00-0929 In the Matter of the Guardianship and Protective Placement of Muriel K., alleged incompetent et al. v. Milwaukee Cty. and Muriel K.

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“Although the health care power of attorney and the durable power of attorney pertain to different decision-making powers, they are both intended to ensure that the wishes of a principal made while competent are effectuated in the event of the individual’s incapacity. Thus, for purposes of the question before us, both types of powers serve the same function. Indeed, it is the type of decision-making powers granted under a power of attorney for health care that most highlight the gravity of what is ultimately at stake for Muriel K. in this litigation. In addition, both are based upon the same fundamental principles of agency. For all of these reasons, we view the two powers as resting on equal footing for the purposes of our standing analysis.

“In short, § 879.27(1) empowers the Knights to appeal because of the purpose of both powers and the basic agency principles from which they are derived. Just as the court of appeals’ construction of § 879.27(1) cannot account for the role of adversary counsel, it also fails to account adequately for the existence and nature of powers of attorney. The Knights have standing not because they may appeal on behalf of Muriel K. under § 879.27(4), but because for purposes of § 879.27(1), the Knights, in effect, are Muriel K.”

Reversed and remanded.

DISSENTING OPINION: Sykes, J., with whom Wilcox and Crooks, JJ., join. “As it stands, the Knights are former health care and durable power of attorney agents. Muriel K. now has court-appointed guardians of her estate and person, as well as adversary counsel and a guardian ad litem.

“The law, therefore, no longer recognizes the Knights as agents for Muriel K., and they have no power or standing to speak or act for her in a representational capacity at all. They could not, under these circumstances, purport to make financial or medical decisions for her under either the health care or durable power of attorney documents, because those documents have been revoked. How is it that they retain the authority to make legal decisions for her, such as whether to appeal? They do not have that authority, only the court- appointed guardians do, and the majority’s conclusion to the contrary is simply wrong.

For these reasons, I respectfully dissent.”

Court of Appeals; Bradley, J.

Attorneys:

For Appellant: Patricia M. Cavey, Milwaukee

For Respondent: Mary Ellen Poulos, Madison; Robert B. Peregrine, Milwaukee; Pamela D. Crawford, Frankin, Milwaukee