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48.978(3)(c) (c) Commencement of duty and authority of designated standby guardian.
48.978(3)(c)1. 1. If a written designation under par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent's incapacity, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a determination of incapacity under sub. (4).
48.978(3)(c)2. 2. If a written designation under par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent's death, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a certificate of the parent's death.
48.978(3)(c)3. 3. If a written designation under par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent becoming debilitated and consenting to the beginning of the standby guardianship, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a determination of debilitation under sub. (4) and a copy of the parent's written consent to the beginning of that duty and authority signed by the parent in the presence of 2 witnesses, neither of whom may be the standby guardian, and by the standby guardian. If the parent is physically unable to sign that written consent, another person 18 years of age or over who is not the standby guardian may sign the written consent on behalf of the parent and at the direction of the parent, in the presence of the parent and 2 witnesses, neither of whom may be the standby guardian.
48.978(3)(c)4. 4. Subject to par. (d) 2., the standby guardian shall file a petition under par. (e) for judicial appointment as standby guardian of the child within 180 days after the date on which the standby guardianship begins. If the standby guardian fails to file that petition within those 180 days, the standby guardian's duty and authority shall end 180 days after the date on which the standby guardianship began. If the standby guardian files the petition after the expiration of those 180 days, the duty and authority of the standby guardian shall begin again on the date on which the petition is filed.
48.978(3)(d) (d) Suspension of duty and authority of designated standby guardian.
48.978(3)(d)1.1. The duty and authority of a standby guardian designated under par. (a) shall be suspended on the receipt by the standby guardian of a copy of a determination of recovery or remission under sub. (5).
48.978(3)(d)2. 2. If the standby guardian receives a determination of recovery or remission under subd. 1. before the standby guardian files the petition under par. (e), the standby guardian need not file the petition under par. (e).
48.978(3)(d)3. 3. If the standby guardian receives a determination of recovery or remission under subd. 1. after the standby guardian files the petition under par. (e), but before the standby guardian is judicially appointed under par. (g), the standby guardian shall file that determination with the court with which the petition is filed by the time of the next hearing on the petition or within 7 days after the date on which the standby guardian receives that determination, whichever is sooner. On compliance with this subdivision, the court shall dismiss the petition. If the standby guardian fails to file that determination with that court within those 7 days, the court may rescind the guardianship.
48.978(3)(d)4. 4. If the standby guardian receives a determination of recovery or remission under subd. 1. after the standby guardian is judicially appointed under par. (g), the standby guardian shall file that determination with the court that entered the guardianship order within 90 days after the date on which the standby guardian receives that determination. If the standby guardian fails to file that determination with that court within those 90 days, the court may rescind the guardianship order.
48.978(3)(d)5. 5. The duty and authority of a standby guardian that are suspended under subd. 1. shall begin again as provided in par. (c).
48.978(3)(e) (e) Petition for judicial appointment. A petition for judicial appointment as standby guardian of a child under this subsection shall be in the same form as a petition under sub. (2) (b) and shall set forth with specificity the information specified in sub. (2) (b) 1. to 4. and 7. to 11. The petition shall also contain a statement that the parent has become incapacitated, has died, or has become debilitated and has consented to the beginning of the duty and authority of the standby guardian. In addition, the petition shall be accompanied by the following documentation:
48.978(3)(e)1. 1. The written designation under par. (a) signed or consented to by each parent of the child or, if a parent cannot with reasonable diligence be located or has refused to consent to the designation, the written designation under par. (a) signed by one parent and a statement of the efforts made to find the other parent or of the fact that the other parent has refused to consent to the designation.
48.978(3)(e)2. 2. A copy of the determination of incapacity received under par. (c) 1., the certificate of death received under par. (c) 2. or the determination of debilitation and written consent received under par. (c) 3.
48.978(3)(e)3. 3. If the petition is filed by a person who has been designated as an alternate standby guardian, a statement that the person designated as standby guardian is unwilling or unable to act as standby guardian and the factual basis for that statement.
48.978(3)(f) (f) Procedure for judicial appointment.
48.978(3)(f)1.1. The petitioner shall cause the petition and notice of the time and place of the plea hearing under subd. 2. to be served on all of the persons specified in sub. (2) (c) 1. a. to f. and on the parent who has made the written designation under par. (a), if living. Service shall be made in the manner provided in sub. (2) (c) 2.
48.978(3)(f)2. 2. The court shall hold a plea hearing, a fact-finding hearing and a dispositional hearing in the manner provided in sub. (2) (d) to (g) and shall enter a dispositional order as provided in sub. (2) (j) and (k) 1., except that at the fact-finding hearing any party may present evidence relevant to the issues specified in par. (g), and at the conclusion of that hearing the court shall immediately proceed to a dispositional hearing, unless an adjournment is requested, if the court finds by clear and convincing evidence that the conditions specified in par. (g) have been met.
48.978(3)(g) (g) Required findings by court. The court shall appoint a person to be a standby guardian under this subsection if, after making the following findings by clear and convincing evidence, the court determines that the appointment is in the best interests of the child:
48.978(3)(g)1. 1. That the person was designated as standby guardian in accordance with pars. (a) and (b).
48.978(3)(g)2. 2. That the standby guardian has received a determination of incapacity, a death certificate, or a determination of debilitation and written consent, as provided in par. (c) 1., 2. or 3., whichever is applicable.
48.978(3)(g)3. 3. That the child has no parent who is willing and able to exercise the duty and authority of guardianship.
48.978(3)(g)4. 4. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent or, if a parent has refused to consent to the designation of the standby guardian, the consent was unreasonably withheld.
48.978(3)(g)5. 5. That, if the petitioner is a person designated as an alternate standby guardian, the person designated as standby guardian is unwilling or unable to act as standby guardian.
48.978(3)(h) (h) Dispositional factors. In determining the appropriate disposition under par. (g), the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
48.978(3)(h)1. 1. Whether the person designated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
48.978(3)(h)2. 2. The willingness and ability of the person designated as standby guardian or alternate standby guardian to serve as the child's guardian.
48.978(3)(h)3. 3. The wishes of the child.
48.978(3)(i) (i) Appearance by parent. If the parent who has made a written designation under par. (a) is medically unable to appear at a hearing specified in par. (f) 2., the court may dispense with the parent's appearance, except on the motion of a party and for good cause shown.
48.978(3)(j) (j) Revocation by parent.
48.978(3)(j)1.1. A parent who has made a written designation under par. (a) may, at any time before the filing of a petition under par. (e), revoke a standby guardianship created under this subsection by executing a written revocation and notifying the standby guardian in writing of the revocation, making a subsequent written designation under par. (a) or verbally revoking the standby guardianship in the presence of 2 witnesses.
48.978(3)(j)2. 2. After a petition under par. (e) has been filed but before the standby guardian has been judicially appointed under par. (g), a parent who has made a written designation under par. (a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court with which the petition has been filed and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may dismiss the petition and rescind the guardianship if the court determines that dismissal of the petition and rescission of the guardianship are in the best interests of the child.
48.978(3)(j)3. 3. After the standby guardian has been judicially appointed under par. (g), a parent who has made a written designation under par. (a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court that entered the guardianship order and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may rescind the guardianship order if the court determines that rescission of the guardianship order is in the best interests of the child.
48.978(3)(k) (k) Renunciation of designation.
48.978(3)(k)1.1. A person whom a parent has designated as a standby guardian under par. (a) may, at any time before the filing of a petition under par. (e), renounce that designation by executing a written renunciation and notifying the parent, if living, in writing of that renunciation.
48.978(3)(k)2. 2. After a petition under par. (e) has been filed, but before the standby guardian has been judicially appointed under par. (g), a person whom a parent has designated as a standby guardian under par. (a) may renounce that designation by executing a written renunciation, filing the renunciation with the court with which the petition has been filed and notifying the parent, if living, in writing of that renunciation. On compliance with this subdivision, the court may accept the renunciation and rescind the guardianship order if the court finds that the renunciation and rescission are in the best interests of the child.
48.978(3)(k)3. 3. A person who has been judicially appointed as a standby guardian under par. (g) may, at any time after that appointment, resign that appointment by executing a written resignation, filing the resignation with the court that entered the guardianship order and notifying the parent who designated the person as a standby guardian under par. (a), if living, in writing of that resignation. On compliance with this subdivision, the court may accept the resignation and rescind the guardianship order if the court determines that the resignation and rescission are in the best interests of the child.
48.978(4) (4) Determination of incapacity or debilitation.
48.978(4)(a) (a) In general.
48.978(4)(a)1.1. A determination of incapacity or debilitation under this section shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the cause and nature of the parent's incapacity or debilitation and the extent and probable duration of the incapacity or debilitation.
48.978(4)(a)2. 2. If a standby guardian's identity is known to an attending physician making a determination of incapacity or debilitation, the attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian.
48.978(4)(b) (b) On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's incapacity or debilitation for purposes of this section.
48.978(4)(c) (c) Information to be provided to parent. On receipt of a determination of a parent's incapacity, a standby guardian shall inform the parent of all of the following, if the parent is able to comprehend that information:
48.978(4)(c)1. 1. That a determination of incapacity has been made and, as a result, the duty and authority of the standby guardian have begun.
48.978(4)(c)2. 2. That the parent may revoke the standby guardianship in accordance with sub. (2) (n) 5. or (3) (j) 1., 2. or 3., whichever is applicable.
48.978(5) (5) Determination of recovery or remission.
48.978(5)(a) (a) In general.
48.978(5)(a)1.1. A determination that a parent has recovered or is in remission from his or her incapacity or debilitation shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the extent and probable duration of the recovery or remission.
48.978(5)(a)2. 2. If a standby guardian's identity is known to an attending physician making a determination of recovery or remission, the attending physician shall provide a copy of the determination of recovery or remission to the standby guardian.
48.978(5)(b) (b) On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's recovery or remission for purposes of this section.
48.978(6) (6) Parental rights; duty and authority of standby guardian.
48.978(6)(a)(a) Parental rights. The beginning of the duty and authority of a standby guardian under sub. (2) or (3) does not, in itself, divest a parent of any parental rights.
48.978(6)(b) (b) Duties and authority of guardian.
48.978(6)(b)1.1. Unless limited under subd. 2., a standby guardian appointed under sub. (2) or designated under sub. (3) shall have all of the duties and authority specified in s. 48.023.
48.978(6)(b)2. 2. The court may order or a parent may provide that the duties and authority of a standby guardian appointed under sub. (2) or designated under sub. (3) be limited. The duties and authority of a limited standby guardian shall be as specified by the order of appointment under sub. (2) (j) 2. or the written designation under sub. (3) (a). All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited standby guardian appointed under sub. (2) or designated under sub. (3) to the extent those provisions are relevant to the duties or authority of the limited standby guardian, except as limited by the order of appointment or written designation.
48.978(7) (7) Relationship to ch. 54.
48.978(7)(a)(a) Except when a different right, remedy or procedure is provided under this section, the rights, remedies, and procedures provided in ch. 54 shall govern a standby guardianship created under this section.
48.978(7)(b) (b) This section does not abridge the duties or authority of a guardian appointed under ch. 880, 2003 stats., or ch. 54.
48.978(7)(c) (c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian under ch. 54.
48.978 History History: 1997 a. 334; 2005 a. 130, 387; 2007 a. 96; 2009 a. 94.
48.979 48.979 Delegation of power by parent.
48.979(1)(1)
48.979(1)(a) (a) A parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, as provided in par. (am), any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. A delegation of powers under this paragraph does not deprive the parent of any of his or her powers regarding the care and custody of the child.
48.979(1)(am) (am) A delegation of powers to an agent under par. (a) may remain in effect for no longer than one year, except that such a delegation may remain in effect for longer than one year if the delegation is to a relative of the child or the delegation is approved by the court as provided in sub. (1m).
48.979(1)(b) (b) If a delegation of powers to an agent under par. (a) is facilitated by an entity, as defined in s. 48.685 (1) (b), that entity shall obtain the information specified in s. 48.685 (2) (b) with respect to the proposed agent and any nonclient resident, as defined in s. 48.685 (1) (bm), of the proposed agent. Subject to s. 48.685 (5), if that information indicates that the proposed agent may not be a contractor, as defined in s. 48.685 (1) (ar), of the entity or that a nonclient resident of the proposed agent may not be permitted to reside with the proposed agent for a reason specified in s. 48.685 (4m) (b) 1. to 5., the entity may not facilitate a delegation of powers to the proposed agent under par. (a). The entity shall provide the department of health services with information about each person who is denied a delegation of powers or permission to reside under this paragraph for a reason specified in s. 48.685 (4m) (b) 1. to 5.
48.979(1)(bm) (bm) A parent may not delegate under par. (a) his or her powers regarding the care and custody of a child who is subject to the jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or 938.14 unless the court approves the delegation.
48.979(1)(c) (c) A parent who has legal custody of a child may not place the child in a foster home, group home, shelter care facility, or inpatient treatment facility by means of a delegation of powers under par. (a). Those placements may be made only by means of a court order or as provided in s. 48.63 or 51.13.
48.979(1)(d) (d) A delegation of powers under par. (a) does not prevent or supersede any of the following:
48.979(1)(d)1. 1. An agency, a sheriff, or a police department from receiving and investigating a report of suspected or threatened abuse or neglect of the child under s. 48.981.
48.979(1)(d)2. 2. The child from being taken into and held in custody under ss. 48.19 to 48.21 or 938.19 to 938.21.
48.979(1)(d)3. 3. An intake worker from conducting an intake inquiry under s. 48.24 or 938.24.
48.979(1)(d)4. 4. A court from exercising jurisdiction over the child under s. 48.13 or 938.13.
48.979(1)(dm) (dm) A delegation of powers under par. (a) regarding the care and custody of an Indian child for any length of time is subject to the requirements of s. 48.028 (5) (a). A delegation of powers under par. (a) regarding the care and custody of an Indian child for longer than one year is also subject to the requirements of s. 48.028 (3) (c), (4) (a), and (7) (a), (c), (e), and (f).
48.979(1)(e) (e) A parent who has delegated his or her powers regarding the care and custody of a child under par. (a) may revoke that delegation at any time by executing a written revocation and notifying the agent in writing of the revocation. A written revocation invalidates the delegation of powers except with respect to acts already taken in reliance on the delegation of powers.
48.979(1m) (1m)
48.979(1m)(a)(a) A parent who wishes a delegation of powers under sub. (1) (a) to an agent who is not a relative of the child to remain in effect for longer than one year, the agent to whom the parent wishes to delegate those powers, or an organization that is facilitating that delegation shall file a petition with the court requesting the court's approval of that delegation. The petition shall be entitled “In the interest of .... (child's name), a person under the age of 18." The petitioner shall attach a draft copy of the power of attorney delegating those powers to the petition and shall state in the petition all of the following:
48.979(1m)(a)1. 1. The name, address, and date of birth of the child who is the subject of the delegation of powers and whether the child has been adopted.
48.979(1m)(a)2. 2. The names and addresses of the parents of the child.
48.979(1m)(a)3. 3. The name and address of the person nominated as agent and the relationship of the agent to the child.
48.979(1m)(a)4. 4. Whether the parent wishes to delegate to the agent full parental power regarding the care and custody of the child or partial parental power regarding the care and custody of the child and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers.
48.979(1m)(a)5. 5. The proposed term of the delegation of powers, the reasons for the delegation of powers, and whether the parent proposes to provide any support to the agent during that term. If so, the petition shall indicate the amount of that support.
48.979(1m)(a)6. 6. Facts and circumstances showing that the delegation of powers would be in the best interests of the child and that the person nominated as agent is fit, willing, and able to exercise those powers.
48.979(1m)(a)7. 7. If the delegation of powers is being facilitated by an entity, as defined in s. 48.685 (1) (b), facts and circumstances showing that the entity has complied with sub. (1) (b) and is permitted under sub. (1) (b) to facilitate that delegation.
48.979(1m)(a)8. 8. The information required under s. 822.29 (1) and whether the child is subject to the jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or 938.14.
48.979(1m)(a)9. 9. Whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822.
48.979(1m)(a)10. 10. Whether the child may be subject to s. 48.028 or 938.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to those sections or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 7 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on July 1, 2019. Published and certified under s. 35.18. Changes effective after July 1, 2019, are designated by NOTES. (Published 7-1-19)