Guardianship of Shaw, Matter of

• Decision Date: 03 January 1979
• Docket Number: No. 77-413,77-413
• Citation: 87 Wis.2d 503,275 N.W.2d 143
• Parties: In the Matter of the GUARDIANSHIP and protective placement OF James R. SHAW, Incompetent. Thomas K. ZANDER, guardian ad litem, Appellant, v. COUNTY OF EAU CLAIRE, Respondent.
• Court: Wisconsin Court of Appeals

Page 143

275 N.W.2d 143

87 Wis.2d 503

In the Matter of the GUARDIANSHIP and protective placement OF James R. SHAW, Incompetent Thomas K. ZANDER, guardian ad litem, Appellant, v. COUNTY OF EAU CLAIRE, Respondent.

No. 77-413.

Court of Appeals of Wisconsin.

Argued Sept. 21, 1978.

Opinion Released Jan. 3, 1979.

Opinion Filed Jan. 3, 1979.

Thomas K. Zander, Asst. State Public Defender (argued), for appellant; Howard B. Eisenberg, State Public Defender, on brief.

William G. Thiel, Corp. Counsel for Eau Claire County, Eau Claire, for respondent.

Before DEAN, P. J., and DONLIN and FOLEY, JJ.

DEAN, Presiding Judge.

The order appealed from directed the appointment of a guardian for the person and property of James R. Shaw, ordered that he be protectively placed in the Eau Claire Area Health Care Center, and directed that he be placed in a locked ward. This action was commenced with the filing of a petition for guardianship and protective placement by Gary Joslin, a social worker with the Eau Claire Area Health Care Center.

At the final hearing on this petition, Joslin testified that Shaw was a 69-year-old alcoholic who had been admitted to the Health Care Center thirty-five times over the preceding two years for detoxification. Joslin testified that Shaw was belligerent and hostile when he was drunk and that, on one occasion, he set fire to a pillow while in four-point restraints. Shaw was twice convicted of disorderly conduct during this period. When sober, Shaw was bright, alert, and pleasant, and indicated that he wished to quit drinking.

Shaw received a monthly veteran's check from which he paid $150 to the Health Care Center while he was a resident in their nursing home, leaving him $35 for personal use. On one occasion, when he was not a resident there, Shaw lost or spent $138 of the $185 he received the day before. He could not account for the missing money except that he paid some of it for bail and some for drinking. Shaw has no dependents.

Joslin testified that Shaw had a "primary need for residential care and custody" based primarily on the number of admissions to the Health Care Center, and his observation that when Shaw was released without supervision, he "lost or has not had control regarding making decisions about drinking." Joslin did not explain how he acquired the information that Shaw lost control over his decision-making process rather than that he simply decided to resume and continue drinking. He further testified that without residential care and custody Shaw "would be totally incapable of providing for his own care and custody" based upon his alleged inability to provide for himself over the previous two years. Joslin testified that Shaw posed a substantial risk of harm to himself or to others because his belligerent attitude could lead to bar fights in which someone could get injured. Joslin proposed a continuation of treatment in a locked nursing home with gradually increased liberties.

Shaw's probation officer testified that Shaw had been beaten up on two occasions. He also testified that deprivation of funds was not sufficient to prevent Shaw from drinking because "if there is a will, there is a way."

The associate director for alcohol and drug abuse of Eau Claire County Unified Services Board testified that Shaw had unsuccessfully participated in unspecified, short-term, active treatment programs, apparently for never longer than thirty days. He testified that he believed no "unrestricted community resource alternative" would suffice because it "appeared (that Shaw was) unable to control his drinking . . . , and that he has not responded to those (programs) that he has participated in." Shaw failed to keep appointments for outpatient treatment and did not attend Alcoholics Anonymous meetings. No halfway house would accept Shaw "because of his drinking patterns and his insincerity about discontinuing his drinking."

Medical evidence was presented by two doctors. Dr. Jack Edson, a court-appointed psychiatrist, performed an independent evaluation of Shaw, pursuant to sec. 55.06(8), Stats. In his report he stated:

On the basis of this examination, I would have to conclude that Mr. Shaw is in no way incompetent from the general psychological standpoint. Although there is apparently some early deterioration of thought processes, this has not expanded to the point that it would interfere with his day to day mental functioning. Historically, of course, he apparently has a pronounced problem with alcohol which would indicate more deeply underlying problem dynamics not immediately evidenced in such a session as this. Thus, he may well be in need of guardianship and protection because of his pronounced tendency towards alcoholism and the resulting effects that this has wrought. I can only at this time evaluate him in a period of sobriety and this does find him to be a fairly capable, intelligent, and basically competent individual. Any finding of incompetency will have to be in terms of his drinking history and the direct manifest effects of this.

Dr. Phillip Schleifer, the medical director for the Health Care Center who had no psychiatric training, agreed that Shaw was competent when sober, but testified that Shaw lacked control over his drinking, and that his drinking led to "completely irrational behavior." "He has no sense of well-being for himself or for people around him." When asked whether the number of Shaw's admissions to the Health Care Center indicated that his alcoholic condition rendered him incompetent, Dr. Schleifer answered that there was a correlation between number of admissions and lack of control over drinking. When asked whether, absent controls, Shaw was totally incapable of providing for his own care and custody in the community, Dr. Schleifer responded, "Based on (Shaw's) behavior in the past year, I would say he would have no control." When asked whether, absent controls, Shaw's intoxication or incapacitation would constitute a substantial risk of serious harm to himself or others, Dr. Schleifer answered, "Yes. It's a potential problem."

Finally, Dr. Schleifer testified that he was optimistic that Shaw "will eventually be able to corner his problem with alcohol," unless he is permitted to continue to live as he had for the previous two years. He declined to describe Shaw's condition as permanent, but stated that it "could be" permanent, and that his prognosis was poor absent supervision. He suggested a "fairly structured, long-term treatment." Further facts will be stated as needed in the opinion. Six issues are raised in this appeal:

(1) Was sufficient evidence presented to justify the protective placement of Shaw.

(2) Are the criteria for guardianship and protective placement excessively vague and overbroad.

(3) Does application of the clear-and-convincing-evidence test violate due process or equal protection of law.

(4) Does the failure of the statute to require periodic, automatic court reexaminations violate due process or equal protection of law.

(5) Is the guardianship statute unconstitutional in that it allows a general finding of incompetency rather than limited incompetency to perform specific acts.

(6) Does the constitutional right to privacy protect an individual from state interference with his chosen life style where that life style includes habits which are detrimental to his health.

SUFFICIENCY OF EVIDENCE

Section 55.06, Stats., provides for the protective placement of a ward for the primary purpose of providing care and custody, following a determination of incompetency in accordance with ch. 880, Stats. The interpretation of the protective placement statutes is a matter of first impression. These statutes require that before a person may be protectively placed because of alcoholism, the following findings must be made:

(1) That the individual to be placed is incompetent;

(2) That he has a primary need for residential care and custody;

(3) That, as a result of brain damage or continued consumption of alcohol, he is so totally incapable of providing for his own care or custody that his condition creates a substantial risk of serious harm to himself or others;

(4) That his disability is permanent or likely to be permanent.

The principle source for construction of these requirements is the language of the statutes themselves. E. g. Wisconsin Environment Decade, Inc. v. Public Service Commission, 81 Wis.2d 344, 260 N.W.2d 712 (1978). We must also consider the total legislative scheme relating to alcoholics, and harmonize sec. 55.06, Stats., with other statutes dealing with alcoholics. ¹ E. g. McGraw- Edison Co. v. Department of Industry Labor and Human Relations, 72 Wis.2d 99, 240 N.W.2d 148 (1976).

Based upon these principles, we construe the protective placement statutes as follows: The requirement of secs. 55.06(1) and (2)(b), Stats., that the individual to be placed must first be found incompetent under ch. 880 necessitates a finding that he is incapable of managing his property or caring for himself. More than a finding that the individual is a drinking alcoholic is required before a person may be found incompetent for the purposes of sec. 55.06, Stats. The court must find that he is not capable of making a knowing and voluntary choice about his drinking. An alcoholic who continues to drink because he prefers an alcoholic life-style is not necessarily incompetent. Incompetency addresses the ability of the individual to make decisions for himself. The decision which he knowingly and voluntarily makes is not at issue so long as he possesses the evaluative capacity to choose between continued drinking and the various treatment and placement alternatives. The incompetency statutes do not allow the court to substitute its judgment for that of the alleged incompetent merely because the court believes he has made the wrong decision. The question of his competency to make decisions relating to continuation of his alcoholic...