54.64 54.64 Review of incompetency and termination of guardianship.
54.64(1)(1) Duration. Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the ward, until terminated by the court, or as provided under sub. (3) or (4).
54.64(2) (2)Review and modification.
54.64(2)(a)(a) A ward who is 18 years of age or older, any person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency, to have the guardian discharged and a new guardian appointed, or to have the guardianship limited and specific rights restored. The petition may be filed at any time after 180 days after any previous hearing under s. 54.44, or at any time if the court determines that exigent circumstances, including presentation of new evidence, require a review. If a petition is filed, the court shall do all of the following:
54.64(2)(a)1. 1. Appoint a guardian ad litem.
54.64(2)(a)2. 2. Fix a time and place for hearing.
54.64(2)(a)3. 3. Designate the persons who are entitled to notice of the hearing and designate the manner in which the notice shall be given.
54.64(2)(a)4. 4. Conduct a hearing at which the ward is present and has the right to a jury trial, if demanded.
54.64(2)(b) (b) The ward has the right to counsel for purposes of the hearing under par. (a). Notwithstanding any finding of incompetence for the ward, the ward may retain and contract for the payment of reasonable fees to an attorney, the selection of whom is subject to court approval, in connection with proceedings involving review of the terms and conditions of the guardianship, including the question of incompetence. The court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, the county of jurisdiction for the guardianship shall provide counsel at the county's expense.
54.64(2)(c) (c) After a hearing under par. (a) or on its own motion, a court may terminate or modify the guardianship, including restoring certain of the ward's rights.
54.64(2)(d) (d) The court shall review and may terminate the guardianship of the person of an individual found incompetent upon marriage to any person who is not subject to a guardianship.
54.64(3) (3)Termination of guardianship of the person. A guardianship of the person shall terminate if any of the following occurs:
54.64(3)(a) (a) The court adjudicates a ward who was formerly found to be incompetent to be no longer incompetent or terminates the guardianship under sub. (2) (d).
54.64(3)(b) (b) The ward changes residence from this state to another state and a guardian is appointed in the new state of residence.
54.64(3)(c) (c) A formerly minor ward attains age 18, unless the guardianship was ordered on the grounds of incompetency.
54.64(3)(d) (d) A minor ward whose guardianship was not ordered on the grounds of incompetency marries.
54.64(3)(e) (e) The ward dies.
54.64(4) (4)Termination of guardianship of the estate. A guardianship of the estate shall terminate if any of the following occurs:
54.64(4)(a) (a) The court adjudicates a ward who was formerly found to be incompetent to be no longer incompetent or a ward who was formerly found to be a spendthrift to be capable of handling his or her income and assets.
54.64(4)(b) (b) The ward changes residence from this state to another state and a guardian is appointed in the new state of residence.
54.64(4)(c) (c) A formerly minor ward attains age 18.
54.64(4)(d) (d) A minor ward whose guardianship was not ordered on the grounds of incompetency marries and the court approves the termination.
54.64(4)(e) (e) A ward dies, except when the estate can be settled as provided by s. 54.66 (4).
54.64(5) (5)Depleted guardianship. If a court determines that the income and assets of a ward do not exceed the amount specified in s. 867.03 (1g) and are reduced to a point where it is to the advantage of the ward to dispense with the guardianship, the court may do one of the following:
54.64(5)(a) (a) Terminate the guardianship and order disposition of the remaining assets as provided by s. 54.12 (1). The court, as a part of the disposition, may order the guardian to make appropriate financial arrangements for the burial or other disposition of the remains of the ward.
54.64(5)(b) (b) Continue the guardianship, but waive requirements for a bond for the guardian and waive or require an accounting by the guardian.
54.64(6) (6)Delivery of property to guardian in another state. When property of a nonresident ward is in the possession of or due from a guardian or personal representative appointed in this state, the appointing court may order the property delivered to the guardian appointed in the state of the nonresident ward after a verified petition, accompanied by a copy of the nonresident guardian's appointment and bond, authenticated so as to be admissible in evidence, is filed with the court and after 10 days' notice is provided to the resident guardian or personal representative. The petition shall be denied if granting it appears to be against the interests of the ward. Any receipt obtained from the nonresident guardian for the property so delivered shall be taken and filed with the other papers in the proceeding, and a certified copy of the receipt shall be sent to the court that appointed the nonresident guardian.
54.64 History History: 2005 a. 387 ss. 100, 437 to 446, 449, 499, 500, 501, 503, 504; 2007 a. 45.
54.66 54.66 Final accounts.
54.66(1)(1) Render final account. If a court terminates a guardianship, or a guardian resigns, is removed, or dies, the guardian or the guardian's personal representative or special administrator shall promptly render a final account to the court and to the ward or former ward, the successor guardian, or the deceased ward's personal representative or special administrator, as appropriate. If the ward dies and the guardian and the deceased ward's personal representative or special administrator are the same person, the deceased ward's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the ward's estate.
54.66(2) (2)Small estates. The guardian of a ward with a small estate, as specified in s. 54.62 (3) (a), need not file a final account, unless otherwise ordered by the court. The guardian shall instead provide the court with a list of the ward's assets that remain at the time the guardianship terminates, including at the death of the ward.
54.66(3) (3)Discharge. After approving the final account and after the guardian has filed proper receipts, the court shall discharge the guardian and release the guardian's bond.
54.66(4) (4)Summary settlement of small estates. If a ward dies leaving an estate that can be settled summarily under s. 867.01, the court may approve the settlement and distribution by the guardian under the procedures of s. 867.01 without appointing a personal representative.
54.66 History History: 2005 a. 387 ss. 100, 430, 447, 448.
54.68 54.68 Review of conduct of guardian.
54.68(1) (1) Continuing jurisdiction of court. The court that appointed the guardian or that granted a petition for acceptance and receipt of a foreign guardianship has continuing jurisdiction over the guardian. Within a reasonable period of time after granting a petition for receipt and acceptance of a foreign guardianship under s. 54.46 (1r), the court shall review the provisions of the guardianship and, as part of its review, shall inform the guardian and ward of services that may be available to the ward.
54.68(2) (2)Cause for court action against a guardian. Any of the following, if committed by a guardian with respect to a ward or the ward's income or assets, constitutes cause for a remedy of the court under sub. (4):
54.68(2)(a) (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.
54.68(2)(b) (b) Committing fraud, waste, or mismanagement.
54.68(2)(c) (c) Abusing or neglecting the ward or knowingly permitting others to do so.
54.68(2)(d) (d) Engaging in self-dealing.
54.68(2)(e) (e) Failing to provide adequately for the personal needs of the ward from the ward's available assets and income, including any available public benefits.
54.68(2)(f) (f) Failing to exercise due diligence and reasonable care in assuring that the ward's personal needs are being met in the least restrictive environment consistent with the ward's needs and incapacities.
54.68(2)(g) (g) Failing to act in the best interests of the ward.
54.68(2)(h) (h) Failing to disclose conviction for a crime that would have prevented appointment of the person as guardian.
54.68(2)(i) (i) Failing to disclose that the guardian is listed under s. 146.40 (4g) (a) 2.
54.68(2)(j) (j) Other than as provided in pars. (a) to (i), failing to perform any duties of a guardian or performing acts prohibited to a guardian as specified in ss. 54.18, 54.19, 54.20, 54.22, 54.25, and 54.62.
54.68(3) (3)Procedure. Upon the filing of a petition for review of the conduct of a guardian, the court shall hold a hearing in not less than 10, nor more than 60, days and shall order that the petitioner provide notice of the hearing to the ward, the guardian, and any other persons as determined by the court. The court may authorize use by the petitioner of any of the methods of discovery specified in ch. 804 in support of the petition to review conduct of the guardian.
54.68(4) (4)Remedies of the court. If petitioned by any party or on the court's own motion and after finding cause as specified in sub. (2), a court may do any of the following:
54.68(4)(a) (a) Order the guardian to file an inventory or other report or account required of the guardian.
54.68(4)(b) (b) Require the guardian to reimburse the ward or, if deceased, the ward's estate for losses incurred as the result of the guardian's breach of a duty to the ward.
54.68(4)(c) (c) Impose a forfeiture of up to $10,000 on the guardian, or deny compensation for the guardian or both.
54.68(4)(d) (d) Remove the guardian.
54.68(4)(e) (e) Enter any other order that may be necessary or appropriate to compel the guardian to act in the best interests of the ward or to otherwise carry out the guardian's duties.
54.68(5) (5)Removal of paid guardian. The court may remove a paid guardian if changed circumstances indicate that a previously unavailable volunteer guardian is available to serve and that the change would be in the best interests of the ward.
54.68(6) (6)Fees and costs in proceedings. In any proceeding under sub. (2) or (5), all of the following apply:
54.68(6)(a) (a) The court may require the guardian to pay personally any costs of the proceeding, including costs of service and attorney fees.
54.68(6)(b) (b) Notwithstanding a finding of incompetence, a ward who is petitioning the court under sub. (2) may retain legal counsel, the selection of whom is subject to court approval, and contract for the payment of fees, regardless of whether or not the guardian consents or whether or not the court finds cause under sub. (2).
54.68 History History: 2005 a. 387.
54.72 54.72 Guardian compensation and reimbursement. A guardian of the person or a guardian of the estate is entitled to compensation and to reimbursement for expenses as follows:
54.72(1) (1)Compensation.
54.72(1)(a)(a) Subject to the court's approval, as determined under par. (b), a guardian shall receive reasonable compensation for the guardian's services.
54.72(1)(b) (b) The court shall use all of the following factors in deciding whether compensation for a guardian is just and reasonable:
54.72(1)(b)1. 1. The reasonableness of the services rendered.
54.72(1)(b)2. 2. The fair market value of the services rendered.
54.72(1)(b)3. 3. Any conflict of interest of the guardian.
54.72(1)(b)4. 4. The availability of another to provide the services.
54.72(1)(b)5. 5. The value and nature of the ward's assets and income, including the sources of the ward's income.
54.72(1)(b)6. 6. Whether the ward's basic needs are being met.
54.72(1)(b)7. 7. The hourly or other rate proposed by the guardian for the services.
54.72(1)(c) (c) The amount of the compensation may be determined on an hourly basis, as a monthly stipend, or on any other basis that the court determines is reasonable under the circumstances. The court may establish the amount or basis for computing the guardian's compensation at the time of the guardian's initial appointment.
54.72(2) (2)Reimbursement of expenses. The guardian shall be reimbursed for the amount of the guardian's reasonable expenses incurred in the execution of the guardian's duties, including necessary compensation paid to an attorney, an accountant, a broker, and other agents or service providers.
54.72(3) (3)When court approval required. A court must approve compensation and reimbursement of expenses before payment to the guardian is made, but court approval need not be obtained before charges are incurred.
54.72 History History: 2005 a. 387.
54.72 Annotation When a temporary guardian committed a clear breach of trust, the trial court had sufficient basis to award the temporary guardian no compensation. Yamat v. Verma L.B. 214 Wis. 2d 207, 571 N.W.2d 860 (Ct. App. 1997), 96-2313.
54.72 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.
54.74 54.74 Compensation of guardian ad litem. Unless the court otherwise directs or unless a petition to the court under this chapter is dismissed, the court shall order reasonable compensation to be paid to a guardian ad litem appointed under s. 54.40 (1) from the ward's income or assets, if sufficient, or, if insufficient, by the county of venue. If a petition to the court under this chapter is dismissed, the court shall order the petitioner to pay the compensation of the guardian ad litem. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to a private attorney under s. 977.08 (4m) (b). The guardian ad litem shall receive compensation for performing all duties required under s. 54.40 (4) and for any other acts that are approved by the court and are reasonably necessary to promote the ward's best interests.
54.74 History History: 2005 a. 387 s. 498.
54.74 Annotation The court's power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1, 531 N.W.2d 32 (1995).
54.74 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.
54.75 54.75 Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 51.30 or 55.22 or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.
54.75 History History: 2005 a. 264 s. 211; 2005 a. 387 s. 471; 2007 a. 45.
54.75 Annotation Sub. (6) [now this section] requires the closing only of documents filed with the register in probate with respect to ch. 880 [now ch. 54] proceedings. 67 Atty. Gen. 130.
54.75 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. VI of ch. 54 SUBCHAPTER VI
VOLUNTARY PROCEEDINGS;
CONSERVATORS
54.76 54.76 Conservator; appointment; duties and powers; termination.
54.76(1)(1) Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her assets or income may voluntarily apply to the circuit court of the county of his or her residence for appointment of a conservator of the estate. Upon receipt of the application, the court shall fix a time and place for hearing the application and may direct to whom, including presumptive heirs, and in what manner notice of the hearing shall be given to a potential recipient of the notice, unless the potential recipient has waived receipt. The fee prescribed in s. 814.66 (1) (b) shall be paid at the time of the filing of the inventory or other documents setting forth the value of the assets and income.
54.76(2) (2) At the hearing for appointment of a conservator, the applicant shall be personally examined by the court and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated and any proposed standby conservator are suitable, the court may appoint the nominee as conservator and, if applicable, designate the proposed standby conservator as standby conservator and issue letters of conservatorship to the nominee after he or she files a bond in the amount fixed by the court.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Oct. 4, 2014. Published and certified under s. 35.18. Changes effective after Oct. 4, 2014 are designated by NOTES. (Published 10-4-14)