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  • December 19, 2022

    Guardianship Respondents Must be Physically Present for Final Hearing

    Wisconsin law requires that a person subject to a petition for guardianship and protective placement be physically present for the final hearing absent a valid waiver, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    Two Men and Two Women, Dressed In Dark Business Suits, Standing Behind A Counsel Table As A Judge Gavels A Proceeding To Order

    Dec. 19, 2022 – Wisconsin law requires that a person subject to a petition for guardianship and protective placement be physically present for the final hearing absent a valid waiver, the Wisconsin Court of Appeals has ruled.

    In Racine County v. P.B., 2022AP765 (Nov. 30, 2022), the Court of Appeals District II held that the law allowing guardianship respondents to object to witnesses who appear via videoconferencing does not allow respondents to appear via videoconferencing without a waiver.

    Final Hearing

    Racine County (County) filed a petition in Racine County Circuit Court for temporary and permanent guardianship over P.B. on May 6, 2021.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    On May 7, the circuit court granted temporary protective placement and appointed P.B.’s daughter as P.B.’s temporary guardian.

    The circuit court set a final hearing date of June 2 and told P.B. that it had appointed a guardian ad litem (GAL) to represent her at the hearing.

    The GAL wrote a report for the final hearing. In the report, the GAL said that, in his opinion, P.B. “can attend the hearing in court.”

    The report contained a box to indicate whether P.B. waived her right to attend the hearing; the GAL did not check the box.

    Attends by Video

    P.B., her lawyer, and several other people attended the June 2 hearing via Zoom.

    P.B. lost her video connection in the middle of the hearing. She continued to participate by audio.

    At the end of the hearing, the circuit court announced that P.B. needed guardianship and protective placement and made orders thereto.

    P.B. filed a post-disposition motion. She asked the circuit court to vacate the orders for guardianship and protective placement on the basis that she wasn’t allowed to attend the final hearing in person and hadn’t consented to appear by video.

    The circuit court denied P.B.’s motion.

    The circuit court ruled that: 1) the guardianship and protective placement statutes did not require that P.B. be physically present; and 2) a statute on videoconference hearings entitled P.B. to by physically present at the hearing but P.B. waived that right by not objecting to appearing by video before the hearing.

    P.B. appealed.

    Meaning of ‘Attends,’ ‘Present’

    Writing for a three-judge panel, Judge Lisa Neubauer pointed out that under Wis. Stat. section 54.44(4)(a), the guardianship statute, when a petitioner proposes that an adult be made a ward, the petitioner “shall ensure that the proposed ward or ward attends the hearing unless the attendance is waived by the guardian ad litem.”

    Under section 55.10(4), the protective placement statute, Neubauer pointed out, a person who is the subject of a petition for protective placement has “the right to be present” at the hearing on the petition.

    And section 55.10(2), Judge Neubauer noted, requires a protective placement petitioner to “ensure … that the individual [subject to the petition] attends the hearing” unless the GAL waives the attendance.

    Neubauer then explained that under Wisconsin Court of Appeals precedent, if a respondent fails to appear at a hearing absent a waiver from the GAL, the circuit court loses competency to proceed on the petition.

    Context Critical for Interpretation

    Judge Neubauer looked to the context of sections 55.44(4)(a) and 55.10(2) and concluded that the term “attends” requires a respondent’s physical presence at a guardianship and protective placement hearing.

    Neubauer pointed out that each section specifies that if a respondent is unable to attend a hearing because of residency in a nursing home or other facility, physical inaccessibility, or lack of transportation​, the circuit court must hold the hearing in a place where the individual can attend.

    “The statutory directive to change the location of the hearing if any of these circumstances exist appears intended to ensure the individual can attend the hearing in person,” Judge Neubauer wrote.

    Third Statute at Issue

    Additionally, Neubauer noted that section 885.60(2)(a), which allows certain criminal and civil proceedings to take place via videoconferencing, specifies that “a respondent in a [protective placement] matter … is entitled to be physically present in the courtroom … at all dispositional hearings.”

    The county argued that unlike section 885.60(2)(a), the guardianship and protective placement statutes did not use the term “physically present.”

    But that argument missed the mark, Judge Neubauer reasoned, because section 885.60 was derived from a Wisconsin Supreme Court rule under section 751.12, and under supreme court precedent, the supreme court may not diminish a respondent’s right to “attend” a final hearing under ch. 55 and 55 when creating a rule under section 751.12.

    Furthermore, Neubauer wrote, proceedings under ch. 54 and 55 entail “significant liberty interests given the potential extent and duration of these restrictions.”

    “Wisconsin Stat. section 55.44(4)(a) and 55.10(2) reflect a similar legislative judgment and protect an individual’s right to be physically present in the room where a final guardianship or protective placement hearing is held,” Judge Neubauer wrote.

    The county also argued that section 885.60(2)(d) authorized it to have P.B. attend the hearing by video unless she objected and asserted her right to be physically present.

    But Judge Neubauer cited a supreme court order to conclude that section 885.60(2)(d) governs the ability of a respondent to object to the testimony of other witnesses who testify via videoconferencing.

    In that order, S. Ct. Order 07-12, the supreme court wrote that section 885.60 “provides the right to prevent the use of videoconferencing technology to present such adverse witnesses, but rather require that such witnesses be physically produced in the courtroom.”

    Because the county failed to ensure P.B.’s physical presence at the final hearing without a valid waiver, Judge Neubauer concluded that the circuit court had lost competency to proceed on the county’s petition.

    The court of appeal vacated the orders and remanded the case to the circuit court.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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