NOMINATION OF GUARDIAN;
POWERS AND DUTIES; LIMITATIONS
Selection of guardian; nominations; preferences; other criteria.
The court shall consider all of the following in determining who is appointed as guardian:
Opinions of proposed ward and family.
The court shall take into consideration the opinions of the proposed ward and of the members of his or her family as to what is in the best interests of the proposed ward. However, the best interests of the proposed ward shall control in making the determination when the opinions of the family are in conflict with those best interests.
Potential conflicts of interest.
The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest.
Agent under durable power of attorney.
The court shall appoint as guardian of the estate an agent under a proposed ward's durable power of attorney, unless the court finds that the appointment of an agent is not in the best interests of the proposed ward.
Agent under a power of attorney for health care.
The court shall appoint as guardian of the person the agent under a proposed ward's power of attorney for health care, unless the court finds that the appointment of the agent is not in the best interests of the proposed ward.
Person nominated by proposed ward. 54.15(4)(a)
Any individual other than a minor aged 14 years or younger may, if the individual does not have incapacity to such an extent that he or she is unable to form a reasonable and informed preference, execute a written instrument, in the same manner as the execution of a will under s. 853.03
, nominating another to be appointed as guardian of his or her person or estate or both if a guardian is in the future appointed for the individual. The court shall appoint this nominee as guardian unless the court finds that the appointment is not in the best interests of the proposed ward.
A minor who is 14 years or older may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is outside of the state, or if other good reason exists, the court may dispense with the minor's right of nomination.
If neither parent of a minor who is 14 years or older is suitable and willing to be appointed guardian, the court may appoint the nominee of the minor.
Parent of a proposed ward.
If one or both of the parents of a minor or an individual with developmental disability or with serious and persistent mental illness are suitable and willing, the court shall appoint one or both as guardian unless the court finds that the appointment is not in the proposed ward's best interest. The court shall consider a proposed ward's objection to the appointment of his or her parent.
Testamentary nomination by proposed ward's parents.
Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not in the minor's best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.
Private nonprofit corporation or other entity.
A private nonprofit corporation organized under ch. 181
, or 188
or an unincorporated association that is approved by the court may be appointed as guardian of the person or of the estate or both, of a proposed ward, if no suitable individual is available as guardian and the department, under rules promulgated under this chapter, finds the corporation or association to be a suitable agency to perform such duties.
See also ch. DHS 85
, Wis. adm. code.
Statement of acts by proposed guardian. 54.15(8)(a)
At least 96 hours before the hearing under s. 54.44
, the proposed guardian shall submit to the court a sworn and notarized statement as to whether any of the following is true:
The proposed guardian is currently charged with or has been convicted of a crime, as defined in s. 939.12
The proposed guardian has filed for or received protection under the federal bankruptcy laws.
Any license, certificate, permit, or registration of the proposed guardian that is required under chs. 89
, or 440
or by the laws of another state for the practice of a profession or occupation has been suspended or revoked.
If par. (a) 1.
, or 4.
applies to the proposed guardian, he or she shall include in the sworn and notarized statement a description of the circumstances surrounding the applicable event under par. (a) 1.
, or 4.
Limitation on number of wards of guardian.
No individual may have guardianship of the person of more than 5 adult wards who are unrelated to the individual, except that a court may, under circumstances that the court determines are appropriate, waive this limitation to authorize appointment of the individual as guardian of the person of additional adult wards who are unrelated to the individual. A corporation or association that is approved by the department under sub. (7)
is not limited in the number of adult wards for which the corporation or association may accept appointment by a court as guardian.
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) [now sub. (5)] 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
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor's nomination of a guardian becomes moot. Nicholas C. L. v. Julie R. L. 2006 WI App 119
, 293 Wis. 2d 819
, 719 N.W.2d 508
The above annotations relate to guardianships under ch. 880, stats., prior to the revision of and renumbering of that chapter to ch. 54 by 2005 Wis. Act 387
, 118 Wis. 2d 549
, rejected the “best interests" standard in custody disputes between parents and third parties. Barstad
has not been quashed by the enactment of ch. 54. A best interests standard that does not consider a parent's constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a 3rd party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O. 2009 WI App 176
, 322 Wis. 2d 615
, 777 N.W.2d 664
“Parent" as defined in s. 48.02 (13) as “either a biological parent . . . or a parent by adoption," applies to an action for guardianship of a minor. The action is a proceeding under ch. 48 as s. 48.14 provides that the juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under ch. 54. Application of a definition of “parent" that might include persons who are not biological or adoptive parents also runs afoul of Barstad
. Under Barstad
, a person who is not a biological or adoptive parent of a child is a 3rd party who cannot become the child's guardian over the biological or adoptive parent's objection absent compelling reasons, such as the unfitness of the biological or adoptive parent. Wendy M. v. Helen K., 2010 WI App 90
, 327 Wis. 2d 749
; 787 N.W.2d 848
General duties and powers of guardian; limitations; immunity. 54.18(1)(1)
A ward retains all his or her rights that are not assigned to the guardian or otherwise limited by statute. A guardian acting on behalf of a ward may exercise only those powers that the guardian is authorized to exercise by statute or court order. A guardian may be granted only those powers necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention.
A guardian shall do all of the following:
Exercise the degree of care, diligence, and good faith when acting on behalf of a ward that an ordinarily prudent person exercises in his or her own affairs.
Advocate for the ward's best interests, including, if the ward is protectively placed under ch. 55
and if applicable, advocating for the ward's applicable rights under ss. 50.09
Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.
Notify the court of any change of address of the guardian or ward.
No guardian may do any of the following:
Lend funds of the ward to himself or herself.
Lend funds of the ward to another individual or to an entity, unless the court first approves the terms, rate of interest, and any requirement for security.
Purchase property of the ward, except at fair market value, subject to ch. 786
, and with the approval of the court.
A guardian of the person or of the estate is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.
History: 2005 a. 387
Duties of guardian of the estate.
Subject to s. 54.18 (1)
and except as specifically limited in the order of appointment, the guardian of the estate shall, following any applicable procedures of s. 54.22
, do all of the following in order to provide a ward with the greatest amount of independence and self-determination with respect to property management in light of the ward's functional level, understanding, and appreciation of his or her functional limitations and the ward's personal wishes and preferences with regard to managing the activities of daily living:
Take possession of the ward's real and personal property, of any rents, income, and benefits accruing from the property, and of any proceeds arising from the sale, mortgage, lease, or exchange of the property, and prepare an inventory of these. Subject to this possession, the title of all the income and assets of the ward and the increment and proceeds of the income and assets of the ward remains vested in the ward and is not vested in the guardian.
Retain, expend, distribute, sell, or invest the ward's property, rents, income, benefits, and proceeds and account for all of them, subject to chs. 786
Determine, if the ward has executed a will, the will's location, determine the appropriate persons to be notified in the event of the ward's death, and, if the death occurs, notify those persons.
Use the ward's income and property to maintain and support the ward and any dependents of the ward.
Prepare and file an annual account as specified in s. 54.62
At the termination of the guardianship, deliver the ward's assets to the persons entitled to them.
With respect to claims, pay the legally enforceable debts of the ward, including by filing tax returns and paying any taxes owed, from the ward's estate and income and assets.
File, with the register of deeds of any county in which the ward possesses real property of which the guardian has actual knowledge, a sworn and notarized statement that specifies the legal description of the property, the date that the ward is determined to be incompetent, and the name, address, and telephone number of the ward's guardian and any surety on the guardian's bond.
For a ward who receives governmental benefits for which a representative payee is appropriate, if no representative payee is appointed, apply to be appointed the ward's representative payee, or ensure that a representative payee is appointed.
Perform any other duty required by the court order.
History: 2005 a. 387
; 2007 a. 45
Powers of guardian of the estate. 54.20(1)(1)
In exercising the powers under this section, the guardian of the estate shall use the judgment and care that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, including the permanent, rather than speculative, disposition of their funds and consideration of the probable income and safety of their capital. In addition, in exercising powers and duties under this section, the guardian of the estate shall consider, consistent with the functional limitations of the ward, all of the following:
The ward's understanding of the harm that he or she is likely to suffer as the result of his or her inability to manage property and financial affairs.
The ward's personal preferences and desires with regard to managing his or her activities of daily living.
The least restrictive form of intervention for the ward.
Powers requiring court approval.
The guardian of the estate may do any of the following with respect to the ward's income and assets only with the court's prior written approval following any petition and upon any notice and hearing that the court requires:
Make gifts, under the terms, including the frequency, amount, and donees specified by the court in approval of a petition under s. 54.21
Transfer assets of the ward to the trustee of any existing revocable living trust that the ward has created for himself or herself and any dependents, or, if the ward is a minor, to the trustee of any trust created for the exclusive benefit of the ward that distributes to him or her at age 18 or 21, or, if the ward dies before age 18 or 21, to his or her estate, or as the ward has appointed by a written instrument that is executed after the ward attains age 14.
Purchase an annuity or insurance contract and exercise rights to elect options or change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value.
Ascertain, establish, and exercise any rights available to the ward under a retirement plan or account.
Exercise any elective rights that accrue to the ward as the result of the death of the ward's spouse or parent.
Release or disclaim, under s. 854.13
, any interest of the ward that is received by will, intestate succession, nontestamentary transfer at death, or other transfer.
If appointed for a married ward, exercise any management and control right over the marital property or property other than marital property and any right in the business affairs that the married ward could exercise under ch. 766
if the ward were not an individual found incompetent, consent to act together in or join in any transaction for which consent or joinder of both spouses is required, or execute under s. 766.58
a marital property agreement with the ward's spouse or, if appointed for a ward who intends to marry, with the ward's intended spouse, but may not make, amend or revoke a will.
Provide support for an individual whom the ward is not legally obligated to support.
Convey or release a contingent or expectation interest in property, including a marital property right and any right of survivorship that is incidental to a joint tenancy or survivorship marital property.
In all cases in which the court determines that it is advantageous to continue the business of a ward, continue the business on any terms and conditions specified in the order of the court.
Apply to the court for adjustment of any claims against the ward incurred before entry of the order appointing the guardian or the filing of a lis pendens as provided in s. 54.47
. The court shall by order fix the time and place it will adjust claims and the time within which all claims shall be presented. Notice of these times and the place shall be given by publication as provided in s. 879.05 (4)
, and ch. 859
generally shall apply. After the court has made the order, no action or proceeding may be commenced or maintained in any court against the ward upon any claim over which the circuit court has jurisdiction.
Powers that do not require court approval.
The guardian of the estate may do any of the following on behalf of the ward without first receiving the court's approval:
Provide support from the ward's income and assets for an individual whom the ward is legally obligated to support.
Enter into a contract, other than a contract under sub. (2)
or that is otherwise prohibited under this chapter.
Exercise options of the ward to purchase securities or other property.
Authorize access to or release of the ward's confidential financial records.
Retain any real or personal property that the ward possesses when the guardian is appointed or that the ward acquires by gift or inheritance during the guardian's appointment.
Subject to ch. 786
, sell, mortgage, pledge, lease, or exchange any asset of the ward at fair market value.
Invest and reinvest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in accordance with ch. 881
Notwithstanding ch. 881
, after such notice as the court directs, and subject to ch. 786
, invest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in the real or personal property that is determined by the court to be in the best interests of the estate of the ward.
Settle all claims and accounts of the ward and appear for and represent the ward in all actions and proceedings except those for which another person is appointed.
Take any other action, except an action specified under sub. (2)
, that is reasonable or appropriate to the duties of the guardian of the estate.
History: 2005 a. 387
; 2015 a. 300
The standard for a trial court's exercise of discretion for a guardian of a married person is whether the proposed action will benefit the ward, the estate, or members of the ward's immediate family. In Matter of Guardianship of F.E.H. 154 Wis. 2d 576
, 453 N.W.2d 882
A guardian is not authorized to make gifts from the guardianship estate to effectuate an estate plan that would avoid future death taxes. Michael S.B. v. Berns, 196 Wis. 2d 920
, 540 N.W.2d 11
(Ct. App. 1995), 95-0580
A guardian may not sue for the loss of society and companionship of a ward, nor bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc. 229 Wis. 2d 271
, 600 N.W.2d 21
(Ct. App. 1999), 98-3285