Methods and forms for creating custodial trusts.
Uniformity of application and construction.
Ch. 880 Cross-reference
See definitions in ch. 851
For the purpose of this chapter, unless the context otherwise requires:
"Agency" means any public or private board, corporation or association which is concerned with the specific needs and problems of mentally retarded, developmentally disabled, mentally ill, alcoholic, drug dependent and aging persons, including a county department under s. 51.42
"Developmentally disabled person" means any individual having a disability attributable to mental retardation, cerebral palsy, epilepsy, autism or another neurological condition closely related to mental retardation or requiring treatment similar to that required for mentally retarded individuals, which has continued or can be expected to continue indefinitely, substantially impairs the individual from adequately providing for his or her own care or custody and constitutes a substantial handicap to the afflicted individual. The term does not include a person affected by senility which is primarily caused by the process of aging or the infirmities of aging.
"Guardian" means one appointed by a court to have care, custody and control of the person of a minor or an incompetent or the management of the estate of a minor, an incompetent or a spendthrift.
"Incompetent" means a person adjudged by a court of record to be substantially incapable of managing his or her property or caring for himself or herself by reason of infirmities of aging, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.
"Infirmities of aging" means organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted is substantially impaired in his or her ability to adequately provide for his or her own care or custody.
"Interested person" means any adult relative or friend of a person to be protected under this subchapter; or any official or representative of a public or private agency, corporation or association concerned with the welfare of the person who is to be protected.
"Minor" means a person who has not attained the age of 18 years.
"Not competent to refuse psychotropic medication" means that, because of chronic mental illness, as defined in s. 51.01 (3g)
, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to an individual, one of the following is true:
The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.
The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her chronic mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.
"Other like incapacities" means those conditions incurred at any age which are the result of accident, organic brain damage, mental or physical disability, continued consumption or absorption of substances, producing a condition which substantially impairs an individual from providing for the individual's own care or custody.
"Spendthrift" means a person who because of the use of intoxicants or drugs or of gambling, idleness or debauchery or other wasteful course of conduct is unable to attend to business or thereby is likely to affect the health, life or property of the person or others so as to endanger the support of the person and the person's dependents or expose the public to such support.
"Ward" means a subject for whom a guardian has been appointed.
Guardianships and Protective Placements. Viney. Wis. Law. Aug. 1991.
Jurisdiction in circuit court.
The circuit court shall have jurisdiction over all petitions for guardianship. A guardianship of the estate of any person, once granted, shall extend to all of his or her estate in this state and shall exclude the jurisdiction of every other circuit court, except as provided in ch. 786
History: 1971 c. 41
; Stats. 1971 s. 880.02; 1977 c. 449
; 1979 c. 32
s. 92 (14)
Persons and estates subject to guardianship.
All minors, incompetents and spendthrifts are subject to guardianship. The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found in the county, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person or property found in the county. The court may appoint a guardian of the estate of anyone subject to guardianship, whether a resident of the state or not, if any of the estate is located within the county. Separate guardians of the person and of the estate of a ward may be appointed.
History: 1971 c. 41
; Stats. 1971 s. 880.03; 1993 a. 486
Emancipation of married minors.
Except for minors found to be incompetent, upon marriage, a minor shall no longer be a proper subject for guardianship of the person and a guardianship of the person is revoked by the marriage of a minor ward. Upon application, the court may release in whole or in part the estate of a minor ward to the ward upon the ward's marriage. Upon marriage, the guardianship of an incompetent is subject to review under s. 880.34
(2) Small estates.
If a minor or an incompetent, except for his or her incapacity, is entitled to possession of personal property of a value of $10,000 or less, any court wherein an action or proceeding involving said property is pending may, in its discretion, without requiring the appointment of a guardian, order one of the following:
Deposit in a savings account in a bank, the payment of whose accounts in cash immediately upon default of the bank are insured by the federal deposit insurance corporation; deposit in a savings account in a savings bank or a savings and loan association that has its deposits insured by the federal deposit insurance corporation; deposit in a savings account in a credit union having its deposits guaranteed by the Wisconsin credit union savings insurance corporation or by the national board, as defined in s. 186.01 (3m)
; or invest in interest-bearing obligations of the United States. The fee for the clerk's services in depositing and disbursing the funds under this paragraph is prescribed in s. 814.61 (12) (a)
Payment to the natural guardian of the minor or to the person having actual custody of the minor.
Payment to the person having actual or legal custody of the incompetent or to the person providing for the incompetent's care and maintenance for the benefit of the incompetent.
(2m) Informal administration.
If a minor or an incompetent, except for his or her incapacity, is entitled to possession of personal property of a value of $5,000 or less from an estate administered through informal administration under ch. 865
, the personal representative may, without the appointment of a guardian, do any of the following:
With the approval of the register in probate, take one of the actions under sub. (2) (a)
With the approval of the guardian ad litem of the minor or incompetent, take one of the actions under sub. (2) (a)
and file proof of the action taken and of the approval of the guardian ad litem with the probate registrar instead of filing a receipt under s. 865.21
(3) Uniform gifts and transfers to minors.
If a minor, except for his or her incapacity, is entitled to possession of personal property of any value, any court wherein an action or proceeding involving the property is pending may, without requiring the appointment of a guardian, order payment to a custodian for the minor designated by the court under ss. 880.61
or under the uniform gifts to minors act or uniform transfers to minors act of any other state.
All petitions for guardianship of residents of the state shall be directed to the circuit court of the county of residence of the person subject to guardianship or of the county in which the person is physically present. A petition for guardianship of the person or estate of a nonresident may be directed to the circuit court of any county where the person or any property of the nonresident may be found.
History: 1971 c. 41
; Stats. 1971 s. 880.05; 1975 c. 393
; 1977 c. 449
; 1987 a. 27
Change of venue. 880.06(1)(1)
The court wherein a petition is first filed shall determine venue. If it is determined that venue lies in another county, the court shall order the entire record certified to the proper court. A court wherein a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss such petition.
(2) Change of residence of ward or guardian.
If a guardian removes from the county where appointed to another county within the state or a ward removes from the county in which he or she has resided to another county within the state, the circuit court for the county in which the ward resides may appoint a new guardian as provided by law for the appointment of a guardian. Upon verified petition of the new guardian, accompanied by a certified copy of appointment and bond if the appointment is in another county, and upon the notice prescribed by s. 879.05
to the originally appointed guardian, unless he or she is the same person, and to any other persons that the court shall order, the court of original appointment may order the guardianship accounts settled and the property delivered to the new guardian.
History: 1971 c. 41
; Stats. 1971 s. 880.06; 1977 c. 449
; 1999 a. 85
Any relative, public official or other person, may petition for the appointment of a guardian of a person subject to guardianship. Such petition shall state, so far as may be known:
The name, date of birth, residence and post-office address of the proposed ward.
The nature of the proposed ward's incapacity with specification of the incompetency or spendthrift habits.
The approximate value of the proposed ward's property and a general description of its nature.
Any assets previously derived from or benefits now due and payable from the U.S. department of veterans affairs.
Any other claim, income, compensation, pension, insurance or allowance to which the proposed ward may be entitled.
Whether the proposed ward has any guardian presently.
The name and post-office address of any person nominated as guardian by the petitioner.
The names and post-office addresses of the spouse and presumptive or apparent adult heirs of the proposed ward, and all other persons believed by the petitioner to be interested.
The name and post-office address of the person or institution having the care and custody of the proposed ward.
The interest of the petitioner, and if a public official or creditor is the petitioner, then the fact of indebtedness or continuing liability for maintenance or continuing breach of the public peace as well as the authority of the petitioner to act.
If the petition under sub. (1)
alleges that the person is not competent to refuse psychotropic medication, the petition shall allege all of the following:
That the person is likely to respond positively to psychotropic medication.
That as a result of the person's failure to take medication the person is unable to provide for his or her care in the community. The person's past history is relevant to determining his or her current inability to provide for his or her care in the community under this paragraph.
That unless protective services, including psychotropic medication, are provided the person will incur a substantial probability of physical harm, impairment, injury or debilitation or will present a substantial probability of physical harm to others.
That the substantial probability of physical harm, impairment, injury or debilitation is evidenced by the person's history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act or omissions that resulted from the person's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7)
, a settlement agreement approved by a court under s. 51.20 (8) (bg)
or commitment ordered under s. 51.20 (13)
That the person has attained the age of 18 years.
A petition for guardianship may also include an application for protective placement or protective services or both under ch. 55
In accordance with s. 6.03 (3)
, any elector of a municipality may petition the circuit court for a determination that a person residing in such municipality is incapable of understanding the objective of the elective process and thereby ineligible to register to vote or to vote in an election. This determination shall be made by the court in accordance with the procedures set forth in ss. 880.08 (1)
for determining limited incompetency. When a petition is filed under this subsection, the finding of the court shall be limited to a determination as to voting eligibility. The appointment of a guardian or limited guardian is not required for a person whose sole limitation is ineligibility to vote.
If a petition for guardianship of the estate is filed, the fee prescribed in s. 814.66 (1) (b)
shall be paid at the time of filing of the inventory or other documents setting forth the value of the estate.
Failure of a petitioner for a guardianship to name persons who obviously had an interest does not cancel the jurisdiction of the court, and when the interested persons had actual knowledge of the hearing and contested it, the court could appoint a guardian. Guardianship of Marak, 59 Wis. 2d 139
, 207 N.W.2d 648
Sub. (1) (e) is broad enough to include a claim for support. By providing that a guardianship petition include such a potential claim, it follows that the legislature envisioned that the circuit court has the authority to adjudicate such a claim. As ch. 880 does not otherwise address support nor provide guidelines as to how to determine support, a circuit court conducting a ch. 880 proceeding may look to ch. 767 for guidance. Amy Z. v. Jon T. 2004 WI App 73, ___ Wis. 2d ___, ___ N.W.2d ___, 03-0606
A guardian has general authority to consent to medication for a ward, but may consent to psychotropic medication only in accordance with ss. 880.07 (1m) and 880.33 (4m) and (4r). The guardian's authority to consent to medication or medical treatment of any kind is not affected by an order for protective placement or services. OAG 5-99
Time of hearing for certain appointments.
A petition for guardianship of a person who has been admitted to a nursing home or a community-based residential facility under s. 50.06
shall be heard within 60 days after it is filed. If an individual under s. 50.06 (3)
alleges that an individual is making a health care decision under s. 50.06 (5) (a)
that is not in the best interests of the incapacitated individual or if the incapacitated individual verbally objects to or otherwise actively protests the admission, the petition shall be heard as soon as possible within the 60-day period.
History: 1993 a. 187
Notice of hearing for appointments and rehearings.
Upon the filing of a petition for guardianship, and the court being satisfied as to compliance with s. 880.07
, the court shall order notice of the time and place of hearing as follows:
A petitioner shall have notice served of a petition for appointment or change of a guardian upon the proposed incompetent and existing guardian, if any, by personal service at least 10 days before the time set for hearing. If such proposed incompetent is in custody or confinement, a petitioner shall have notice served by registered or certified mail on the proposed incompetent's custodian, who shall immediately serve it on the proposed incompetent. The custodian shall inform the proposed incompetent of the complete contents of the notice and certify thereon that the custodian served and informed the proposed incompetent and returned the certificate and notice to the circuit judge. The notice shall include the names of all persons who are petitioning for guardianship. A copy of the petition shall be attached to the notice. The court shall cause the proposed incompetent, if able to attend, to be produced at the hearing. The proposed incompetent is presumed able to attend unless, after a personal interview, the guardian ad litem certifies in writing to the court the specific reasons why the person is unable to attend. If the person is unable to attend a hearing because of physical inaccessibility or lack of transportation, the court shall hold the hearing in a place where the person may attend if requested by the proposed ward, guardian ad litem, adversary counsel or other interested person. Such notice shall also be given personally or by mail at least 10 days before the hearing to the proposed incompetent's counsel, if any, guardian ad litem, presumptive adult heirs or other persons who have legal or physical custody of the proposed incompetent whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private agency, charity or foundation from which the proposed incompetent is receiving aid and to such other persons or entities as the court may require. The court shall then proceed under s. 880.33
Notice shall be served personally upon the proposed spendthrift ward at least 10 days before the time set for hearing but the proposed ward may appear without objecting to the jurisdiction of the court over the proposed ward's person and thereupon the matter may be heard forthwith.
When the proposed ward is a minor, notice shall be given as provided in s. 879.05
to all of the following persons, if applicable:
A minor proposed ward over 14 years of age unless the minor appears at the hearing.
Any other person, agency, institution, welfare department or other entity having the legal or actual custody of the minor.
No notice under par. (am)
need be given to parents whose rights have been judicially terminated.
Notice of a rehearing to determine if a ward is a proper subject to continue under guardianship shall be given as required for the appointment of a guardian.
Those opposing the presence of an alleged incompetent at the hearing must prove that inability to attend is more probable than not. Sub. (1) specifies the mode of proof: the guardian ad litem must certify in writing to the court the specific reasons why the person is unable to attend. When this requirement is not met, the trial court lacks competency to proceed. A guardian ad litem's oral explanation that the alleged incompetent waives his or her right to be present at the hearing is inadequate. Knight v. Milwaukee County, 2002 WI App 194, 256 Wis. 2d. 1000, 651 N.W.2d 890
Nomination; selection of guardians.
The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following:
(1) Nomination by minor.
A minor over 14 years may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is without the state, or if other good reason exists, the court may dispense with the right of nomination.
If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under s. 880.35
only if no suitable individual guardian is available.
(3) Effect of nomination by minor.
If neither parent is suitable and willing, the court may appoint the nominee of a minor.