Guardianship of Colliton, In re

• Citation: 164 N.W.2d 480,41 Wis.2d 487
• Decision Date: 07 February 1969
• Docket Number: No. 80,80
• Parties: In re GUARDIANSHIP OF Edward J. COLLITON: Edward J. COLLITON, by Burr Tarrant, his gdn. ad litem, Appellant, v. Harriet COLLITON, Respondent.
• Court: Wisconsin Supreme Court

Page 480

164 N.W.2d 480

41 Wis.2d 487

In re GUARDIANSHIP OF Edward J. COLLITON:

Edward J. COLLITON, by Burr Tarrant, his gdn. ad litem, Appellant, v. Harriet COLLITON, Respondent.

No. 80.

Supreme Court of Wisconsin.

Feb. 7, 1969.

Tarrant, Lund & Sherman, Whitehall, for appellant.

Fugina, Kostner, Ward, Kostner & Galstad, Arcadia, for respondent.

WILKIE, Justice.

The first issue presented on this appeal is whether in a proceeding to terminate his guardianship as an adjudged incompetent, the person asserting competence has the burden to prove that his condition has changed and that he has returned to a state of mental competence.

Sec. 319.03 of the Wisconsin statutes provides for guardianships of incompetents. Thus it provides:

'All minors, incompetents and spendthrifts are subject to guardianship. The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the county, under extraordinary circumstances requiring medical aid or the prevention of harm to his person or property found in the county. The court may appoint a guardian of the estate of anyone subject to guardianship, whether a resident of the state or not, if any of the estate is located within the county. Separate guardians of the person and of the estate of a ward may be appointed.'

Sec. 319.01, Stats., defines incompetency as follows:

'(3) 'Incompetent' means a person incapable of managing his property or caring for himself by reason of mental illness, deficiency or infirmity, chronic inebriety, drug addiction or other like incapacity.'

Sec. 319.26, Stats., provides for termination of guardianship:

'(1) Guardianship of the Person. A guardianship of the person shall terminate:

'(a) When a minor ward attains his majority.

'(b) When a minor ward lawfully marries.

'(c) When the court adjudicates a former incompetent to be competent.

'(2) Guardianship of the Estate. A guardianship of the estate shall terminate:

'(c) When the court adjudicates a former incompetent or a spendthrift to be capable of handling his property.

In the proceedings for the appointment of guardian, it is clear that the burden of proof rests on the party asserting mental incompetency. In Guardianship of Olson ¹ this court stated:

'The proof must show that the alleged incompetent is incapable of taking care of himself and managing his property. The mental incompetency must exist at the time of the hearing or else the petition should be denied. To establish mental incompetency in will cases, the proof must be clear, convincing, and satisfactory. Will of Grosse, 208 Wis. 473, 476, 243 N.W. 465. The degree of proof should be no less, to warrant the appointment of a guardian of the person and estate of an alleged incompetent.' ²

The original proceedings for the appointment of a guardian were held with the alleged incompetent represented by the same attorney as the one who represented him in connection with the termination proceedings. No appeal was taken from the court's judgment of incompetency. The time for appeal passed and the instant termination proceedings were commenced. These are separate and new proceedings in which the previously adjudged incompetent has alleged that he is now competent. Therefore, as the trial court correctly determined, the burden of proof falls upon the ward to establish his return to a state of mental competence by the requisite quantum of proof. The trial court stated:

'* * * The Court is satisfied that at this time the burden of proof does lie upon the Ward to show proof of competency and this situation, of course, is the reverse at the time of the initial hearing. I am always slow to force a guardianship upon any person and once imposed I feel that the Court should also be equally conservative insofar as the removal of the guardianship is concerned and require that the basic burden of proof be at least met.'

Thus the trial court correctly described the essential nature of the termination proceedings and correctly placed the burden of proof with the petitioner who alleged he had returned to competency.

There appears to be some authority for the proposition that the adjudication of incompetency at the guardianship proceeding raises a rebuttable presumption of continued incompetence. In Roether v. Roether, ³ wherein this court was concerned with the validity of a marriage contract entered into by the defendant who had been previously adjudged mentally incompetent and placed under guardianship, it was stated that:

'* * * The trial judge also stressed the fact that in the guardianship proceedings in 1916 the defendant was found mentally incompetent to manage his estate, and that such a condition having once been shown it was presumed to continue to exist. It is true that a condition once shown to have existed is prima facie presumed to exist, but slight proof to the contrary will rebut the presumption.' ⁴

(Emphasis added.)

In that a rebuttable presumption is for the benefit of the party carrying the burden of proof, a presumption of continued incompetence could have application only if the burden of proof rested upon the party relying upon continued incompetence. In holding that the burden of proof in termination proceedings is upon the ward, we must therefore reject the above quoted language from the Roether Case. ⁵ We note that that language was mere dicta because the matter of incompetency for guardianship purposes is entirely apart from competency to marry. There is no presumption of incompetency here. We simply have a new proceeding with the burden of proof upon the party alleging mental competency. We add, however, that the burden upon the ward at the termination proceedings is to establish his competence by the preponderance of the evidence as distinguished from the higher burden at the initial guardianship proceedings requiring proof of mental incompetence by clear and convincing evidence. This court has consistently held to the view that the 'liberty of the person and the right to the control of one's own property are very sacred rights which should not be taken away or withheld except for very urgent reasons.' ⁶

Thus, we reach the second issue on this appeal--whether the trial court's determination of continued incompetency requiring continuation of the guardianship of both the person and estate is against the great weight and clear preponderance of the evidence.

Although the trial court made no specific finding that the incompetence of Mr. Colliton continued and that there was, therefore, need for continuing the guardianship of both his person and the estate, the trial court's order is to that effect and the thrust of his...