Guardianship: When “Protection” Becomes Profoundly Invasive: Lessons from Wisconsin’s Divided Supreme Court

Protective placement and guardianship are among the most powerful tools the state can use against an adult. They can strip a person of the right to decide where to live, how to spend money, what medical care to accept, and even with whom to associate. When used appropriately, they protect people who truly cannot protect themselves. When used too broadly or with insufficient evidence, they can become a legal cage. A recent Wisconsin Supreme Court decision, Racine County v. R.P.L., illustrates just how complex and contested these cases remain, even at the highest court level.

The Case in Brief

Robert, 65, suffered from the effects of stroke, aphasia, and cognitive impairment. After being found on the floor of his home, the county sought (and obtained) guardianship and protective placement. At the required annual review, the circuit court continued both orders. Robert appealed.  

By the time the case reached the Wisconsin Supreme Court, a new continuation order had already been entered for 2025. Normally, once a new order replaces an old one, the appeal of the earlier order becomes moot (legally irrelevant).  The Court, however, disagreed in this case. It held that the appeal was not moot because Robert remained financially liable for the cost of his care under Wisconsin law. That ongoing financial responsibility was a “collateral consequence” of the 2024 order, something that continued to affect him even after the newer order was entered. This is an important acknowledgment by the court: a person under protective placement may still have a live legal interest in challenging an earlier order when money is at stake.  

On the merits, a majority found clear and convincing evidence supported continued protective placement.   The court-appointed psychologist testified that Robert had a neurocognitive disorder resulting from his stroke, significant communication problems, memory and executive-function deficits, and physical limitations. He needed 24-hour supervision for medication, bathing, nutrition, and safety. The circuit court concluded these impairments were permanent or likely permanent and that Robert could not safely live independently.

Two justices dissented on the key issue of permanency. They argued that the County’s expert could not reliably establish that Robert’s impairments were permanent. The psychologist acknowledged gaps in the evaluation, the possibility that speech therapy or other interventions might improve some abilities, and that Robert had previously recovered a degree of independence after earlier strokes. In the dissent’s view, the evidence fell short of the clear-and-convincing standard required before the state can continue restricting a person’s liberty.

Even the state’s highest court could not agree on whether the evidence met the high legal standard. That disagreement itself is the story.

The Real Risks of These Remedies

Even when the statutory criteria are met, the consequences are profound. A person under full guardianship or protective placement can lose the right to:

• Live in their own home
• Manage their own money
• Choose their doctors or refuse treatment
• Decide who may visit
• Marry, vote, or drive
• Challenge the very system that controls them

Organizations such as the National Association to Stop Guardianship Abuse (NASGA) have long documented how these proceedings, intended as shields, can become instruments of isolation, financial exploitation, and loss of dignity. NASGA’s mission is to protect the civil rights of adults subjected to unlawful or abusive guardianships, to support families navigating the system, and to push for systemic reform (including adoption of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act). They do not provide legal representation, but they offer education, public awareness, and a platform for those who believe the system has overreached. More information is available at stopguardianabuse.org.

The R.P.L. case is a sober reminder: reasonable judges can examine the same record and reach opposite conclusions about whether the state’s heavy hand is justified. That uncertainty is precisely why these remedies should remain a last resort.

How Wisconsin, Ohio, and Missouri Differ

Wisconsin has a distinct “protective placement” statute (Chapter 55) that sits alongside guardianship. To order or continue protective placement, the county must prove by clear and convincing evidence that the person:

• Has a primary need for residential care and custody;
• Is incompetent;
• Is so totally incapable of providing for their own care or custody that a substantial risk of serious harm exists; and
• Has a disability that is permanent or likely to be permanent.

The permanency requirement, together with the burden of proof, is a significant safeguard, and the point of the disagreement in R.P.L.  Neither Ohio nor Missouri have this sharp safeguard. 

Ohio uses guardianship of the person primarily focusing on whether the individual is “incompetent” and whether appointment is in their best interest. Ohio courts emphasize the least restrictive alternative, but the statutory framework does not contain Wisconsin’s explicit, free-standing “protective placement” category or the same formal permanency requirement for residential placement by clear and convincing evidence.

Missouri similarly orients guardianship around incompetency.  The law contains a strong statutory preference for limited guardianship and the least restrictive alternative. Recent reforms have given greater recognition to supported decision-making concepts. But, like Ohio, Missouri does not have a separate protective-placement statute with Wisconsin’s specific permanency threshold.  Courts are directed to tailor orders narrowly, but are generally trusted to make decisions when guardianship is necessary.

Both Ohio and Missouri defer to probate court judges and magistrates to apply the standard appropriately, generally only stepping in when there has been an abuse of discretion by the court. That means appeals are difficult. 

In short: Wisconsin’s statute imposes one of the more explicit and demanding multi-factor tests, particularly the permanency element. Ohio and Missouri rely more heavily on general incompetence and a least-restrictive/best-interest analysis, with Missouri placing relatively stronger formal emphasis on limited orders and alternatives.

Regardless, Robert remains institutionalized, ostensibly against his will, and has no recourse other than recovering.  

The Better Path: Proactive Planning

The most effective way to reduce the risk of unwanted guardianship or protective placement is to plan before a crisis. 

Consider these tools:

• Supported Decision-Making (SDM) Agreements: Formal arrangements in which a person designates trusted supporters to help with decisions while retaining final authority. Many states now recognize SDM as a less restrictive alternative that courts should consider before imposing guardianship.
• Robust Advance Directives and Powers of Attorney: A well-drafted durable power of attorney for finances and a healthcare power of attorney/advance directive, executed while the person has capacity, can often prevent the need for court intervention.
• Protective Trusts: Revocable living trusts or carefully designed irrevocable trusts (including, where appropriate, Medicaid Asset Protection Trusts) can provide management of assets without court-appointed conservatorship.  In both Missouri and Ohio, a carefully crafted Revocable Living Trust can help protect trust assets from third-party control. 
• Limited or Tailored Guardianships: When some court involvement becomes unavoidable, insist on the narrowest possible order limited to specific areas of need.  Include these wishes in advanced directives.
• Clear Evidence of Preferences: Written statements of wishes, person-centered care plans, and documentation of successful community supports strengthen arguments against full protective placement.

Guardianship and protective placement exist for genuine need. But as Racine County v. R.P.L. demonstrates, the line between necessary protection and excessive control is not always clear: even to a state supreme court. Families who want to preserve autonomy and avoid the most invasive remedies must act early, deliberately, and with professional guidance.

If you are concerned about a loved one’s capacity or are facing a guardianship proceeding, consult experienced elder law counsel promptly. The quality of planning done in advance often determines whether the outcome is supportive or devastating.

Case: Racine County v. R.P.L., 2026 WI 26 (July 7, 2026)