54.21(3)(a)2. 2. The manner in which the terms of the will, trust, or other instrument for nontestamentary transfer became known to the petitioner for nontestamentary transfer.
54.21(3)(a)3. 3. The basis for the petitioner's belief that the copy is of the ward's most recently executed will, trust, or other instrument.
54.21(3)(b) (b) If the petitioner is unable to obtain a copy of the most recently executed will or other dispositive estate planning document or is unable to determine if the ward has previously executed a will or other dispositive estate planning document, the petitioner shall provide a statement to the court that specifies the efforts that were made by the petitioner to obtain a copy or ascertain the information.
54.21(3)(c) (c) If a copy of the most recently executed will or other dispositive estate planning document is not otherwise available, the court may order the person who has the original will or other dispositive estate planning document to provide a photocopy to the court for in camera examination. The court may provide the photocopy to the parties to the proceeding unless the court finds that doing so is contrary to the ward's best interests.
54.21(3)(d) (d) The petitioner and the court shall keep confidential the information in a will or other dispositive estate planning document, or a copy of the will or other dispositive estate planning document, under this subsection, and may not, unless otherwise authorized, disclose that information.
54.21(4) (4)The petitioner shall serve notice upon all of the following, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named in the notice, for the order described in the petition:
54.21(4)(a) (a) If not the same as the petitioner, the guardian of the person and the guardian of the estate.
54.21(4)(b) (b) Unless the court dispenses with notice under this subsection, the persons specified in sub. (2) (i), if known to the petitioner.
54.21(4)(c) (c) The county corporation counsel, if the county has an interest in the matter.
54.21(5) (5)The court shall consider all of the following in reviewing the petition:
54.21(5)(a) (a) The wishes of the ward, if known.
54.21(5)(b) (b) Whether the duration of the ward's impairment is likely to be sufficiently brief so as to justify dismissal of the proceedings in anticipation of the ward's recovered ability to decide whether, and to whom, to transfer his or her assets.
54.21(5)(c) (c) Whether the proposed transfer will benefit the ward, the ward's income and assets, or members of the ward's immediate family.
54.21(5)(d) (d) Whether the donees or beneficiaries under the proposed disposition are reasonably expected objects of the ward's generosity and whether the proposed disposition is consistent with any ascertained wishes of the ward or known estate plan or pattern of lifetime gifts that he or she has made.
54.21(5)(e) (e) Whether the proposed disposition will produce tax savings that will significantly benefit the ward, his or her dependents, or other persons for whom the ward would be concerned.
54.21(5)(f) (f) The factors specified in sub. (2) (a) to (i) and any statements or other evidence under sub. (3).
54.21(5)(g) (g) Any other factors that the court determines are relevant.
54.21(6) (6)The court may grant the petition under sub. (2) and enter an order authorizing and directing the guardian of the estate to take action requested in the petition, if the court finds and records all of the following:
54.21(6)(a) (a) That the ward has incapacity to perform the act for which approval is sought and the incapacity is not likely to change positively within a reasonable period of time.
54.21(6)(b) (b) That a competent individual in the position of the ward would likely perform the act under the same circumstances.
54.21(6)(c) (c) That, before the ward had incapacity to perform the act for which approval is sought, he or she did not manifest intent that is inconsistent with the act.
54.21(7) (7)Nothing in this section requires a guardian to file a petition under this section and a guardian is not liable or accountable to any person for having failed to file a petition under this section.
54.21 History History: 2005 a. 387.
54.22 54.22 Petition for authority to sell, mortgage, pledge, lease, or exchange ward's property. Notwithstanding s. 54.20 (3) (g), (h), and (i), a person interested in the estate of a ward may petition the court to require the guardian to sell, mortgage, pledge, lease, or exchange any asset of the estate of the ward. Following the petition and upon any notice and hearing that the court requires, the court may so order, subject to ch. 786, for the purpose of paying the ward's debts, providing for the ward's care, maintenance, and education and the care, maintenance, and education of the ward's dependents, investing the proceeds, or for any other purpose that is in the best interest of the ward.
54.22 History History: 2005 a. 387 s. 400.
54.22 Annotation Transfer of a disabled ward's property to a newly-established “Medicaid Payback Trust" was in his best interest and authorized by ss. 49.454 (4) and 880.19 (5) (b) [now this section]. Marjorie A. G. v. Dodge County Department of Human Services, 2003 WI App 52, 261 Wis. 2d 679, 659 N.W.2d 438, 02-1121.
54.22 Note NOTE: 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.
54.25 54.25 Duties and powers of guardian of the person.
54.25(1)(1)Duties. A guardian of the person shall do all of the following:
54.25(1)(a) (a) Make an annual report on the condition of the ward to the court that ordered the guardianship and to the county department designated under s. 55.02 (2). That county department shall develop reporting requirements for the guardian of the person. The report shall include the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement as to whether or not the ward is living in the least restrictive environment consistent with the needs of the ward.
54.25(1)(b) (b) Endeavor to secure any necessary care or services for the ward that are in the ward's best interests, based on all of the following:
54.25(1)(b)1. 1. Regular inspection, in person, of the ward's condition, surroundings, and treatment.
54.25(1)(b)2. 2. Examination of the ward's patient health care records and treatment records and authorization for redisclosure as appropriate.
54.25(1)(b)3. 3. Attendance and participation in staff meetings of any facility in which the ward resides or is a patient, if the meeting includes a discussion of the ward's treatment and care.
54.25(1)(b)4. 4. Inquiry into the risks and benefits of, and alternatives to, treatment for the ward, particularly if drastic or restrictive treatment is proposed.
54.25(1)(b)5. 5. Specific consultation with providers of health care and social services in making all necessary treatment decisions.
54.25(2) (2) Powers.
54.25(2)(a)(a) Rights and powers of a guardian of the person. A guardian of the person has only those rights and powers that the guardian is specifically authorized to exercise by statute, rule, or court order. Any other right or power is retained by the ward, unless the ward has been declared incompetent to exercise the right under par. (c) or the power has been transferred to the guardian under par. (d).
54.25(2)(b) (b) Rights retained by individuals determined incompetent. An individual determined incompetent retains the power to exercise all of the following rights, without consent of the guardian:
54.25(2)(b)1. 1. To have access to and communicate privately with the court and with governmental representatives, including the right to have input into plans for support services, the right to initiate grievances, including under state and federal law regarding resident or patient rights, and the right to participate in administrative hearings and court proceedings.
54.25(2)(b)2. 2. To have access to, communicate privately with, and retain legal counsel. Fees are to be paid from the income and assets of the ward, subject to court approval.
54.25(2)(b)3. 3. To have access to and communicate privately with representatives of the protection and advocacy agency under s. 51.62 and the board on aging and long-term care.
54.25(2)(b)4. 4. To protest a residential placement made under s. 55.055, and to be discharged from a residential placement unless the individual is protectively placed under ch. 55 or the requirements of s. 55.135 (1) are met.
54.25(2)(b)5. 5. To petition for court review of guardianship, protective services, protective placement, or commitment orders.
54.25(2)(b)6. 6. To give or withhold a consent reserved to the individual under ch. 51.
54.25(2)(b)7. 7. To exercise any other rights specifically reserved to the individual by statute or the constitutions of the state or the United States, including the rights to free speech, freedom of association, and the free exercise of religious expression.
54.25(2)(c) (c) Declaration of incompetence to exercise certain rights.
54.25(2)(c)1. 1. The court may, as part of a proceeding under s. 54.44 in which an individual is found incompetent and a guardian is appointed, declare that the individual has incapacity to exercise one or more of the following rights:
54.25(2)(c)1.a. a. The right to consent to marriage.
54.25(2)(c)1.b. b. The right to execute a will.
54.25(2)(c)1.c. c. The right to serve on a jury.
54.25(2)(c)1.d. d. The right to apply for an operator's license, a license issued under ch. 29, a license, certification, or permit issued under s. 89.06, 89.072, or 89.073, or a credential, as defined in s. 440.01 (2) (a), if the court finds that the individual is incapable of understanding the nature and risks of the licensed or credentialed activity, to the extent that engaging in the activity would pose a substantial risk of physical harm to the individual or others. A failure to find that an individual is incapable of applying for a license or credential is not a finding that the individual qualifies for the license or credential under applicable laws and rules.
54.25(2)(c)1.e. e. The right to consent to sterilization, if the court finds that the individual is incapable of understanding the nature, risk, and benefits of sterilization, after the nature, risk, and benefits have been presented in a form that the individual is most likely to understand.
54.25(2)(c)1.f. f. The right to consent to organ, tissue, or bone marrow donation.
54.25(2)(c)1.g. g. The right to register to vote or to vote in an election, if the court finds that the individual is incapable of understanding the objective of the elective process. Also, in accordance with s. 6.03 (3), any elector of a municipality may petition the circuit court for a determination that an individual residing in the 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 specified in this paragraph. If a petition is filed under this subd. 1. g., the finding of the court shall be limited to a determination as to voting eligibility. The appointment of a guardian is not required for an individual whose sole limitation is ineligibility to vote. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, 6.93, or 7.52 (5) with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) and any subsequent determination of the court shall be likewise communicated by the clerk of court.
54.25(2)(c)2. 2. Any finding under subd. 1. that an individual lacks evaluative capacity to exercise a right must be based on clear and convincing evidence. In the absence of such a finding, the right is retained by the individual.
54.25(2)(c)3. 3. If an individual is declared not competent to exercise a right under subd. 1. or 4., a guardian may not exercise the right or provide consent for exercise of the right on behalf of the individual. If the court finds with respect to a right listed under subd. 1. a., d., e., or f. that the individual is competent to exercise the right under some but not all circumstances, the court may order that the individual retains the right to exercise the right only with consent of the guardian of the person.
54.25(2)(c)4. 4. Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process. If the petition for a declaration of incompetence to vote is not part of a petition for guardianship, the same procedures shall apply as would apply for a petition for guardianship. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, or 6.93 with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) (a) and (c) and any subsequent determination of the court shall be likewise communicated by the clerk of court.
54.25(2)(d) (d) Guardian authority to exercise certain powers.
54.25(2)(d)1. 1. A court may authorize a guardian of the person to exercise all or part of any of the powers specified in subd. 2. only if it finds, by clear and convincing evidence, that the individual lacks evaluative capacity to exercise the power. The court shall authorize the guardian of the person to exercise only those powers that are necessary to provide for the individual's personal needs, safety, and rights and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention. The court may limit the authority of the guardian of the person with respect to any power to allow the individual to retain power to make decisions about which the individual is able effectively to receive and evaluate information and communicate decisions. When a court appoints a guardian for a minor, the guardian shall be granted care, custody, and control of the person of the minor.
54.25(2)(d)2. 2. All of the following are powers subject to subd. 1.:
54.25(2)(d)2.ab. ab. Except as provided under subd. 2. b., c., and d., and except for consent to psychiatric treatment and medication under ch. 51, and subject to any limitation under s. 54.46 (2) (b), the power to give an informed consent to the voluntary receipt by the guardian's ward of a medical examination, medication, including any appropriate psychotropic medication, and medical treatment that is in the ward's best interest, if the guardian has first made a good-faith attempt to discuss with the ward the voluntary receipt of the examination, medication, or treatment and if the ward does not protest. For purposes of this subd. 2. ab., “protest" means, with respect to the voluntary receipt of a medical examination, medication, including appropriate psychotropic medication, or medical treatment, make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of the medical examination, medication, or medical treatment. “Protest" does not mean a discernible negative response to a proposed method of administration of the medical examination, medication, or medical treatment. In determining whether a medical examination, medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication, or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.
54.25(2)(d)2.ac. ac. Except as provided under subd. 2. b., c., and d., and except for consent to psychiatric treatment and medication under ch. 51, and subject to any limitation under s. 54.46 (2) (b), the power to give informed consent, if in the ward's best interests, to the involuntary administration of a medical examination, medication other than psychotropic medication, and medical treatment that is in the ward's best interest. A guardian may consent to the involuntary administration of psychotropic medication only under a court order under s. 55.14. In determining whether involuntary administration of a medical examination, medication other than psychotropic medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication, or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.
54.25(2)(d)2.b. b. Unless it can be shown by clear and convincing evidence that the ward would never have consented to research participation, the power to authorize the ward's participation in an accredited or certified research project if the research might help the ward; or if the research might not help the ward but might help others, and the research involves no more than minimal risk of harm to the ward.
54.25(2)(d)2.c. c. The power to authorize the ward's participation in research that might not help the ward but might help others even if the research involves greater than minimal risk of harm to the ward if the guardian can establish by clear and convincing evidence that the ward would have elected to participate in such research; and the proposed research was reviewed and approved by the research and human rights committee of the institution conducting the research. The committee shall have determined that the research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the federal regulations for research involving human subjects for federally supported projects.
54.25(2)(d)2.d. d. Unless it can be shown by clear and convincing evidence that the ward would never have consented to any experimental treatment, the power to consent to experimental treatment if the court finds that the ward's mental or physical status presents a life-threatening condition; the proposed experimental treatment may be a life saving remedy; all other reasonable traditional alternatives have been exhausted; 2 examining physicians have recommended the treatment; and, in the court's judgment, the proposed experimental treatment is in the ward's best interests.
54.25(2)(d)2.e. e. The power to give informed consent to receipt by the ward of social and supported living services.
54.25(2)(d)2.f. f. The power to give informed consent to release of confidential records other than court, treatment, and patient health care records and to redisclosure as appropriate.
54.25(2)(d)2.g. g. The power to make decisions related to mobility and travel.
54.25(2)(d)2.i. i. The power to choose providers of medical, social, and supported living services.
54.25(2)(d)2.j. j. The power to make decisions regarding educational and vocational placement and support services or employment.
54.25(2)(d)2.k. k. The power to make decisions regarding initiating a petition for the termination of marriage.
54.25(2)(d)2.L. L. The power to receive all notices on behalf of the ward.
54.25(2)(d)2.m. m. The power to act in all proceedings as an advocate of the ward, except the power to enter into a contract that binds the ward or the ward's property or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the estate.
54.25(2)(d)2.n. n. The power to apply for protective placement under s. 55.075 or for commitment under s. 51.20 or 51.45 (13) for the ward.
54.25(2)(d)2.o. o. The power to have custody of the ward, if an adult, and the power to have care, custody, and control of the ward, if a minor.
54.25(2)(d)2.p. p. Any other power the court may specifically identify.
54.25(2)(d)3. 3. In exercising powers and duties delegated to the guardian of the person under this paragraph, the guardian of the person shall, consistent with meeting the individual's essential requirements for health and safety and protecting the individual from abuse, exploitation, and neglect, do all of the following:
54.25(2)(d)3.a. a. Place the least possible restriction on the individual's personal liberty and exercise of constitutional and statutory rights, and promote the greatest possible integration of the individual into his or her community.
54.25(2)(d)3.b. b. Make diligent efforts to identify and honor the individual's preferences with respect to choice of place of living, personal liberty and mobility, choice of associates, communication with others, personal privacy, and choices related to sexual expression and procreation. In making a decision to act contrary to the individual's expressed wishes, the guardian shall take into account the individual's understanding of the nature and consequences of the decision, the level of risk involved, the value of the opportunity for the individual to develop decision-making skills, and the need of the individual for wider experience.
54.25(2)(d)3.c. c. Consider whether the ward's estate is sufficient to pay for the needed services.
54.25 History History: 2005 a. 264 s. 221; 2005 a. 387 ss. 100, 476, 511, 513, 514; 2005 a. 451 s. 177; 2007 a. 45, 96; 2015 a. 55, 179.
54.25 Annotation The guardian of an incompetent person in a persistent vegetative state may consent to the withdrawal or withholding of life-sustaining medical treatment without prior court approval if the guardian determines that the withdrawal or withholding is in the ward's best interests. In Matter of Guardianship of L.W. 167 Wis. 2d 53, 482 N.W.2d 60 (1992).
54.25 Annotation The guardian of a person who became incompetent after voluntarily entering a nursing home with 16 or more beds may not consent to the person's continued residence in the home. Upon the appointment of a guardian, the court must hold a protective placement hearing. Guardianship of Agnes T. 189 Wis. 2d 520, 525 N.W.2d 268 (1995). See also s. 54.34 (2m).
54.25 Annotation The holding in Guardianship of L.W. does not extend to persons who are not in a persistent vegetative state. However, if the guardian of the person not in a persistent vegetative state demonstrates by a clear statement of the ward made while competent that withdrawal of medical treatment is desired, it is in the patient's best interest to honor those wishes. Spahn v. Eiseberg, 210 Wis. 2d 557, 563 N.W.2d 485 (1997), 95-2719.
54.25 Annotation 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.
54.25 Note NOTE: 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.
subch. IV of ch. 54 SUBCHAPTER IV
PROCEDURES
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 367 and all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 14, 2018. Published and certified under s. 35.18. Changes effective after December 14, 2018 are designated by NOTES. (Published 12-14-18)