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.
(4) Guardian of the person nominated by will.
Subject to the rights of a surviving parent, a parent may by will nominate a guardian of the person of his or her minor child.
(5) Guardian of the estate nominated by will.
A parent may by will nominate a guardian of the estate of the parent's minor child and may waive the requirement of a bond as to such estate derived through the will.
(6) Testamentary guardianship of certain persons.
Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate of any of his or her minor children who are in need of guardianship. For a person over the age of 18 found to be in need of guardianship under s. 880.33
by reason of a developmental disability or other like incapacity, a parent may by will nominate a testamentary guardian.
(7) Anticipatory nomination; preference.
Any person other than a minor may, at such time as the person has sufficient capacity to form an intelligent preference, execute a written instrument, in the same manner as the execution of a will under s. 853.03
, nominating a person to be appointed as guardian of his or her person or property or both in the event that a guardian is in the future appointed. Such nominee shall be appointed as guardian by the court unless the court finds that the appointment of such nominee is not in the best interests of the person for whom, or for whose property, the guardian is to be appointed.
History: 1971 c. 41
; Stats. 1971 s. 880.09; 1973 c. 284
; 1975 c. 393
; 1977 c. 449
; 1993 a. 486
An unfit parent's nomination of a person to serve as guardian of his or her children should be weighed by the court. In re Guardianship of Schmidt, 71 Wis. 2d 317
, 237 N.W.2d 919
A parent's fundamental liberty interest in the care, custody, and control of a child is not violated if his or her nomination of a guardian is not presumed to be in the child's best interests when the parent is unable to have custody and provide care. The preference in sub. (2) does not address a parent's wishes for another to act as guardian when the parent is not suitable to act as guardian. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M. 2004 WI App 45, 270 Wis. 2d 411
, 678 N.W.2d 285
Notice of appointment.
If for any reason the court fails to appoint as guardian the nominee of the minor, the guardian who qualifies shall give notice of the guardian's appointment to the minor by certified mail addressed to the minor's last-known post-office address and an affidavit of such mailing shall be filed with the court within 10 days after the issuance of letters.
History: 1971 c. 41
; Stats. 1971 s. 880.10; 1993 a. 486
Determination and order appointing guardian. 880.12(1)(1)
The court shall after hearing determine whether the person is a proper subject for guardianship. If the person is found to be in need of a guardian, the court shall appoint one or more guardians but not more than one guardian of the person shall be appointed unless they be husband and wife. The order shall specify the amount of the bond, if any, to be given.
In appointing a guardian for a person who has been admitted to a nursing home or a community-based residential facility under s. 50.06
, the court shall make a finding as to whether the person's incompetence is potentially reversible.
History: 1971 c. 41
; Stats. 1971 s. 880.12; 1993 a. 187
Sufficiency of bond.
In any action or proceeding wherein funds are to be paid to a guardian, the trial court or court approving disbursement of such funds shall, prior to payment or approval, be satisfied as to the sufficiency of the penal sum of the guardian's bond.
History: 1971 c. 41
; Stats. 1971 s. 880.125.
Form of bond.
Upon the appointment of a guardian of the estate of a ward, except as provided under s. 880.60 (9)
, the court may require a bond given in accordance with ch. 878
and s. 895.345
, conditioned upon the faithful performance of the duties of the guardian.
Unless required under s. 880.60 (9)
, the court may waive the requirement of a bond at any time in its discretion or if so requested in a will wherein a nomination appears.
Whenever a guardian has or will have possession of funds with a total value of $40,000 or less, the court may direct deposit of the funds in an insured account of a bank, credit union, savings bank or savings and loan association in the name of the guardian and the ward and payable only upon further order of the court. In such event the court may waive the requirement of a bond.
(3) Blanket bond for employee guardian or conservator.
The circuit court may designate one or more persons who are county institutional employees, whose duty it is to act as guardian of one or more estates of incompetent persons upon appointment by the court, or as conservator for the estates of persons making application therefor, who are residents of the county home, patients of the county hospitals or county mental hospitals. The appointments shall be made subject to this chapter. The person, before entering upon duties, shall take an official oath. The court may waive the requirement of a bond or may require the person to give bond, with sufficient sureties, to the judge of the court, in a sum not less than $1,000 subject to court approval. The bond shall cover the person so designated and appointed in all guardianships and conservatorships to which the person has been or shall be appointed by the court. Additional bonds may be required from time to time. The expense of surety upon the bonds shall be paid by the county treasurer on the order of the circuit judge. The term of the person appointed shall terminate upon resignation or removal and approval of the person's accounts by the court.
When letters to be issued.
When a guardian has given bond as required and the bond has been approved by the judge, letters under the seal of the court shall be issued to the guardian.
History: 1971 c. 41
; Stats. 1971 s. 880.14; 1993 a. 486
Temporary guardian. 880.15(1)(1)
If, after consideration of a petition for temporary guardianship, the court finds that the welfare of a minor, spendthrift or an alleged incompetent requires the immediate appointment of a guardian of the person or of the estate, or of both, it may appoint a temporary guardian for a period not to exceed 60 days unless further extended for 60 days by order of the court. The court may extend the period only once. The authority of the temporary guardian shall be limited to the performance of duties respecting specific property, or to the performance of particular acts, as stated in the order of appointment. All provisions of the statutes concerning the powers and duties of guardians shall apply to temporary guardians except as limited by the order of appointment. The temporary guardian shall make the reports the court directs and shall account to the court upon termination of authority. The court assigned to exercise jurisdiction under chs. 48
has exclusive jurisdiction over the appointment of a temporary guardian of a minor for medical purposes but shall proceed in accordance with this section.
(1m) Adoption by temporary guardian.
No person appointed temporary guardian of a child under this section may adopt the child without complying with the adoption procedures of ch. 48
(1s) Notice of petition.
The person petitioning for appointment of a temporary guardian shall cause notice to be given under s. 880.08
of that petition to the minor, spendthrift or alleged incompetent and, if the appointment is made, shall give notice of the appointment to the ward. The time limits of s. 880.08
do not apply to notice given under this subsection. The notice shall be served before or at the time the petition is filed or as soon thereafter as possible and shall include notice of the right to counsel and of the right to petition for reconsideration or modification of the temporary guardianship under s. 880.34
within 30 days of receipt of the notice.
(2) Bond of temporary guardian.
Every temporary guardian appointed under sub. (1)
shall before entering upon the duties of his or her trust give bond to the judge of the circuit court in such sum and with such sureties the court designates and approves.
(3) Cessation of powers.
If the temporary guardianship is not sooner terminated the duties and powers of the temporary guardian shall cease upon the issuing of letters of permanent guardianship to the guardian of the ward, or, if the ward is a minor, upon his becoming of age, or when it shall be judicially determined that any other disability of the temporary ward which was the cause of the temporary guardianship has terminated. Upon termination of the temporary guardian's duties and powers, a temporary guardian of the person shall file with the court any report that the court requires. A temporary guardian of the estate shall, upon termination of duties and powers, account to the court and deliver to the person or persons entitled to them all the estate of the ward in his or her hands. Any action which has been commenced by the temporary guardian may be prosecuted to final judgment by the successor or successors in interest, if any.
History: 1971 c. 41
; Stats. 1971 s. 880.15; 1977 c. 354
; 1979 c. 175
; 1981 c. 379
; 1995 a. 77