## Facts

- Richard Pescinski was adjudicated incompetent in 1958 and committed to a state hospital with chronic catatonic schizophrenia.
- His sister, Janice Pescinski Lausier, served as guardian of his person.
- Another sister, Elaine Jeske, suffered kidney failure, had both kidneys removed, and required a transplant to avoid death; she was maintained on dialysis.
- Other potential donors were not used: the parents were considered too old by the surgeon; Elaine’s minor children were rejected as a matter of the surgeon’s moral judgment; another adult sibling declined.
- Janice petitioned the county court to authorize medical testing and, if compatible, removal of one of Richard’s kidneys for transplant to Elaine; testing showed Richard was a suitable donor.
- Richard’s guardian ad litem refused to consent.
- There was no evidence Richard had ever consented, previously expressed a wish to donate, or would receive any medical benefit from the surgery.

## Issues

1. Whether a Wisconsin county court supervising a guardianship has authority to order removal of a kidney from an incompetent ward for transplantation to a sibling when the ward has not consented, the guardian ad litem objects, and the procedure provides no benefit to the ward.
2. Whether a court may authorize such non-therapeutic organ removal under a “substituted judgment” theory rather than a best-interests standard centered on the ward.

## Decision

- The Wisconsin Supreme Court affirmed the county court’s denial of the petition.
- The court held it lacked authority to order non-therapeutic kidney removal from an incompetent ward solely to benefit another person.
- The court declined to apply substituted judgment in this setting, emphasizing the absence of evidence of the ward’s wishes.
- Because the procedure posed risks and permanent loss of an organ with no corresponding benefit to the ward, it could not be justified as in the ward’s best interests.

## Legal Principles

- A guardian’s powers are fiduciary and limited to actions taken in the best interests of the ward; they do not include consenting to major non-therapeutic surgery that harms the ward and benefits only others.
- Absent statutory authorization, courts supervising guardianships may not compel or authorize removal of a major organ from an incompetent person for transplantation to another where the ward has not consented.
- Substituted judgment is not an acceptable basis for authorizing organ donation from an incompetent person when the person’s prior intent cannot be reliably determined and the decision is fundamentally personal and altruistic.
- Protection of bodily integrity for persons unable to consent requires heightened safeguards; humanitarian need of a recipient cannot override lack of consent and lack of donor benefit.

## Conclusion

The court refused to authorize kidney removal from an incompetent ward for a sibling’s transplant because guardianship authority must serve the ward’s best interests, and neither statutory power, valid consent, nor any benefit to the ward supported imposing major non-therapeutic surgery.


In re Guardianship of Pescinski, 226 N.W.2d 180 (Wis. 1975)