller formally diagnosed Mae 

with a “[m]ajor neuro-cognitive disorder due to dementia from alcohol use 

disorder,” which Miller believed was a permanent condition. Miller opined that 

Mae’s condition was the result of her “drinking herself almost to death basically 

and falling repeatedly.” Miller recommended that the circuit court order 
No. 2021AP1912

4

protective placement for Mae where she could have twenty-four-hour supervision 

in a secure setting. Miller conceded, however, that the nursing home in which 

Mae currently resided was not the least restrictive environment for her and that the 

least restrictive environment would be in a community-based residential facility 

(CBRF).

¶7 Lisa Moreland, a case manager with the Adult Protective Services 

unit in the Brown County Health and Human Services Department, also testified at 

the hearing. Moreland stated that she prepared a comprehensive evaluation of 

Mae, which involved reviewing Mae’s medical records, speaking to Mae, 

speaking to a social worker, and speaking to Frank. Based on her evaluation, 

Moreland agreed with Dr. Miller that Mae appears to “meet the criteria for a 

guardian of person and estate.” She also agreed that protective placement was 

appropriate. Moreland said that Mae needed twenty-four-hour supervision to 

monitor her alcohol consumption, her potential falls, and her nutrition.

¶8 Moreland acknowledged that a nursing home was not the least 

restrictive environment for Mae, but Moreland rejected the proposition that Mae 

could return home. Moreland recognized that the cost of twenty-four-hour care at 

home—which would be needed to keep Mae safe—would be “astronomically 

high.” Moreland testified that Mae and her husband likely had less than $365,000 

in their bank account and that it would cost approximately $15,000 to $20,000 per 

month for Mae to live at home, which did not account for Mae’s husband’s care or 

for the necessary modifications to the home. Moreland also noted that using 

protective services was not a feasible plan because Mae could refuse to allow

those services into her home.
No. 2021AP1912

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¶9 Mae also testified at the hearing. She stated that she wanted to live 

“in [her] home” and that she would be willing to accept “some” in-home services. 

She further stated, however, that around-the-clock care was not necessary because 

a care worker would have to use the bedroom on the first floor of the home, which 

Mae wanted her husband to use. Mae estimated that she received about $445 in 

social security per month. On cross-examination, Mae said that the ability to 

“enjoy [a] daily cocktail” was not a motivating factor for her request to live at 

home.

¶10 Following the witnesses’ testimony, Mae’s guardian ad litem (GAL) 

recommended that Frank be appointed guardian of Mae’s person and estate. The 

GAL rejected the idea of Mae returning home and recommended protective 

placement in a “CBRF type facility.”

¶11 The circuit court subsequently granted the petition for guardianship, 

and it appointed Frank as guardian of Mae’s person and estate. The court 

explained:

I do find that the statutory criteria for guardian of the 

person and of the estate have been met. I find that based 

upon the doctor’s report from Dr. Miller, his testimony and 

the testimony that was provided to me here today. 

I looked at the comprehensive evaluation of Ms. Moreland 

as well. And I think that was very informative as to what 

this case is all about.

¶12 The circuit court also granted the petition for protective placement. 

It found, based upon Dr. Miller’s report and testimony, “that the statutory criteria 

for the protective placement have been met.” The court additionally found that 

Mae had “a primary need for residential care and custody and that she is 

incapacitated as the doctor’s report indicates.” The court determined that Mae’s 
No. 2021AP1912

6

protective placement “should be at a CBRF or assisted living facility” with 

twenty-four-hour supervision. Although the court acknowledged Mae’s desire to 

live at home, the court recognized that the home was not currently a suitable 

environment because it was not modified to meet Mae’s needs.

¶13 After the hearing, the circuit court issued written orders granting the 

petitions for guardianship and protective placement. Mae now appeals. 

Additional facts will be provided as necessary below.

DISCUSSION

¶14 We employ a mixed standard of review to a circuit court’s decisions

to order guardianship and protective placement. We will not overturn a circuit 

court’s factual findings unless they are clearly erroneous. WIS. STAT. § 805.17(2); 

see also Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998). 

Whether the evidence satisfies the relevant legal standards, however, is a question 

of law that we review de novo. Coston, 222 Wis. 2d at 22.

I. The circuit court’s findings under WIS. STAT. § 54.10(3)(a)

¶15 A circuit court may establish the guardianship of an individual’s

person and estate if the court finds that the individual is incompetent under WIS.

STAT. § 54.10(3)(a). Section 54.10(3)(a) provides that a court can find an 

individual incompetent “only if the court finds by clear and convincing evidence 

that all of the following are true:”

1. The individual is aged at least 17 years and 9 months.

2. For purposes of appointment of a guardian of the person, 

because of an impairment, the individual is unable 

effectively to receive and evaluate information or to make 

or communicate decisions to such an extent that the 
No. 2021AP1912

7

individual is unable to meet the essential requirements for 

his or her physical health and safety.

3. For purposes of appointment of a guardian of the estate, 

because of an impairment, the individual is unable 

effectively to receive and evaluate information or to make 

or communicate decisions related to management of his or 

her property or financial affairs, to the extent that any of the 

following applies:

a. The individual has property that will be dissipated in 

whole or in part.

b. The individual is unable to provide for his or her support.

c. The individual is unable to prevent financial exploitation.

4. The individual’s need for assistance in decision making 

or communication is unable to be met effectively and less 

restrictively through appropriate and reasonably available 

training, education, support services, health care, assistive 

devices, a supported decision-making agreement under 

[WIS. STAT.] ch. 52, or other means that the individual will 

accept.

¶16 Mae argues that the circuit court’s finding of incompetency must be 

reversed because the court failed to make specific findings of fact with respect to 

each element set forth in WIS. STAT. § 54.10(3)(a). According to Mae, 

§ 54.10(3)(a) expressly requires separate findings as to each element in the statute

before a court can find that an individual is incompetent. Mae therefore contends 

that the court violated § 54.10(3)(a) by not discussing each of the required findings 

in its oral decision but by stating simply: “[T]he statutory criteria for guardian of 

the person and of the estate have been met.”

¶17 We agree with Mae’s general proposition that a circuit court is 

required to make specific findings of fact with respect to each element set forth in 

WIS. STAT. § 54.10(3)(a). As expressly provided in § 54.10(3)(a), a court may 

find that an individual is incompetent for purposes of guardianship “only if the 
No. 2021AP1912

8

court finds by clear and convincing evidence that all of the [subdivisions in 

§ 54.10(3)(a)] are true.” See id. (emphasis added). Put differently, the 

subdivisions in § 54.10(3)(a) are the ultimate facts needed to find a person 

incompetent for purposes of guardianship. See Ultimate fact, BLACK’S LAW 

DICTIONARY (11th ed. 2019) (“A fact essential to the claim or the defense.”). 

Significantly, in all matters tried without a jury, a court 

shall find the ultimate facts and state separately its 

conclusions of law thereon. The court shall either file its 

findings and conclusions prior to or concurrent with 

rendering judgment, state them orally on the record 

following the close of evidence or set them forth in an 

opinion or memorandum of decision filed by the court. 

WIS. STAT. § 805.17(2). By making the specific findings of fact set forth in 

§ 54.10(3)(a), the court protects the rights of the litigants and facilitates review of 

the record by an appellate court. See Hochgurtel v. San Felippo, 78 Wis. 2d 70, 

85, 253 N.W.2d 526 (1977).

¶18 Although a circuit court must make specific findings of fact with 

respect to each element set forth in WIS. STAT. § 54.10(3)(a), we reject Mae’s 

contention that the court failed to make the requisite findings in this case. After 

the evidentiary hearing, the court filed a “Determination and Order” using a 

standard court form: Form GN-3170 (Nov. 2020). This form order, which Mae 

fails to address in her argument, contains the court’s written findings of fact with 

language that mirrored each of the elements in § 54.10(3)(a). The completed form

reflects that the court specifically found each of the ultimate facts set forth in 

§ 54.10(3)(a). These findings are therefore minimally sufficient. See WIS. STAT.

§ 805.17(2) (“If an opinion or memorandum of decision is filed, it will be 

sufficient if the findings of ultimate fact and conclusions of law appear therein.”).
No. 2021AP1912

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¶19 We recognize that the circuit court made the minimum findings of 

fact required by law, but we suggest that a better practice is for circuit courts to 

state more detailed findings of fact on the record. Although we ultimately affirm 

the court’s orders, for reasons discussed further below, we caution that courts 

would be best advised to make more detailed findings of fact to further facilitate 

our review and—most importantly—to safeguard a litigant’s rights.

II. The sufficiency of evidence to support the circuit court’s findings

¶20 Mae argues that even if the circuit court made the requisite findings 

of fact, there is insufficient evidence to support a finding that she is incompetent. 

In particular, Mae challenges the sufficiency of evidence with respect to WIS.

STAT. § 54.10(3)(a)2. and 3.3

¶21 Mae has failed to show, however, that the circuit court’s findings 

under WIS. STAT. § 54.10(3)(a)2. and 3. are clearly erroneous. A circuit court’s 

findings of fact are not clearly erroneous unless they are against the great weight 

and clear preponderance of the evidence, even if the evidence may have presented 

competing factual inferences. State v. Wiskerchen, 2019 WI 1, ¶30, 385 Wis. 2d 

120, 921 N.W.2d 730. We will affirm a court’s findings of fact as long as the 

evidence would permit a reasonable person to make the same finding. Id. “We

 

3

 Although we do not discern Mae to be arguing that the evidence was insufficient to 

support a finding under WIS. STAT. § 54.10(3)(a)4., we nevertheless note that sufficient evidence 

supported such a finding. Doctor Miller opined in his report that less restrictive interventions—

such as training, education, support services, assistive devices, advanced planning, or a 

representative payee—would not eliminate Mae’s need for guardianship because “[h]er deficits 

were too severe.” Miller also testified at the evidentiary hearing that Mae’s condition was 

permanent.
No. 2021AP1912

10

search the record not for evidence opposing the circuit court’s decision, but for 

evidence supporting it.” Id.

¶22 The record contains sufficient evidence to support the circuit court’s 

finding that, because of her impairment, Mae “is unable effectively to receive and 

evaluate information or to make or communicate decisions to such an extent that 

[she] is unable to meet the essential requirements for ... her physical health and 

safety.”4 See WIS. STAT. § 54.10(3)(a)2. Doctor Miller testified that Mae’s 

condition at the time of her hospitalization was the result of “drinking herself 

almost to death basically and falling repeatedly,” notions which Mae “adamantly 

rejected.” Miller also noted that Mae could not recall why she was at the facility 

even though Miller and Mae had discussed the events in “some detail” an hour 

earlier in the evaluation. Miller stated that Mae “would drink herself to death and 

be malnourished unless she were supervised around the clock 24/7.” 

¶23 In addition, Dr. Miller’s report, which was introduced as an exhibit 

at the evidentiary hearing, reflected that Mae did not know what medications were 

prescribed to her, she disagreed that she had any impairments, and “she insisted 

she could live on her own in her home with no assistance.” The report also

contains Miller’s conclusion that Mae’s incapacity would interfere with her ability 

to meet the essential requirements of her health and safety. Miller testified at the 

evidentiary hearing that the conclusions in his report were to a reasonable degree 

of professional certainty.

 

4

 “‘Meet the essential requirements for physical health or safety’ means 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).
No. 2021AP1912

11

¶24 Moreland reiterated and agreed with many of Dr. Miller’s 

observations. She testified that Mae’s alcohol consumption, her recurrent falls, 

and her malnutrition all contributed to her hospitalization. Moreland also 

expressed concern about Mae’s judgment concerning medication, noting that Mae 

could not explain why she was prescribed certain medications but nonetheless 

believed she did not need those medications.

¶25 Sufficient evidence also supported the circuit court’s determination 

that, because of her impairment, Mae “is unable effectively to receive and evaluate 

information or to make or communicate decisions related to management of ... her 

property or financial affairs, to the extent that” Mae has property that will be 

dissipated in whole or in part, is unable to provide for her support, or is unable to 

prevent financial exploitation. See WIS. STAT. § 54.10(3)(a)3. Moreland testified 

that Mae had some financial resources, including social security and a recent

inheritance of about $365,000—although some of the inheritance had already been 

used to pay for nursing home care.

¶26 Doctor Miller also testified that, during the evaluation, Mae 

“couldn’t even begin to calculate” how much change she should receive if she had 

$20 and spent $8.50. His report also noted that Mae could not “calculate rent for a 

year if she knew the monthly total ($300).” Miller concluded in his report that 

Mae’s incapacity would interfere with her ability to manage her property and 

financial affairs, to address a risk of her property being dissipated in whole or in 

part, to provide for her own support, and to prevent financial exploitation. Again, 

Miller testified at the evidentiary hearing that these conclusions were to a 

reasonable degree of professional certainty.
No. 2021AP1912

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¶27 Mae’s argument with respect to the sufficiency of evidence is largely 

centered on her ability to communicate, which Dr. Miller found to be only mildly 

impaired. Mae points out that she is “a gifted communicator and socially adept” 

and that she “clearly and rationally” communicated “her desire to go home” at the 

hearing.

¶28 Be that as it may, Mae’s ability to communicate, by itself, does not 

show the circuit court’s findings of fact are clearly erroneous. An individual’s 

inability to effectively communicate, because of his or her impairment, is one 

potential basis for a court to find that WIS. STAT. § 54.10(3)(a)2. and 3. have been 

satisfied, but a court can also base its findings on an individual’s inability to 

effectively receive and evaluate information or to effectively make decisions. See 

§ 54.10(3)(a)2. and 3. (“[B]ecause of an impairment, the individual is unable 

effectively to receive and evaluate information or to make or communicate 

decisions ....” (emphasis added)). In other words, a court’s findings under 

§ 54.10(3)(a)2. and 3. could be supported by sufficient evidence even if it were 

undisputed that the individual had strong communication skills. Here, the 

evidence largely focused on how Mae’s severely impaired “memory,” “reasoning”

and “executive functioning” interfered with her ability to effectively receive and 

evaluate information and to effectively make decisions. Accordingly, even if the 

court credited testimony that Mae had strong communication skills, sufficient 

evidence still supported the court’s findings under § 54.10(3)(a)2. and 3.

¶29 In sum, there was sufficient evidence to support the circuit court’s 

findings under WIS. STAT. § 54.10(3)(a)2. and 3. The evidence permitted a 

finding that, due to her impairment, Mae would be unable to meet the essential 

requirements for her physical health and safety because she could not effectively 

receive and evaluate information or effectively make decisions. See
No. 2021AP1912

13

§ 54.10(3)(a)2. The evidence also permitted a finding that Mae could not, because 

of her impairment, effectively receive and evaluate information or effectively 

make decisions related to the management of her property or financial affairs, to 

the extent that Mae has property that will be dissipated in whole or in part, is 

unable to provide for her support, or is unable to prevent financial exploitation.5 

See § 54.10(3)(a)3.

III. The circuit court’s finding of the least restrictive protective placement

¶30 Mae next argues that the circuit court “failed to order the least 

restrictive manner of placement consistent with [her] needs.” She contends that 

she should be “permitted to choose between” in-home care and a residential 

facility.

¶31 Mae’s arguments largely ignore our standard of review. If a court 

orders protective placement—as the circuit court did in this case—the placement 

“shall be provided in the least restrictive environment and in the least restrictive 

manner consistent with the needs of the individual to be protected and with the 

resources of the county department.” See WIS. STAT. § 55.12(3); see also WIS.

STAT. § 54.01(18) (defining “least restrictive”). Whether a protective placement is 

in the least restrictive environment and is in the least restrictive manner are

questions of fact, which we review under the clearly erroneous standard. See

 

5

 Mae argues that if the circuit court failed to find her incompetent or if the evidence did 

not support the incompetency finding, then the protective placement order must be reversed. See

WIS. STAT. § 55.08(1)(b) (requiring an adult individual to have been determined incompetent by a 

circuit court before a court can order protective placement). For the reasons explained earlier, 

however, the court made the requisite findings of fact under WIS. STAT. § 54.10(3)(a) and those 

findings were supported by sufficient evidence. Therefore, the protective placement order cannot 

be reversed under § 55.08(1)(b). Mae does not challenge any of the court’s other findings of fact 

under § 55.08(1).
No. 2021AP1912

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Fond du Lac County v. J.G.S., Jr., 159 Wis. 2d 685, 687, 465 N.W.2d 227 

(Ct. App. 1990) (applying clearly erroneous standard to a finding of the “least 

restrictive placement”).

¶32 Here, the circuit court found that the least restrictive protective 

placement for Mae would be in a secure setting, at either a CBRF or an assisted 

living facility, with twenty-four-hour supervision and monitored egress. The court 

also expressly rejected the alternative idea of Mae returning home. The court’s 

protective placement order subsequently directed that Mae “should be relocated 

[from the nursing home] to a CBRF when an appropriate facility willing to accept 

[Mae] is identified and arrangements can reasonably be made for an orderly 

transfer.”6

¶33 The evidence in the record would permit a reasonable person to 

make these same findings. See Wiskerchen, 385 Wis. 2d 120, ¶30. Both 

Dr. Miller and Moreland recommended that Mae be transferred to a CBRF as soon 

as possible and that she be under twenty-four-hour supervision. They also

testified that such a placement would be the least restrictive environment for Mae. 

In addition, Moreland outright rejected the notion that Mae could return home. 

She testified that returning home was not economically feasible because: (1) Mae

and her husband likely had less than $365,000 in their bank account; 

(2) twenty-four-hour supervision at home would cost an estimated $15,000 to 

$20,000 per month; (3) modifying the home to make it safe would further deplete 

 

6

 Although Mae appears to suggest that the protective placement order improperly kept 

her in the nursing home until arrangements could be made for a CBRF, she does not develop any 

argument or cite any legal authority in support of that notion. Therefore, we need not address the 

issue. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need 

not address an argument that is undeveloped and unsupported by legal authority).
No. 2021AP1912

15

their assets; and (4) Mae’s husband also needed significant care which would 

impose additional expenses.

¶34 Mae challenges Moreland’s testimony by arguing that her care 

would be “extremely expensive” at either her home or a residential facility. She 

also argues that her husband’s placement was not relevant to the circuit court’s 

determination of the least restrictive environment for her.

¶35 Both of these arguments, however, are misplaced. Mae does not 

identify any evidence in the record to support her argument that care in a CBRF 

would cost equal to or more than the estimated $15,000 to $20,000 per month for 

her to have in-home care with twenty-four-hour supervision. Mae also fails to 

recognize that Moreland’s testimony regarding Mae’s husband largely focused on 

the cost of care for both Mae and her husband. Moreland testified that the

estimated cost of in-home care for Mae does “not tak[e] into account [Mae’s 

husband’s] need for care, whether it’s at home or in another facility. That will 

also be an expense that [affects their assets].” Thus, Moreland’s testimony 

regarding Mae’s husband was relevant because Mae’s husband’s care would 

ultimately affect Mae’s ability to afford in-home care with twenty-four-hour 

supervision.

¶36 Mae also asserts that both Dr. Miller and Moreland “agreed that 

[Mae] could go home with protective services.” We, however, cannot find any

support for this assertion in the record. In addition to Moreland’s concerns about 

the economic feasibility of Mae returning home, Moreland also explained that 

using protective services was “not a feasible plan” because Mae could refuse to 

allow those services into her home. Although Miller testified that it would be 

“theoretically possible” for Mae to return home if she had sufficient assets to pay 
No. 2021AP1912

16

for modifications to her home and for twenty-four-hour supervision, Miller

acknowledged that he did not know the specific details of Mae’s financial 

situation. Thus, the circuit court could reasonably credit Moreland’s testimony

that using protective services in Mae’s home was not a viable option.

¶37 In short, the circuit court’s finding of the least restrictive protective 

placement for Mae was not clearly erroneous.

By the Court.—Orders affirmed.

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

RULE 809.23(1)(b)5.