COA holds that need for protection from one of the specified harms — abuse, financial exploitation, neglect, or self-neglect — is sufficient to continue protective placement.
Dane County v. L.A.E., 2026AP906, 9/17/26, District IV (ineligible for publication); case activity
The COA affirmed continuing L.A.E.’s protective placement over his objections that the County did not prove he had a primary need for residential care and custody and that his debilities created a substantial risk of serious harm to himself or others.
L.A.E. was protectively placed two years ago due to a brain injury after he had surgery that removed a growth from his skull. L.A.E., who was 82 years old at the time of the hearing to continue protective placement, was living at a community-based residential facility, which provides 24-hour care and is not locked, but egress is monitored. (¶¶ 2-3).
A psychologist testified at the hearing that removing the growth from L.A.E.’s brain caused him to suffer a major neurocognitive disorder, which was permanent and had not changed since his surgery. (¶ 4). The psychologist said L.A.E.’s executive functioning was impaired as demonstrated by his lack of inhibition and speaking at length about matters not related to the subject of her interview with him. (¶ 5). For example, L.A.E. sometimes appeared in common areas of the shared residence in his underwear and, during her interview with him, lowered his shorts to put a salve on his hip and showed her a birth mark on his inner thigh. (¶ 5). The psychologist testified that, if L.A.E. was not protectively placed and he behaved inappropriately, he could put himself at risk if someone became physically violent toward him after a “sexually inappropriate overture.” (¶ 7). The psychologist said L.A.E.’s memory was moderately impaired, but there were no incidents where his behavior raised safety concerns related to memory. (¶ 8). However, L.A.E. had left the facility where he lived and “roamed Madison with no money, no food or water, and no place to stay until he was found by the police wandering at a mall.” (¶ 7).
A social worker testified that L.A.E. was physically fit and did not need assistance to complete routine daily activities. Rather, his primary need for residential care resulted from “deficits relating to his brain injury ‘around interacting with other people.’” (¶ 10). Specifically, the social worker testified, L.A.E. has challenges with perceiving “what is appropriate behavior, appropriate physical contact boundaries, appropriate things to say to people, just essentially difficulty with impulse control and inhibition.” (¶ 10). The social worker said if L.A.E. lived independently, “there’s really no way to schedule for when a problem may occur and ensure that staff is there when that person needs them and is not there when they don’t.” (¶ 12).
L.A.E. argued that the circuit court’s order continuing protective placement was not supported by sufficient evidence that he has a primary need for residential care and custody and that his condition creates a substantial risk of serious harm to himself or others. See Wis. Stat. § 55.08(1)(a),(c).
Regarding his primary need for residential care and placement, the COA rejected L.A.E.’s argument that the County needed to prove every one of four specific harms: abuse, financial exploitation, neglect, and self-neglect. L.A.E. cited Susan H., which held that a primary need for residential care is present when a person requires someone else to exercise control and supervision in a residential setting for the purpose of protecting the person from “abuse, financial exploitation, neglect, and self-neglect.” (¶ 21). However, the COA held that protection from any one of the listed threats is sufficient to establish the need for protective placement and that requiring each threat to be present would prevent persons who need protection from receiving it. (¶ 24). The COA concluded there was sufficient evidence that L.A.E. has a primary need for residential care and custody to protect him from financial exploitation and abuse. (¶ 26).
The COA also affirmed the circuit court’s finding that L.A.E. presented a substantial risk of serious harm to himself because a person’s tendency to provoke violent conflict is a substantial risk. (¶ 31). Further, the County presented evidence that L.A.E. resisted medical treatment after falls that resulted in hospitalization for months and left a prior placement with no money, food, water, or viable place to live. The COA concluded there was no support available, other than care in a custodial setting, that can “protect against the risk inherent in being unable to get up after a fall and unwilling to seek assistance, or the risk inherent in leaving his residence with no resources and no means or plan to support himself.” (¶ 32).