COURT OF APPEALS

DECISION

DATED AND FILED

September 9, 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. 2021AP322 Cir. Ct. No. 2020GN38

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

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

SAUK COUNTY,

 PETITIONER-RESPONDENT,

 V.

W. B.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Sauk County: 

MICHAEL P. SCRENOCK, Judge. Affirmed. 

Before Kloppenburg, Graham, and Nashold, JJ.

¶1 NASHOLD, J. W.B. appeals circuit court orders for guardianship 

and protective placement. W.B. does not dispute that he meets the pertinent 

statutory criteria for guardianship and protective placement under WIS. STAT.
No. 2021AP322

2

§§ 54.10(3)(a) (2019-20)1and 55.08(1), respectively. W.B. argues, however, that 

his health care power of attorney renders guardianship (and, by extension,

protective placement) unnecessary. See WIS. STAT. § 54.46(1)(a)2. (the circuit 

court “shall dismiss the petition” for guardianship if “[a]dvance planning by the 

ward, as specified in [§] 54.10(3)(c)3., renders guardianship unnecessary”); 

§ 54.10(3)(c)3. (“advance planning” includes a health care power of attorney 

under WIS. STAT. ch. 155); see also WIS. STAT. § 55.06 (protective placement may 

be ordered only for an individual “adjudicated incompetent”); WIS. STAT.

§ 54.01(16) (an “‘[i]ndividual found incompetent’ means an individual who has 

been adjudicated by a court as meeting the [guardianship] requirements of 

[§] 54.10(3)”). 

¶2 We disagree that W.B.’s health care power of attorney renders

guardianship and protective placement unnecessary. Accordingly, we affirm. 

BACKGROUND

¶3 The following facts are not in dispute. In 2012, W.B. executed a 

durable power of attorney and a health care power of attorney, each naming his 

son, J.B., as agent. In 2015, W.B. suffered a stroke and was found to be 

incapacitated, and his health care power of attorney was activated.2 At J.B.’s 

 

1

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

noted.

2

 Unless the power of attorney instrument states otherwise, “an individual’s power of 

attorney for health care takes effect upon a finding of incapacity by 2 physicians ... or one 

physician and one licensed advanced practice clinician, who personally examine the principal and 

sign a statement specifying that the principal has incapacity.” WIS. STAT. § 155.05(2). 

“‘Incapacity’ means the inability to receive and evaluate information effectively or to 

communicate decisions to such an extent that the individual lacks the capacity to manage his or 

her health care decisions.” WIS. STAT. § 155.01(8).
No. 2021AP322

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direction, W.B. was placed in a nursing home facility with twenty-four-hour 

supervision. W.B. has lived there since. 

¶4 In 2020, the County filed the instant petitions for guardianship of the 

person and the estate and for protective placement. The County also filed 

accompanying reports of an examining physician and an examining psychologist. 

In addition, the circuit court ordered and received reports from a County social 

worker and an independent evaluator. According to one or more of these reports, 

W.B. had repeatedly expressed the wish to leave his nursing home, for example,

by moving to a cabin that he owned in northern Wisconsin. W.B. stated that he 

planned to ask a member of the nursing staff to marry him and that the nurse had 

agreed to live with him and assist him. In reality, there was no such agreement,

and W.B. could not safely care for himself. Thus, the nursing home sought the 

County’s intervention on the grounds that guardianship and protective placement 

were necessary to prevent W.B. from moving out of the facility. 

¶5 The circuit court held a hearing at which three examining experts

and two County social workers testified to W.B.’s need for guardianship and 

protective placement under the statutory standards. See WIS. STAT.

§§ 54.10(3)(a), 55.08(1). The parties further disputed the legal effect of W.B.’s 

existing powers of attorney. According to the County and W.B.’s guardian ad 

litem, the court needed to invalidate these directives and order guardianship and 

protective placement to prevent W.B. from moving out of the nursing home. The 

County argued, “[A]s the [c]ourt is well aware, the power of attorney cannot 

mandate placement, [so] when a proposed ward starts saying they’re going to 

leave ... something has to be done.” W.B., in contrast, argued that under WIS.

STAT. § 54.46(1)(a)2., the court was required to dismiss the petitions because 

W.B.’s health care power of attorney rendered them unnecessary. Specifically, 
No. 2021AP322

4

W.B. pointed to a provision in the health care power of attorney, which states, 

“[T]his designation will permit my designee to ... authorize my admission to or 

transfer from a health care facility.” 

¶6 In attempting to resolve this dispute, the circuit court asked the 

parties whether, without a protective placement order, there was “any legal 

impediment to” W.B.’s leaving the facility. W.B.’s counsel repeatedly responded 

that he did not know the answer to this question; nor did he dispute the County’s 

representation that a power of attorney instrument does not allow an agent to 

“mandate placement” over the principal’s objection. 

¶7 Based on these representations, the circuit court declined to dismiss 

the petitions, noting that the issue of whether W.B. could leave the nursing home 

without a protective placement order was “the whole reason that we’re here.” The 

court found that W.B. had made “statements to multiple people that he intended to 

go live at his cabin up north”; that W.B. had stated that he would marry someone

who would take care of him; that no one had in fact agreed to undertake that role;

and that W.B.’s failure “to actually leave the nursing home facility” was in part 

due to the “level of supervision that he currently receives there.” The court further 

determined that W.B. met the statutory criteria for guardianship of the person and 

estate and for protective placement, and it entered those respective orders. The

guardianship order revokes the powers of attorney and names J.B. as guardian.

W.B. appeals. 
No. 2021AP322

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DISCUSSION

I. Principles of Law and Standard of Review

¶8 The criteria for a guardianship are set forth in WIS. STAT.

§ 54.10(3)(a). Pertinent here, to obtain guardianship of the person,3the petitioner 

must first prove that, “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 individual is unable to meet the essential 

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

“‘Impairment’ means a developmental disability, serious and persistent mental 

illness, degenerative brain disorder, or other like incapacit[y].” WIS. STAT.

§ 54.01(14). Second, the petitioner must show that “[t]he 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 decisionmaking agreement under [WIS. STAT.] ch. 52, or other means that the individual 

will accept.” Sec. 54.10(3)(a)4. These elements must be established by clear and 

convincing evidence. Sec. 54.10(3)(a).

¶9 The criteria for protective placement of an adult are as follows: 

(1) “[t]he individual has a primary need for residential care and custody”; (2) “the 

individual ... has been determined to be incompetent by a circuit court”; (3) “[a]s 

a result of a developmental disability, degenerative brain disorder, serious and 

 

3

 The guardianship order was for both W.B.’s person and his estate. W.B. makes no 

argument specifically relating to the guardianship of his estate versus his person. Therefore, we 

do not separately discuss the standard related to guardianship of the estate. 
No. 2021AP322

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persistent mental illness, or other like incapacit[y], the individual is so totally 

incapable of providing for his or her own care or custody as to create a substantial 

risk of serious harm to himself or herself or others”; and (4) the “disability ... is 

permanent or likely to be permanent.” WIS. STAT. § 55.08(1). These elements 

also must be proved by clear and convincing evidence. WIS. STAT. § 55.10(4)(d).

¶10 As previously noted, W.B. does not dispute that the evidence is 

sufficient to support orders for guardianship and protective placement. He

maintains, however, that his health care power of attorney renders these orders 

unnecessary. Specifically, he relies on WIS. STAT. § 54.46(1)(a)2., which provides 

that the circuit court “shall dismiss the petition” for guardianship if it finds that 

“[a]dvance planning by the ward, as specified in [WIS. STAT. §] 54.10(3)(c)3., 

renders guardianship unnecessary.” Section 54.10(3)(c)3., in turn, specifies that 

“advance planning” includes a health care power of attorney under WIS. STAT.

ch. 155.

4

 

¶11 The parties do not cite case law setting forth our specific standard 

for reviewing a circuit court’s determination about whether “[a]dvanced planning 

 

4

 Although W.B. frequently refers to both the guardianship and protective placement

orders being rendered unnecessary by advance planning, we note that WIS. STAT. § 54.46(1)(a)2. 

addresses only whether guardianship is rendered unnecessary. Elsewhere in his brief, however, 

W.B. clarifies his position, arguing that, because the guardianship petition should have been 

dismissed, the protective placement petition necessarily should have been dismissed as well. See 

WIS. STAT. § 55.08(1)(b) (requiring a prior determination of incompetency for protective 

placement); WIS. STAT. § 55.075(3) (the petition for guardianship must be heard before the 

individual may be protectively placed); WIS. STAT. § 55.06 (protective placement “may be 

ordered ... only for an individual who is adjudicated incompetent”); WIS. STAT. § 54.01(16) (an 

“‘[i]ndividual found incompetent’ means an individual who has been adjudicated by a court as 

meeting the [guardianship] requirements of [WIS. STAT. §] 54.10(3)”). We acknowledge that 

invalidation of the guardianship order would also invalidate the order for protective placement; 

however, to precisely track the language of § 54.46(1)(a)2., we discuss this issue only in terms of 

whether guardianship was rendered unnecessary by advanced planning.
No. 2021AP322

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by the ward ... renders guardianship unnecessary.” See WIS. STAT.

§ 54.46(1)(a)2. Nor, on our non-exhaustive research, have we located any directly 

pertinent case law. We conclude that, generally speaking, this specific 

determination represents an exercise of discretion, insofar as the court is required 

to consider the advance planning documents in context and dismiss the 

guardianship petition only if it “finds” that advanced planning renders 

guardianship unnecessary. Sec. 54.46(1)(a)2.; cf. E.C. v. Krueger, 

No. 2015AP2196, unpublished slip op. ¶¶14-15 (WI App Dec. 13, 2016) (choice

of guardian and suspension of powers of attorney reviewed for erroneous exercise 

of discretion).5 At the same time, our analysis here hinges on questions of 

statutory and contract interpretation—both questions of law that we decide de 

novo. See Kasten v. Doral Dental USA, LLC, 2007 WI 76, ¶19, 301 Wis. 2d 598, 

733 N.W.2d 300. In addition, applying a de novo standard of review does not 

affect the outcome in this case, and our doing so will be most favorable to W.B., 

the appellant. Accordingly, we consider de novo whether W.B.’s health care 

power of attorney renders guardianship unnecessary.

II. Health Care Power of Attorney Does Not Render Guardianship Unnecessary

¶12 Before addressing the merits of the parties’ arguments, we briefly 

note the following. The parties agree that this case turns on the answer to the 

following question: pursuant to W.B.’s health care power of attorney, can his 

agent require his continued placement in a nursing home over his objection? W.B. 

concedes that if the answer to this question is no, then the guardianship and 

 

5

 Pursuant to WIS. STAT. RULE 809.23(3)(b), authored, unpublished opinions issued after 

July 1, 2009, may be cited for their persuasive value.
No. 2021AP322

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protective placement petitions were properly granted. As previously mentioned, 

however, when the circuit court asked this precise question—whether, in the 

absence of the guardianship and protective placement orders, there was “any legal 

impediment” to W.B.’s leaving the nursing home and “never coming back”—

W.B.’s attorney repeatedly responded that he did not know. He likewise did not 

dispute the County’s representation that a power of attorney instrument does not 

allow an agent to “mandate placement” over the principal’s objection. Thus, we 

are cognizant of the fact that the court did not have before it the specific 

arguments that W.B. now advances on appeal—namely that, consistent with 

various statutory provisions, W.B.’s health care power of attorney grants his agent 

the authority to require W.B.’s continued placement in a nursing home over his

objection. However, because the County does not make a forfeiture argument, we 

do not address whether forfeiture may apply, and we instead proceed to the merits. 

See State v. Tillman, 2005 WI App 71, ¶18, 281 Wis. 2d 157, 696 N.W.2d 574 

(“[T]he court’s role in a conventional appeal is limited to addressing the issues 

briefed by appellate counsel.”); Townsend v. Massey, 2011 WI App 160, ¶23, 338 

Wis. 2d 114, 808 N.W.2d 155 (the forfeiture rule is one of judicial administration, 

which appellate courts may overlook).

¶13 On appeal, W.B. argues that the following language from his health 

care power of attorney grants his agent, J.B., the authority to keep W.B. in a

nursing home over his objection: 

I [W.B.] fully understand, and intend, that this 

designation will permit my designee [J.B.] to make health 

care decisions and to provide, withhold, or withdraw 

consent on my behalf; to apply for public benefits to defray 

the cost of healthcare; to have access to my records 

necessary to make decisions or apply for benefits; and to 
No. 2021AP322

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authorize my admission to or transfer from a health care 

facility.

[6]

 I specifically give my agent the power and 

authority to provide, withdraw, or withhold consent to the 

provision of life-prolonging procedures on my behalf; and

to execute all documents, waivers and releases related to

any of the foregoing and the powers set forth in the 

previous sentence. My agent must act consistently with my 

desires as outlined in my Living Will, if any. 

(Emphasis added.)

¶14 In response, the County argues that W.B.’s health care power of 

attorney is insufficient to require him to remain in a nursing home over his 

objection and that provisions in both the power of attorney and the Wisconsin 

Statutes make this clear.

7 We agree. We first note that, although the power of 

attorney allows J.B. to “authorize [W.B.’s] admission to” a health care facility, it 

does not say that J.B. (much less the nursing home) may keep W.B. there over his 

objection. More significantly, however, other provisions in the power of attorney 

negate W.B.’s interpretation. 

 

6

 “Health care facility” is defined to include a “nursing home” that is “licensed or 

approved by the [D]epartment [of Health Services]” under various statutory provisions. WIS.

STAT. § 155.01(6); see also WIS. STAT. § 50.01(3) (defining “nursing home”). The parties do not 

dispute that W.B.’s nursing home is a “health care facility,” as that phrase is used in his health 

care power of attorney. 

7

 We note that a health care agent may consent to the admission of the principal to longterm nursing or residential care only “if the power of attorney for health care instrument 

specifically so authorizes.” WIS. STAT. § 155.20(2)(c)2.c. WISCONSIN STAT. § 155.30(3) 

provides a health care power of attorney form for Department of Health Services distribution (on 

which a principal may check “yes” or “no” to long-term admission to a nursing home), but W.B. 

did not use this form. Instead, his health care power of attorney permits J.B. to “authorize 

[W.B.’s] admission to or transfer from a health care facility.” Because the County does not 

dispute the point, for purposes of appeal, we will assume without deciding that this language in 

W.B.’s power of attorney is sufficient to “specifically ... authorize[]” J.B. to consent to W.B.’s 

admission to long-term care. See § 155.20(2)(c)2.c. The question in this case, however, is 

whether this authority allows J.B. to require that W.B. be kept in a nursing home over W.B.’s 

objection.
No. 2021AP322

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¶15 As the County notes, W.B.’s health care power of attorney begins 

with the following notice: “You have the right to make decisions about your 

health care. No health care may be given to you over your objection, and 

necessary health care may not be stopped or withheld if you object.”8(Emphasis 

added.) This language mirrors the mandatory notice language of WIS. STAT.

§ 155.30(1) that must be included in health care power of attorney forms made 

available for use by individuals without legal counsel, and that may be included in 

health care power of attorney forms made available for use by individuals with 

legal counsel, see § 155.30(2).

9

 

¶16 Despite this unambiguous language regarding the principal’s rights

to make health care decisions and to not receive care over the principal’s

objection, W.B. argues that these rights apply only to an individual who has not 

been deemed incapacitated. In support of this position, W.B. relies on additional

language contained in both his health care power of attorney and the mandatory 

notice provision of WIS. STAT. § 155.30(1). For example, these sources explain

that in order to avoid the “problem” that may arise when the principal becomes

“physically or mentally unable to make decisions about [his or her] health care,” 

 

8

 This and other notice provisions of the health care power of attorney and the Wisconsin 

Statutes are in all capitalization. For ease of reading, we omit the capitalization.

9

 WISCONSIN STAT. § 155.30(2) provides: 

A power of attorney for health care instrument that is 

other than that specified in sub. (1) or (3) [both of which address 

health care power of attorney forms for public use] shall include 

either the notice specified in sub. (1) or a certificate signed by 

the principal's lawyer stating: “I am a lawyer authorized to 

practice law in Wisconsin. I have advised my client concerning 

his or her rights in connection with this power of attorney for 

health care and the applicable law.” 
No. 2021AP322

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the principal may execute a health care power of attorney to “specify the person 

whom [the principal] want[s] to make health care decisions for [the principal] if 

[the principal is] unable to make those decisions personally.” See id. These 

sources further direct the principal to discuss his or her wishes and beliefs with the 

health care agent and set forth directives in the document. See id. Furthermore, 

these sources state that the power of attorney “is an important legal document”

that gives the agent “broad powers to make health care decisions for” the 

principal. See id. According to W.B., this language “demonstrates” that an agent 

in J.B.’s position is authorized to require that the principal be kept in a nursing 

home over the principal’s objection. 

¶17 We disagree that the above-quoted language upon which W.B. relies 

overcomes the clear and unequivocal language in both WIS. STAT. § 155.30(1) and 

W.B.’s health care power of attorney that expressly informs him of his “right to 

make decisions about [his] health care” and that “no health care may be given to

[him] over [his] objection.” Notably absent from this language about W.B.’s 

rights is any requirement or qualification that W.B. must not have been deemed 

incapacitated in order to avail himself of these rights. “[T]he general rule of 

interpretation is that powers of attorney are to be strictly construed and interpreted 

to grant only those powers that are clearly delineated or specified.” Schmitz v. 

Firstar Bank Milwaukee, 2003 WI 21, ¶28, 260 Wis. 2d 24, 658 N.W.2d 442.

¶18 Moreover, none of the language upon which W.B. relies addresses 

the specific situation here, involving an incapacitated principal who is able to, and 

does, express his wishes and intentions with respect to a specific health care 

option. In addition, W.B.’s position appears to be predicated on at least three 

premises that he fails to support: (1) that an agent’s ability under a health care 

power of attorney to “authorize [the] admission” of an incapacitated principal also 
No. 2021AP322

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includes the power to require the nursing home to keep the principal there against 

his wishes; (2) that incapacity necessarily equates to an inability to “make [any 

health care decisions] personally,” see WIS. STAT. § 155.30(1); and (3) that an 

incapacitated principal gives up all rights to determine his or her health care 

treatment. 

¶19 W.B. not only fails to support these assumptions in any meaningful 

way, but his position also contradicts additional language in his health care power 

of attorney and in WIS. STAT. § 155.30(1) indicating that an agent has a duty to 

ascertain the principal’s wishes, regardless of whether the principal has been 

deemed incapacitated. For example, a provision in both of these sources states, “If 

your health care agent is unaware of your desires with respect to a particular 

health care decision, he or she is required to determine what would be in your best 

interests in making the decision.” See id. (emphasis added). Notably, this 

provision does not state, “If your health care power of attorney instrument does 

not address your desires....” Instead, this provision broadly discusses a situation 

in which the agent is unaware of the principal’s desires—presumably, because 

they were not communicated through the health care power of attorney or verbally

by the principal himself—and the agent must therefore determine the principal’s 

best interests.

¶20 It is also significant that W.B.’s health care power of attorney and 

WIS. STAT. § 155.30(1) expressly give him the right to revoke the power of 

attorney “at any time”:

If you wish to change your power of attorney for health 

care, you may revoke this document at any time by 

destroying it, by directing another person to destroy it in 

your presence, by signing a written and dated statement or 

by stating that it is revoked in the presence of two 

witnesses. 
No. 2021AP322

13

(Emphasis added.) This language is also consistent with WIS. STAT. § 155.40(1), 

which provides that “[a] principal may revoke his or her power of attorney for 

health care and invalidate the power of attorney for health care instrument at any 

time,” and which sets forth various mechanisms for doing so, none of which 

involve any approval or other action on the part of the agent. 

¶21 W.B. does not address the ability to revoke his own health care 

power of attorney, nor do we discern any limitation on W.B.’s ability to so revoke. 

W.B.’s ability to revoke “at any time” undermines his position that guardianship is

rendered unnecessary because the health care power of attorney is sufficient to 

allow his agent (and the nursing home) to keep him in the nursing home against 

his wishes. 

¶22 The above-referenced provisions of WIS. STAT. ch. 155 and W.B.’s 

power of attorney, granting him various retained rights over his health care, are 

consistent with several other statutory provisions as well. Importantly, the County 

directs us to WIS. STAT. § 155.20(5), which provides: 

The health care agent shall act in good faith 

consistently with the desires of the principal as expressed in 

the power of attorney for health care instrument or as 

otherwise specifically directed by the principal to the 

health care agent at any time.... In the absence of a 

specific directive by the principal or if the principal’s 

desires are unknown, the health care agent shall, in good 

faith, act in the best interests of the principal in exercising 

his or her authority.

(Emphasis added.) W.B. asks us to construe the first sentence of this provision to 

mean that “the directions to be followed are those which the principal set forth in 

the power of attorney document or otherwise discussed with the agent prior to 

incapacitation,” but this interpretation is contrary to the statute’s plain meaning. 

See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 
No. 2021AP322

14

Wis. 2d 633, 681 N.W.2d 110 (statutory interpretation begins with the language of 

the statute; if the meaning is plain, our inquiry ordinarily ends). The plain 

meaning of the phrase “at any time” is clearly not “at any time prior to becoming 

incapacitated.” Rather, the plain meaning of “at any time” is “at any time.” If the 

legislature intended this provision to mean what W.B. says it does, the legislature

could have included the limiting language that W.B. advances. See id., ¶44 (“We 

assume that the legislature’s intent is expressed in the statutory language.”). 

Instead, the language of § 155.20(5) is consistent with the mandatory notice 

provisions of WIS. STAT. § 155.30(1)—language which indicates that the 

principal’s expressed wishes must be respected. See Kalal, 271 Wis. 2d 633, ¶46

(we examine the plain meaning of the operative statutory language “in the context 

in which it is used; not in isolation but as part of a whole; in relation to the 

language of surrounding or closely-related statutes”). 

¶23 Other statutory provisions support the County’s interpretation. For 

example, WIS. STAT. § 155.20(1) provides: 

Unless the power of attorney for health care 

instrument otherwise provides and except as specified in 

[inapplicable provisions], the health care agent who is 

known to the health care provider to be available to make 

health care decisions for the principal has priority over any 

individual other than the principal to make these health 

care decisions. 

(Emphasis added.) In addition, WIS. STAT. § 155.30(3) mandates that the 

following language be included in health care power of attorney forms that the 

Department of Health Services distributes to various entities, including hospitals 

and nursing homes:
No. 2021AP322

15

CREATION OF POWER OF ATTORNEY

FOR HEALTH CARE

I,.... (print name, address and date of birth), being 

of sound mind, intend by this document to create a power 

of attorney for health care. My executing this power of 

attorney for health care is voluntary. Despite the creation 

of this power of attorney for health care, I expect to be fully 

informed about and allowed to participate in any health 

care decision for me, to the extent that I am able. For the 

purposes of this document, “health care decision” means an 

informed decision to accept, maintain, discontinue or refuse 

any care, treatment, service or procedure to maintain, 

diagnose or treat my physical or mental condition.

....

GENERAL STATEMENT OF AUTHORITY GRANTED

....

If I am unable, due to my incapacity, to make a 

health care decision, my health care agent is instructed to 

make the health care decision for me, but my health care 

agent should try to discuss with me any specific proposed 

health care if I am able to communicate in any manner, 

including by blinking my eyes. If this communication 

cannot be made, my health care agent shall base his or her 

decision on any health care choices that I have expressed 

prior to the time of the decision. If I have not expressed a 

health care choice about the health care in question and 

communication cannot be made, my health care agent shall 

base his or her health care decision on what he or she 

believes to be in my best interest.

(Emphasis added.) All of the above statutory provisions are consistent with the 

language in W.B.’s health care power of attorney notifying him that he has the 

“right to make decisions about [his] health care” and that “no health care may be 

given to [him] over [his] objection.” See also § 155.30(1).

¶24 W.B. leans heavily on a separate statutory provision, WIS. STAT.

§ 155.05(4), which states, “The desires of a principal who does not have 

incapacity supersede the effect of his or her power of attorney for health care at all 
No. 2021AP322

16

times.” (Emphasis added.) W.B. construes this provision to mean that the desires 

of a principal who has been found incapacitated under § 155.05(2) do not 

supersede the effect of his or her power of attorney. This interpretation is 

unpersuasive, given that: (1) this provision does not in fact specify how the 

desires of an incapacitated principal affect the power of attorney; and (2) the 

statutory provisions set forth above indicate that the principal’s expressed wishes 

are to be considered, if not followed, at all times. 

¶25 Finally, W.B. directs our attention to WIS. STAT. §§ 55.055 and 

50.06, arguing that “[t]he legislature has required immediate action from the 

county in specific situations in which an incapacitated or incompetent individual 

objects to placement in a nursing home or other facility” but that “the situation in 

this case—involving admission by a health care agent—is not among them.” 

W.B. notes that, pursuant to § 55.055(3), when a court-appointed guardian admits

an incompetent individual who is not subject to a protective placement order to a 

nursing home or other facility and that individual “verbally objects to or otherwise 

actively protests the admission,” the county must visit the individual within 

seventy-two hours and, if the objection persists: (1) attempt to have the individual 

released, (2) comply with the procedures for emergency placement under WIS.

STAT. § 55.135, or (3) file a petition for protective placement. Similar procedures 

are provided for under § 50.06(2)(d) for an incapacitated individual objecting to 

admission to a facility by a family member or close friend who is not a guardian or 

health care agent. 

¶26 W.B. argues that “the fact that there is no similar statute requiring 

intervention for an incapacitated individual objecting to admission made by a 

health care agent demonstrates that the agent’s decision trumps that of the 

incapacitated principal.” But W.B.’s interpretation does not follow because—as 
No. 2021AP322

17

discussed above—WIS. STAT. ch. 155 actually provides protections to the principal 

in the scenario present here. Thus, the fact that ch. 155 does not mirror the 

provisions of §§ 55.055(3) and 50.06(2)(d) ultimately does not advance W.B.’s 

position. Moreover, these provisions actually appear to undermine W.B.’s

position, insofar as they suggest that incapacitated or incompetent individuals who 

are not protectively placed retain the right to object to admission to a nursing

home and that their wishes must be taken seriously, despite their incapacity or 

incompetence. 

¶27 As previously noted, W.B. concedes that, if his agent J.B. cannot 

require his continued placement in a nursing home over his objection, then the 

petitions for guardianship and protective placement were properly granted. 

Because we have determined that neither WIS. STAT. ch. 155 nor W.B.’s health 

care power of attorney grants J.B. this power, we conclude that the orders for 

guardianship and protective placement must be affirmed.

CONCLUSION

¶28 For all of the reasons stated above, we affirm the circuit court orders 

for guardianship and protective placement. 

By the Court.—Orders affirmed.

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