2017 - 2018 LEGISLATURE
November 10, 2017 - Introduced by Representatives Skowronski, Brostoff,
Stafsholt, Meyers, Novak, Tittl, Kulp, Mursau, Tusler, Ohnstad, Macco,
Anderson, Berceau, Kitchens, E. Brooks, Sinicki, R. Brooks and
Hesselbein, cosponsored by Senators Stroebel, Olsen and Wirch. Referred
to Committee on Mental Health.
1An Act to repeal
54.34 (3) (a) to (j) and 54.38 (1m); to renumber and amend
54.34 (3) (intro.); to amend
54.30 (1), 54.34 (1) (intro.) and 54.44 (1) (c) 1.; and 3to create
chapter 53 and 54.30 (4) of the statutes; relating to: uniform adult
Analysis by the Legislative Reference Bureau
In 2007, the National Conference of Commissioners of Uniform State Laws
approved and recommended the Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act for enactment in all states. This bill incorporates the
uniform act into Wisconsin law with some modifications. Generally, the bill
addresses court jurisdiction for guardianships of adults. Under the bill, an adult for
whom the appointment of a guardian of the person or of the estate is sought is known
as the respondent.
Subchapter I: General provisions
The bill allows a Wisconsin court to communicate with a court in another state
concerning a guardianship. The Wisconsin court may allow the parties to participate
in the communication and the bill specifies when and for what the court is required
to make a record of that communication. Additionally, in a guardianship, a
Wisconsin court may request the court of another state to do certain things including
holding an evidentiary hearing, ordering a person in that state to produce evidence
or give testimony, or issuing any order necessary to assure a person's appearance in
a proceeding or to authorize the release of relevant information. If a court in another
state requests that a Wisconsin court do one of the certain things specified in the bill,
the bill specifies that the Wisconsin court has jurisdiction for the limited purpose of
granting the request or making reasonable efforts to comply with the request. The
bill provides a means by which a person in another state may be deposed or allowed
to testify in a proceeding in Wisconsin.
Subchapter II: Jurisdiction
For purposes of jurisdiction, the bill defines a respondent's home state as the
state in which the respondent was physically present, including any period of
temporary absence, for at least six consecutive months immediately before the filing
of a petition for a guardianship of the person or estate. If there is no such state, the
home state is defined as the state in which the respondent was physically present,
including any period of temporary absence, for at least six consecutive months
ending within the six months prior to the filing of the petition for guardianship. The
bill defines a significant-connection state as a state, other than the home state, with
which a respondent has a significant connection other than mere physical presence
considering factors specified in the bill. The bill specifies a list of items a court must
consider in determining whether a respondent has a significant connection with a
particular state. The bill creates the exclusive basis for personal jurisdiction for a
Wisconsin court to appoint a guardian of the person or the estate for an adult.
Under the bill, a Wisconsin court has personal jurisdiction to appoint a
guardian of the person or the estate for a respondent if any of the following is true:
1) Wisconsin is the respondent's home state; 2) on the date the petition is filed,
Wisconsin is a significant-connection state and the respondent does not have a home
state, a court of the respondent's home state has declined to exercise jurisdiction
because Wisconsin is a more appropriate forum, or the respondent has a home state
but a petition is not pending in a court in that state and other circumstances are
satisfied; 3) Wisconsin does not have jurisdiction as a home state or
significant-connection state but the home state and all significant-connection states
have declined to exercise jurisdiction because Wisconsin is the more appropriate
forum and jurisdiction in Wisconsin is consistent with the Wisconsin and U.S.
constitutions; or 4) the Wisconsin court meets the requirements for special
jurisdiction. Under the bill, a Wisconsin court that otherwise lacks jurisdiction
under the bill has special jurisdiction to do any of the following: 1) appoint a
temporary guardian under current law standards, procedures, and time lines; 2)
issue an order with respect to real or tangible personal property located in Wisconsin;
or 3) appoint a guardian of the person or the estate for a person for whom a
provisional order to transfer the proceeding from another state has been issued
under certain procedures. The bill requires a Wisconsin court to dismiss a proceeding
for appointment of a temporary guardian, either before or after the appointment of
the temporary guardian, upon the request of a court of the home state, if Wisconsin
was not the respondent's home state on the date the petition for appointment was
filed. Except for that requirement to dismiss a proceeding on the appointment of a
temporary guardian, a court that has appointed a guardian of the person or issued
an order to appoint a guardian of the estate has exclusive and continuing jurisdiction
over the proceeding until the court terminates the proceeding or the appointment or
order expires. The bill requires that, if a petition for appointment of a guardianship
is brought in Wisconsin but Wisconsin is not the respondent's home state, notice of
the petition must be given to all of those persons who are entitled to notice under
Wisconsin law and the law of the respondent's home state. The bill requires that this
notice be given in the same manner as notice is required to be given in Wisconsin.
A Wisconsin court that has jurisdiction to appoint a guardian may decline to
exercise its jurisdiction if it determines that another state's court is a more
appropriate forum. The bill provides procedures for the Wisconsin court to decline
jurisdiction and specifies factors the court must consider in determining whether it
is an appropriate forum. The bill specifies actions the court may take if it determines
it acquired jurisdiction to appoint a guardian of the person or issue an order to
appoint a guardian of the estate because of unjustifiable conduct. In addition, the
bill specifies actions the court may and must take if petitions for appointment of a
guardian of the person or issuance of an order to appoint a guardian of the estate are
filed in more than one state.
Subchapter III: Transfer of guardianship
Under the bill, a guardian of the person or the estate appointed in Wisconsin
may petition the court to transfer the guardianship to another state. Notice of a
transfer petition must be given to the persons that would be entitled to notice of a
petition for the appointment of a guardian in Wisconsin. Upon request of the
guardian, the individual subject to the guardianship, or a person who is required to
be notified of the transfer petition or if the court so decides, the court must hold a
hearing on a transfer petition. The bill requires the court to issue an order
provisionally granting the transfer petition and to direct the guardian to petition for
guardianship in the other state if the court is satisfied that the guardianship will be
accepted by the other state's court and if other circumstances are satisfied. Upon the
Wisconsin court's receipt of a provisional order accepting the proceeding from the
court to which the proceeding is to be transferred and the documents required to
terminate a guardianship in Wisconsin, the court must issue a final order confirming
the transfer and terminating the guardianship.
Under the bill, to confirm transfer of a guardianship to Wisconsin, the guardian
of the person or the estate is required to petition the Wisconsin court to accept the
guardianship and include a certified copy of the other state's provisional order of
transfer. The bill eliminates the list of additional information required to be included
with that petition under current law. Notice of a petition to accept the transfer must
be given to those persons entitled to notice of a petition for the appointment of a
guardian in both Wisconsin and the state from which the guardianship would be
transferred. The bill, therefore, eliminates the list of individuals entitled to notice
of receipt and acceptance of a foreign guardianship under current law. Under the bill,
upon request of the guardian, the individual subject to the guardianship, or a person
required to be notified of the petition to accept the transfer, or on the court's own
accord, the court must hold a hearing on the petition to accept the transfer. The bill
requires the court to issue a provisional order granting the petition to accept transfer
unless a certain objection is made or the guardian is ineligible for appointment in this
state. Upon receipt of a final order from a court of another state transferring the
proceeding to Wisconsin, the Wisconsin court must issue the final order accepting the
proceeding and appointing the guardian in Wisconsin. The court must determine,
no later than 60 days after the final order accepting transfer, whether the
guardianship needs to be modified to conform to Wisconsin law. If a petitioner
requests the expansion of the guardian's powers granted in another state, the court
must hold a hearing. In granting a petition to accept transfer, the Wisconsin court
must recognize a guardianship order from the other state including the
determination of the incapacity of the respondent and the appointment of the
guardian. Even if a Wisconsin court denies a petition to accept transfer of a
guardianship from another state, the guardian may seek appointment as guardian
in Wisconsin under Wisconsin law if the court has jurisdiction to make an
appointment other than by reason of the provisional order of transfer. The court may
appoint a guardian ad litem at any time to represent the respondent's interests and
must appoint a guardian ad litem if there is an objection to a transfer or to the
acceptance of a transfer.
Subchapter IV: Registration and recognition of orders from other states
Under the bill, a guardian of the person or the estate who has been appointed
in another state, whose appointment petition as a guardian is not pending in
Wisconsin, and who has notified the appointing court of intent to register, may
register the guardianship order in Wisconsin by following certain procedures. Upon
registration of a guardianship from another state, the bill allows the guardian to
exercise all powers authorized in the order of appointment in Wisconsin, except as
prohibited under or limited by Wisconsin laws. Under the bill, a Wisconsin court may
grant any relief available to enforce a registered order.
The bill requires that consideration be given to the need to promote uniformity
of the law with respect to its subject matter among the state that enacts it.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Chapter 53 of the statutes is created to read:
uniform adult guardianship 4
153.01 Purpose; construction.
This chapter applies to the process of 2
determining jurisdiction over the person for the purpose of a guardianship 3
proceeding or matter. The chapter is intended to supplement but not replace the 4
procedure for petitioning for a guardianship under ch. 54 and for protective 5
placement or services under ch. 55. The purpose of this chapter is to resolve potential 6
conflicts regarding jurisdiction between states and to make uniform the laws with 7
respect to this chapter among those states. To the extent there is a conflict in 8
procedure between this chapter and the provisions of ch. 54 or 55, the procedures in 9
ch. 54 or 55 supersede the conflicting provision of this chapter.
In this chapter:
“Abuse” has the meaning given in s. 46.90 (1) (a).
“Financial exploitation” has the meaning given in s. 46.90 (1) (ed).
“Guardian of the estate” means a person appointed by the court of any state 14
to administer the property of an adult on the basis of a finding of incapacity or 15
incompetence or on the basis of being found to be a spendthrift, including a person 16
appointed guardian of the estate under s. 54.10 (2) or (3) and including a conservator 17
appointed in another state where that term is used for a role similar to that of a 18
guardian of the estate under s. 54.10 (2) or (3). “Guardian of the estate” does not 19
include a person appointed voluntary conservator under s. 54.76 (2).
“Guardian of the person" means a person appointed by the court to make 21
decisions regarding the person of an adult, including a guardian of the person 22
appointed under s. 54.10 (3).
“Guardianship of the person order" means an order appointing a guardian 24
of the person.
“Guardianship of the person proceeding" means a judicial proceeding in 2
which an order for the appointment of a guardian of the person is sought or has been 3
“Home state" means the state in which the respondent was physically 5
present, including any period of temporary absence, for at least 6 consecutive months 6
immediately before the filing of a petition for an order appointing a guardian of the 7
estate or the appointment of a guardian of the person; or if none, the state in which 8
the respondent was physically present, including any period of temporary absence, 9
for at least 6 consecutive months ending within the 6 months prior to the filing of the 10
“Incapacity” has the meaning given in s. 54.01 (15).
“Neglect” has the meaning given in s. 46.90 (1) (f).
“Party" means the respondent, petitioner, guardian of the person, 14
guardian of the estate, interested person, as defined in s. 54.01 (17), or any other 15
person allowed by the court to participate in a guardianship of the person proceeding 16
or proceeding for the appointment of a guardian of the estate.
“Person" has the meaning given in s. 990.01 (26).
“Record" means information that is inscribed on a tangible medium or that 19
is stored in an electronic or other medium and is retrievable in perceivable form.
“Residence” has the meaning given in s. 55.01 (6t).
“Respondent" means an adult for whom an order appointing a guardian 22
of the estate or the appointment of a guardian of the person is sought.
“Self-neglect” has the meaning given in s. 46.90 (1) (g).
“Significant-connection state" means a state, other than the home state, 2
with which a respondent has a significant connection other than mere physical 3
presence considering the factors in s. 53.21.
“State," notwithstanding s. 990.01 (40), means a state of the United States, 5
the District of Columbia, Puerto Rico, the U.S. Virgin Islands, a federally recognized 6
Indian tribe, or any territory or insular possession subject to the jurisdiction of the 7
853.03 International application.
A court of this state may treat a foreign 9
country as if it were a state for the purpose of applying this subchapter and subchs. 10
II, III, and V.
1153.04 Communication between courts. (1)
A court of this state may 12
communicate with a court in another state concerning a proceeding arising under 13
this chapter. The court may allow the parties to participate in the communication. 14
Except as otherwise provided in sub. (2), the court shall make a record of the 15
communication. The record may be limited to the fact that the communication 16
Courts may communicate concerning schedules, calendars, court records, 18
and other administrative matters without making a record.