Chippewa County v. N. M. E.

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COURT OF APPEALS DECISION DATED AND FILED
October 13, 2026 Samuel A. Christensen 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. 2026AP545 STATE OF WISCONSIN
Cir. Ct. No. 2025GN31
IN COURT OF APPEALS DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP OF N. M. E .:
CHIPPEWA COUNTY,
PETITIONER-RESPONDENT,
V.
N. M. E.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Chippewa County: STEVEN H. GIBBS, Judge. Reversed.
T1 GILL, J.1 Nora2 appeals an order for her protective placement under WIS. STAT. ch. 55, contending that she does not require protective
1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24). All references to the Wisconsin Statutes are to the 2023-24 version.

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placement. Nora argues that Chippewa County failed to present sufficient
evidence both that she is so totally incapable of providing for her own care or
custody as to create a substantial risk of serious harm to herself or others, as
required by WIS. STAT. § 55.08(1)(c), and that her protective placement is in the
least restrictive environment consistent with her needs and with the resources of
the County, as required by WIS. STAT. § 55.12(3), because she only needs
protective services. We agree with Nora in both regards. Accordingly, we reverse
the protective placement order.
BACKGROUND
¶2 In May 2025, the County filed a petition for temporary and
permanent guardianship of Nora’s person and estate due to incompetency after
Nora’s then-current power of attorney for healthcare, her daughter, resigned and
the County was unable to locate the second listed agent.3 After a hearing, a court
commissioner ordered Nora’s temporary guardianship. The circuit court later
ordered that Nora be evaluated by physician Michael Lace.
¶3 Shortly after Dr. Lace filed his examination report, the County filed
a petition for Nora’s protective placement, alleging that Nora’s degenerative brain
2 For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
3 The petition for temporary and permanent guardianship states that the “current guardian
has provided a resignation and the standby guardian is unable to be located.” However, the
petition earlier states that Nora’s “activated power of attorney for healthcare” submitted a
resignation and that the “second listed agent” was unable to be located. Had Nora previously
been under a guardianship and her guardian resigned, the circuit court would have sought to
appoint a successor guardian, rather than a new petition for temporary and permanent
guardianship being filed. See WIS. STAT. § 54.54(1). Thus, it appears that the reference to a
“current guardian” and “standby guardian” in the petition was in error.

No. 2026AP545
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disorder rendered her “totally incapable of caring for herself in any manner” and
that she “require[d] assistance with the majority of her activities of daily living.”
The petition noted that Nora was originally placed at Meadowbrook, a facility, for
short-term rehabilitation and that, after her rehabilitation period, Nora’s temporary
guardian told her that she would be moving to Dove-Rutledge, a community based
residential facility. Nora reluctantly agreed to go to Dove-Rutledge, but she
maintained that she wanted to return home, which the petition stated was “not an
option.”
¶4 A final hearing on the County’s guardianship and protective
placement petitions was held in July 2025.4 Doctor Lace testified that Nora
suffered from age-related cognitive decline, which caused her to have “significant
attentional issues,” as demonstrated by difficulties remaining focused and her
tending to “give up on difficult tasks”; “some sensory and motor functioning
impairments” based upon her need for a wheelchair or cane and hearing
difficulties; “significant” memory concerns, as shown by her inability to recall
items after a short period of time and difficulty recalling details of important life
events; “limited” “general fundamental knowledge,” such as the inability to
complete simple math problems; and severe impairments in executive functioning,
as evidenced by her lack of insight into her condition and her current level of care.
¶5 Doctor Lace stated that, as a result of her impairments, Nora suffers
from an incapacity that is likely to be permanent and renders her incapable of
providing for her own care. Lace opined that Nora is a proper subject for
4 Nora did not contest her need for a guardianship at the hearing, nor does she contest the
guardianship on appeal.

No. 2026AP545
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protective placement due to the difficulties she would have “surviving safely in a
home setting or living on her own,” remembering to take her medications and
attend her appointments, and in making financial decisions. Regarding whether
Nora would be a danger to herself, Lace opined that “she’s not suicidal. She does
have a history of some mental health issues, but that’d be more indirect by neglect
and not going to appointments or forgetting important things.”
¶6 Doctor Lace opined that Nora’s current placement at Dove-Rutledge
was appropriate. When asked why protective placement was more appropriate for
Nora than protective services, Lace explained that it was due to “her need for
constant medication management, that may be difficult to do depending on the
medication schedule. And then also just having assistance if she needed that, to
prevent falls, that there would be somebody immediately available, at least the
vast majority of the time.”
¶7 Doctor Lace’s report was received into evidence without objection.
In his report, Lace noted that Nora’s medical conditions include “metabolic
encephalopathy, oral dysphagia, generalized muscle weakness, fibromyalgia,
chronic kidney disease with heart failure, type–2 diabetes mellitus, obstructive
sleep apnea, hypersomnia, moderate persistent asthma, cardiomyopathy, and
gastroesophageal reflux disease, among other conditions.” Lace opined in his
report that he would not recommend protective services in lieu of protective
placement, though the report did not explain why.
¶8 The circuit court found that Nora was in need of protective
placement “to make sure that she is healthy and taking her medications.” The
court further explained that it “believe[d] that the ward does need protective

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placement because of her degenerative disorder that is coming along.” Nora now
appeals.
DISCUSSION
¶9 Nora argues that the County failed to present sufficient evidence that
she is so totally incapable of providing for her own care or custody as to create a
substantial risk of serious harm to herself or others, as required by WIS. STAT.
§ 55.08(1)(c), and that her protective placement is in the least restrictive
environment consistent with her needs, as required by WIS. STAT. § 55.12(3).
¶10 A challenge to the sufficiency of the evidence to support a protective
placement presents a mixed question of law and fact. Walworth County v.
Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. “The
circuit court’s factual findings will not be overturned unless clearly erroneous.”
Id. (citation omitted). Whether the evidence supports protective placement is a
question of law that we review de novo. Id.
¶11 To order the protective placement of an individual, a circuit court or
jury must find, by clear and convincing evidence that the individual meets all of
the standards under WIS. STAT. § 55.08(1). WIS. STAT. § 55.10(4)(d). Those
standards are as follows:
(a) The individual has a primary need for residential care
and custody.
(b) The individual … is an adult who has been determined
to be incompetent by a circuit court.
(c) As a result of developmental disability, degenerative
brain disorder, serious and persistent mental illness, or
other like incapacities, 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

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others. Serious harm may be evidenced by overt acts or
acts of omission.
(d) The individual has a disability that is permanent or
likely to be permanent.
Sec. 55.08(1). “The risk of harm [under § 55.08(1)(c)] must be substantial. Mere
speculation as to difficulties [a ward] may encounter is not sufficient. Specific
harm must be foreseeable to fulfill this requirement. Furthermore, the foreseeable
harm must be serious.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 514-15,
275 N.W.2d 143 (Ct. App. 1979).
¶12 In addition to the standards in WIS. STAT. § 55.08(1), “[p]rotective
placement … provided by a county department … 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.” WIS. STAT. § 55.12(3). It is the petitioner’s burden to prove that
protective placement is in the least restrictive environment consistent with a
ward’s needs. See Clark Cnty. Cmty. Servs. v. R.F., No. 2022AP481, unpublished
slip op., ¶¶17-18 (WI App Sep. 1, 2022).5
¶13 Nora argues that the County failed to prove that she is so totally
incapable of providing for her own care as to create a substantial risk of serious
harm to herself. Specifically, Nora contends that Dr. Lace was chiefly concerned
with others taking advantage of her financially and with requiring assistance, if
needed, to prevent falls. Nora asserts that these concerns do not constitute serious
5 Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

No. 2026AP545
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harm and that they relate more to Nora’s guardianship than to her need for
protective placement.
¶14 In support of this argument, Nora cites Outagamie County DHHS v.
L.C.E., No. 2023AP929, unpublished slip op., ¶¶15-20 (WI App June 4, 2024), in
which this court concluded that evidence that the ward “would be ‘vulnerable to
the abuse of other people,’ might stop taking her medication, and might not be
able to perform all the activities of daily living” was “speculative and vague” and
did not satisfy the requirement of serious harm.
¶15 The County attempts to distinguish L.C.E. by noting that L.C.E.
“revolved around testimony that the [ward] ‘might stop taking her medication, and
might not be able to perform all the activities of daily living,’” id., ¶15, whereas
Dr. Lace testified that Nora does not understand which medical conditions she has
or what medications she takes for them. Thus, the County contends that “[t]he
medication issue and medical condition issue in this case is not vague.”
¶16 In reply, Nora notes that Dr. Lace testified that he did not go through
Nora’s medication list with her and, further, that Nora was aware she was taking
medications and that those medications are required. Thus, Nora asserts that the
County presented “no indication” of what specific and substantial risk of serious
harm she would suffer if she were not protectively placed.
¶17 We agree with Nora that the County presented insufficient evidence
to conclude that she is so totally incapable of providing for her own care or
custody as to create a substantial risk of serious harm to herself. Doctor Lace’s
primary concerns for Nora were her failing to remember to take her medications,

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remember to go to appointments, and ambulating safely.6 However, like the
“speculative and vague” testimony in L.C.E., there was no evidence as to what
symptoms would appear if Nora did not take her medications, what activities of
daily living Nora might not be able to perform on her own due to her ambulatory
limitations, or how these factors would affect Nora’s ability to care for herself.
See id. Further, Lace stated that Nora suggested she would take her medications
on her own and that there were services that could assist Nora with getting her
medications sorted for the week. Lace also testified that he did not discuss with
Nora possible assistive devices that could help her with ambulating at home.
Thus, Lace’s vague and speculative concerns, alone, do not amount to a
substantial risk of serious and foreseeable harm to Nora.
¶18 We also agree with Nora that the County failed to sufficiently prove
that her current protective placement is appropriate, as it is not the least restrictive
environment and in the least restrictive manner consistent with her needs and the
County’s resources. Doctor Lace testified that services exist to help Nora with
medication management and that assistive devices are available to help Nora with
ambulating at home. The only evidence indicating that protective services may
not be consistent with Nora’s needs is Lace’s testimony that medication
management “may be difficult to do depending on the medication schedule” and
that Nora would benefit from having someone available in case she falls. This
testimony fails to meet the standard of clear and convincing evidence that Nora’s
6 Doctor Lace was also concerned about Nora’s ability to make major financial
decisions. We note, however, that regardless of her protective placement, Nora will be subject to
a guardianship of her person and a guardianship of her estate. See Outagamie Cnty. DHHS v.
L.C.E., No. 2023AP929, unpublished slip op., ¶16 (WI App June 4, 2024) (concluding that, due
to the subject individual’s guardianships, the record did not support finding that the individual’s
inability to manage her financial affairs provided a basis for her protective placement).

No. 2026AP545
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current protective placement is in the least restrictive environment and in the least
restrictive manner consistent with her needs and the County’s resources. This is
especially so given Nora’s lack of a history of falling or failing to take her
medication and the absence of any evidence that Nora’s medication schedule
would be difficult for the County to manage through services.
By the Court.—Order reversed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.