subchapter I
definitions
54.01 Definitions. In subchs I to VI:
(1) "Activities of daily living" means activities relating to the performance of self care, work, and leisure activities, including dressing, eating, grooming, mobility, and object manipulation.
(3) "Conservator" means a person who is appointed by a court at an individual's request under s. 54.76 (2) to manage the estate of the individual.
(4) "Court" means the circuit court or judge assigned to exercise probate jurisdiction or the assignee of the judge under s. 757.68 (4m) or 851.73 (1) (g) who is assigned relevant authority.
(5) "Decedent" means the deceased individual whose estate is subject to administration.
(6) "Degenerative brain disorder" means the loss or dysfunction of an individual's brain cells to the extent that he or she is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.
(7) "Depository account" has the meaning given in s. 815.18 (2) (e).
(9) "Durable power of attorney" has the meaning given in s. 243.07 (1) (a).
(9g) "Foreign court" means a court of a foreign state having competent jurisdiction of a foreign ward.
(9i) "Foreign guardian" means a guardian appointed by a foreign court for a foreign ward.
(9k) "Foreign guardianship" means a guardianship issued by a foreign court.
(9m) "Foreign state" means a state other than this state.
(9p) "Foreign ward" means an individual who has been found by a foreign court to be incompetent or a spendthrift and who is subject to a guardianship order or related order in a foreign state.
(11) "Guardian of the estate" means a guardian appointed to comply with the duties specified in s. 54.19 and to exercise any of the powers specified in s. 54.20.
(12) "Guardian of the person" means a guardian appointed to comply with the duties specified in s. 54.25 (1) and to exercise any of the powers specified in s. 54.25 (2).
(13) "Heir" means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.37 (10) and (11) when the decedent was a member of the Wisconsin Veterans Home at King or at the facilities operated by the department of veterans affairs under s. 45.385 at the time of the decedent's death.
(14) "Impairment" means a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.
(15) "Incapacity" means the inability of an individual effectively to receive and evaluate information or to make or communicate a decision with respect to the exercise of a right or power.
(16) "Individual found incompetent" means an individual who has been adjudicated by a court as meeting the requirements of s. 54.10 (3).
(17) "Interested person" means any of the following:
(a) For purposes of a petition for guardianship, any of the following:
1. The proposed ward, if he or she has attained 14 years of age.
2. The spouse or adult child of the proposed ward, or the parent of a proposed ward who is a minor.
3. For a proposed ward who has no spouse, child, or parent, an heir, as defined in s. 851.09, of the proposed ward that may be reasonably ascertained with due diligence.
4. Any individual who is nominated as guardian, any individual who is appointed to act as guardian or fiduciary for the proposed ward by a court of any state, any trustee for a trust established by or for the proposed ward, any person appointed as agent under a power of attorney for health care, as defined in s. 155.01 (4), or any person appointed as agent under a durable power of attorney under ch. 243.
5. If the proposed ward is a minor, the individual who has exercised principal responsibility for the care and custody of the proposed ward during the period of 60 consecutive days immediately before the filing of the petition.
6. If the proposed ward is a minor and has no living parent, any individual nominated to act as fiduciary for the minor in a will or other written instrument that was executed by a parent of the minor.
7. If the proposed ward is receiving moneys paid, or if moneys are payable, by the federal department of veterans affairs, a representative of the federal department of veterans affairs, or, if the proposed ward is receiving moneys paid, or if moneys are payable, by the state department of veterans affairs, a representative of the state department of veterans affairs.
8. If the proposed ward is receiving long-term support services or similar public benefits, the county department of human services or social services that is providing the services or benefits.
9. The corporation counsel of the county in which the petition is filed and, if the petition is filed in a county other than the county of the proposed ward's residence, the corporation counsel of the county of the proposed ward's residence.
10. Any other person required by the court.
(b) For purposes of proceedings subsequent to an order for guardianship, any of the following:
1. The guardian.
2. The spouse or adult child of the ward or the parent of a minor ward.
3. The county of venue, through the county's corporation counsel, if the county has an interest.
4. Any person appointed as agent under a durable power of attorney under ch. 243, unless the agency is revoked or terminated by a court.
5. Any other individual that the court may require, including any fiduciary that the court may designate.
(18) "Least restrictive" means that which places the least possible restriction on personal liberty and the exercise of rights and that promotes the greatest possible integration of an individual into his or her community that is consistent with meeting his or her essential requirements for health, safety, habilitation, treatment, and recovery and protecting him or her from abuse, exploitation, and neglect.
(19) "Meet the essential requirements for physical health or safety" means perform those actions necessary to provide the health care, food, shelter, clothes, personal hygiene, and other care without which serious physical injury or illness will likely occur.
(21) "Mortgage" means any agreement or arrangement in which property is used as security.
(23) "Personal representative" means any individual to whom letters to administer a decedent's estate have been granted by the court or by the probate registrar under ch. 865, but does not include a special administrator.
(24) "Physician" has the meaning given in s. 448.01 (5).
(25) "Property" means any interest, legal or equitable, in real or personal property, without distinction as to kind, including money, rights of a beneficiary under a contractual arrangement, choses in action, and anything else that may be the subject of ownership.
(26) "Proposed ward" means a minor, an individual alleged to be incompetent, or an alleged spendthrift, for whom a petition for guardianship is filed.
(27) "Psychologist" means a licensed psychologist, as defined in s. 455.01 (4).
(28) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.
(29) "Sale" includes an option or agreement to transfer whether the consideration is cash or credit. It includes exchange, partition, and settlement of title disputes. The intent of this subsection is to extend and not to limit the meaning of "sale."
(30) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
(32) "Standby conservator" means an individual designated by the court under s. 54.76 (2) whose appointment as conservator becomes effective immediately upon the death, resignation, or court's removal of the initially appointed conservator, or if the initially appointed conservator is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.
(33) "Standby guardian" means an individual designated by the court under s. 54.52 (2) whose appointment as guardian becomes effective immediately upon the death, resignation, or court's removal of the initially appointed guardian, or if the initially appointed guardian is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.
(34) "Successor conservator" means an individual appointed under s. 54.76 (9).
(35) "Successor guardian" means an individual appointed under s. 54.54.
(36) "Surviving spouse" means an individual who was married to the decedent at the time of the decedent's death. "Surviving spouse" does not include any of the following:
(a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless the 2 subsequently participated in a marriage ceremony purporting to marry each other or they subsequently held themselves out as husband and wife.
(b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a 3rd individual.
(c) An individual who was party to a valid proceeding concluded by an order purporting to terminate all property rights based on the marriage with the decedent.
(38) "Will" includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2). "Will" does not include a copy, unless the copy has been proven as a will under s. 856.17, but "will" does include a properly executed duplicate original.
subchapter II
appointment of guardian
54.10 Appointment of guardian. (1) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor.
(2) (a) A court may appoint a guardian of the estate for an individual if the court finds by clear and convincing evidence that the individual is aged at least 18 years and is a spendthrift.
(b) In appointing a guardian of the estate under this subsection or determining what powers are appropriate for the guardian of the estate to exercise under s. 54.18 or 54.20, the court shall consider all of the following:
1. The report of the guardian ad litem, as required in s. 54.40 (4).
2. The medical or psychological report provided under s. 54.36 (1) and any additional medical, psychological, or other evaluation ordered by the court under s. 54.40 (4) (e) or offered by a party and received by the court.
3. Whether other reliable resources are available to provide for the individual's personal needs or property management, and whether appointment of a guardian of the estate is the least restrictive means to provide for the individual's need for a substitute decision maker.
4. The preferences, desires, and values of the individual with regard to personal needs or property management.
5. The nature and extent of the individual's care and treatment needs and property and financial affairs.
6. Whether the individual's situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
7. The extent of the demands placed on the individual by his or her personal needs and by the nature and extent of his or her property and financial affairs.
8. Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.
9. Whether the effect on the individual's evaluative capacity is likely to be temporary or long term, and whether the effect may be ameliorated by appropriate treatment.
10. Other relevant evidence.
(c) Before appointing a guardian of the estate under this subsection or determining what powers are appropriate for the guardian of the estate to exercise under s. 54.18 or 54.20, the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual.
(d) In appointing a guardian of the estate under this subsection, the court shall authorize the guardian of the estate to exercise only those powers under ss. 54.18 and 54.20 that are necessary to provide for the individual's personal needs and property management and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention.
(3) (a) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual based on a finding that the individual is incompetent only if the court finds by clear and convincing evidence that all of the following are true:
1. The individual is aged at least 17 years and 9 months.
2. For purposes of appointment of a guardian of the person, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.
3. For purposes of appointment of a guardian of the estate, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that any of the following applies:
a. The individual has property that will be dissipated in whole or in part.
b. The individual is unable to provide for his or her support.
c. The individual is unable to prevent financial exploitation.
4. The individual's need for assistance in decision making or communication is unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, or other means that the individual will accept.
(b) Unless the proposed ward is unable to communicate decisions effectively in any way, the determination under par. (a) may not be based on mere old age, eccentricity, poor judgment, or physical disability.
(c) In appointing a guardian under this subsection, declaring incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the court shall consider all of the following:
1. The report of the guardian ad litem, as required in s. 54.40 (4).
2. The medical or psychological report provided under s. 54.36 (1) and any additional medical, psychological, or other evaluation ordered by the court under s. 54.40 (4) (e) or offered by a party and received by the court.
3. Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship, including by executing a durable power of attorney under ch. 243, a power of attorney for health care, as defined in s. 155.01 (10), a trust, or a jointly held account.
4. Whether other reliable resources are available to provide for the individual's personal needs or property management, and whether appointment of a guardian is the least restrictive means to provide for the individual's need for a substitute decision maker.
5. The preferences, desires, and values of the individual with regard to personal needs or property management.
