Guardianship of Tulley, 83 Cal.App.3d at 704, 146 Cal.Rptr. at 270. The Wisconsin Supreme Court expressed a similar concern in In re Guardianship, of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975), in which it refused to adopt the doctrine of substituted judgment under circumstances analogous to those before us. In that case the guardian of an institutionalized incompetent filed a petition in county court seeking authorization for a kidney transplant from the ward to his sister, whose death was imminent without the transplant.
The Little court discussed the doctrine of substituted judgment as it was applied in Strunk. The Little court also discussed two cases where the court refused to authorize a transplant, In re Guardianship of Pescinski (1975), 67 Wis.2d 4, 226 N.W.2d 180, and In re Richardson (La.App. 1973), 284 So.2d 185. The court in Little stated:
426 A.2d at 481. The parties and the courts below referred to the case of In re Guardianship of Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975). The court of appeals, in particular, appears to have read Pescinski as supporting its conclusion that a Wisconsin circuit court is without judicial power to authorize a sterilization such as the one proposed in this case.
A guardian has the duty to manage a ward's estate in the ward's best interest. Guardianship of Nelson, 21 Wis.2d 24, 28, 123 N.W.2d 505, 508 (1963); see also Guardianship of Pescinski, 67 Wis.2d 4, 7, 226 N.W.2d 180, 181 (1975) (guardian must act in ward's best interest in caring for the ward's person). The trial court concluded that the evidence to prove that the disclaimer was in the ward's best interest was insufficient.
Id. at 79-80. In the case of In re Guardianship of Pescinski, 67 Wis.2d 4, 7-8, 226 N.W.2d 180 (1975), this court held that a guardian must act under the "best interests" standard with respect to the ward, and the court explicitly declined to adopt the "substituted judgment" standard. In the case of In re Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981), the court again chose to apply the "best interests" standard to the guardian-ward relationship.
To this effect are Erickson v. Dilgard, 44 Misc.2d 27 (N.Y.Sup.Ct. 1962) (scheme of liberty puts highest priority on free individual choice); In re Estate of Brooks, 32 Ill.2d 361 (1965) (patient may elect to pursue religious beliefs by refusing life-saving blood transfusion provided the decision did not endanger public health, safety or morals); see In re Osborne, 294 A.2d 372 (D.C. Ct. App. 1972); Holmes v. Silver Cross Hosp., 340 F. Supp. 125 (D. Ill. 1972); Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L. Rev. 1 (1975). See also In re Guardianship of Pescinski, 67 Wis.2d 4 (1975). Subordination of State interests to individual interests has not been universal, however.
While our supreme court has not ruled specifically on a case where the guardian sought to distribute guardianship estate assets to effectuate estate planning, the court has refused to adopt the doctrine of substituted judgment in other cases. In In re Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975), the court refused to adopt the doctrine of substituted judgment to authorize an operation removing an incompetent's kidney for the purpose of transferring it to the ward's sister. The court stated:
In at least two cases, however, courts have refused to authorize transplants from incompetent donors. Lausier v. Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975); In re Richardson, 284 So.2d 185 (La.Ct.App.), Cert. denied, 284 So.2d 338 (La. 1973). In Lausier, the court justified its refusal to authorize a transplant by noting the absence of specific statutory authority and calling attention to Wisconsin decisions denying the power of a guardian to make gifts from the estate of his ward.
Two prior cases suggest that a guardian would be without authority to consent to highly invasive, irreversible medical procedures that were of little or no benefit to the ward. See In Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 578, 307 N.W.2d 881 (1981) (directing the circuit courts to refrain from exercising jurisdiction over guardians' requests to give consent to the sterilization of their wards due to the relatively irreversible nature of the procedure and the lack of legislative guidance on the underlying policy issues); In re Guardianship of Pescinski, 67 Wis.2d 4, 7, 266 N.W.2d 180 (1975) (declining to authorize a guardian to consent to the removal of a ward's kidney for purposes of donation to the ward's sister because "[t]here is absolutely no evidence here that any interests of the ward will be served by the transplant."). These cases do not, however, address a guardian's authority to consent to medical procedures that are in the ward's best interest.
Two prior cases suggest that a guardian would be without authority to consent to highly invasive, irreversible medical procedures that were of little or no benefit to the ward. See In Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 578, 307 N.W.2d 881 (1981) (directing the circuit courts to refrain from exercising jurisdiction over guardians' requests to give consent to the sterilization of their wards due to the relatively irreversible nature of the procedure and the lack of legislative guidance on the underlying policy issues); In re Guardianship of Pescinski, 67 Wis.2d 4, 7, 226 N.W.2d 180 (1975) (declining to authorize a guardian to consent to the removal of a ward's kidney for purposes of donation to the ward's sister because "[t]here is absolutely no evidence here that any interests of the ward will be served by the transplant."). These cases do not, however, address a guardian's authority to consent to medical procedures that are in the ward's best interest.