Amendment SSA1-SB391

SB391-SSA1,63,7 c. The individual is unable to prevent financial exploitation.

SB391-SSA1,63,11 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.

SB391-SSA1,63,14 (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.

SB391-SSA1,63,18 (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:

SB391-SSA1,63,19 1. The report of the guardian ad litem, as required in s. 54.40 (4).

SB391-SSA1,63,22 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.

SB391-SSA1,64,2 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.

SB391-SSA1,64,6 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.

SB391-SSA1,64,8 5. The preferences, desires, and values of the individual with regard to personal needs or property management.

SB391-SSA1,64,10 6. The nature and extent of the individual's care and treatment needs and property and financial affairs.

SB391-SSA1,64,12 7. Whether the individual's situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.

SB391-SSA1,64,14 8. Whether the individual can adequately understand and appreciate the nature and consequences of his or her impairment.

SB391-SSA1,64,15 9. The individual's management of the activities of daily living.

SB391-SSA1,64,18 10. The individual's understanding and appreciation of the nature and consequences of any inability he or she may have with regard to personal needs or property management.

SB391-SSA1,64,20 11. 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.

SB391-SSA1,64,21 12. Any physical illness of the individual and the prognosis of the individual.

SB391-SSA1,64,24 13. Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.

SB391-SSA1,65,2 14. Any medication with which the individual is being treated and the medication's effect on the individual's behavior, cognition, and judgment.

SB391-SSA1,65,5 15. 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.

SB391-SSA1,65,6 16. Other relevant evidence.

SB391-SSA1,65,14 (d) Before 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 determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual's competency to exercise legal rights and may obtain assistance in the manner provided in s. 55.06 (8) whether or not protective placement is made.

SB391-SSA1,65,19 (e) In appointing a guardian under this subsection, the court shall authorize the guardian to exercise only those powers under ss. 54.18, 54.20, and 54.25 (2) (d) 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.

SB391-SSA1,65,23 (4) If the court appoints both a guardian of the person and a guardian of the estate for an individual other than an individual found to be a spendthrift, the court may appoint separate persons to be guardian of the person and of the estate, or may appoint one person to act as both.

SB391-SSA1,65,25 (5) The court may appoint coguardians of the person or coguardians of the estate, subject to any conditions that the court imposes.

SB391-SSA1,66,2 54.12 (1) (e) Make payment to the agent under a durable power of attorney of the ward.

SB391-SSA1,66,3 (f) Make payment to the trustee of any trust created for the benefit of the ward.

SB391-SSA1,66,6 subchapter III nomination of guardian; powers and duties; limitations

SB391-SSA1,66,7 54.15 (1m) Potential conflicts of interest.

SB391-SSA1,66,11 (2) 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.

SB391-SSA1,66,15 (3) 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.

SB391-SSA1,66,16 (4) Person nominated by proposed ward.

SB391-SSA1,66,19 (8) Statement of acts by proposed guardian. (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:

SB391-SSA1,66,21 1. The proposed guardian is currently charged with or has been convicted of a crime, as defined in s. 939.12.

SB391-SSA1,66,23 2. The proposed guardian has filed for or received protection under the federal bankruptcy laws.

SB391-SSA1,67,3 3. Any license, certificate, permit, or registration of the proposed guardian that is required under chs. 440 to 480 or by the laws of another state for the practice of a profession or occupation has been suspended or revoked.

SB391-SSA1,67,4 4. The proposed guardian is listed under s. 146.40 (4g) (a) 2.

SB391-SSA1,67,7 (b) If par. (a) 1., 2., 3., 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., 2., 3., or 4.

SB391-SSA1,67,14 54.18 General duties and powers of guardian; limitations; immunity. (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.

SB391-SSA1,67,15 (2) A guardian shall do all of the following:

SB391-SSA1,67,17 (a) 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.

SB391-SSA1,67,20 (b) 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 and 51.61.

SB391-SSA1,67,22 (c) Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.

SB391-SSA1,67,23 (d) Notify the court of any change of address of the guardian or ward.

SB391-SSA1,67,24 (3) No guardian may do any of the following:

SB391-SSA1,68,2 (b) 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.

SB391-SSA1,68,10 54.19 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:

SB391-SSA1,68,12 (2) 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 and 881.

SB391-SSA1,68,15 (3) 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.

SB391-SSA1,68,17 (4) Use the ward's income and property to maintain and support the ward and any dependents of the ward.

SB391-SSA1,68,18 (5) Prepare and file an annual account as specified in s. 54.62.

SB391-SSA1,68,20 (6) At the termination of the guardianship, deliver the ward's assets to the persons entitled to them.

SB391-SSA1,68,25 (8) 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 an incompetent, and the name, address, and telephone number of the ward's guardian and any surety on the guardian's bond.

SB391-SSA1,69,3 (9) 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.

SB391-SSA1,69,4 (10) Perform any other duty required by the court order.

SB391-SSA1,69,7 54.20 Powers of guardian of the estate. (1) (a) 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.

SB391-SSA1,69,9 (b) The ward's personal preferences and desires with regard to managing his or her activities of daily living.

SB391-SSA1,69,10 (c) The least restrictive form of intervention for the ward.

SB391-SSA1,69,14 (2) 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:

SB391-SSA1,69,16 (a) Make gifts, under the terms, including the frequency, amount, and donees specified by the court in approval of a petition under s. 54.21.

SB391-SSA1,69,18 (c) Establish a trust as specified under 42 USC 1396p (d) (4) and transfer assets into the trust.

SB391-SSA1,69,21 (d) 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.

SB391-SSA1,69,23 (e) Ascertain, establish, and exercise any rights available to the ward under a retirement plan or account.

SB391-SSA1,69,25 (f) Exercise any elective rights that accrue to the ward as the result of the death of the ward's spouse or parent.

SB391-SSA1,70,2 (g) 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.

SB391-SSA1,70,4 (i) Provide support for an individual whom the ward is not legally obligated to support.

SB391-SSA1,70,7 (j) 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.

SB391-SSA1,70,10 (3) 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:

SB391-SSA1,70,12 (a) Provide support from the ward's income and assets for an individual whom the ward is legally obligated to support.

SB391-SSA1,70,14 (b) Enter into a contract, other than a contract under sub. (2) or that is otherwise prohibited under this chapter.

SB391-SSA1,70,15 (c) Exercise options of the ward to purchase securities or other property.

SB391-SSA1,70,16 (d) Authorize access to or release of the ward's confidential financial records.

SB391-SSA1,70,17 (e) Apply for public and private benefits.

SB391-SSA1,70,19 (k) 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.

SB391-SSA1,70,20 54.21 Petition to transfer ward's assets to another. (1) In this section:

SB391-SSA1,70,21 (a) "Disabled" has the meaning given in s. 49.468 (1) (a) 1.

SB391-SSA1,70,22 (b) "Other individual" means any of the following:

SB391-SSA1,70,23 1. The ward's spouse, if any.

SB391-SSA1,70,25 2. The ward's close friend, if any, and if the close friend meets the requirements of s. 50.94 (3) (e) 1. and 2.

SB391-SSA1,71,1 3. The guardian ad litem of the ward's minor child, if any.

SB391-SSA1,71,2 4. The ward's disabled child, if any.

SB391-SSA1,71,4 5. Any of the ward's siblings who has an ownership interest in property that is co-owned with the ward.

SB391-SSA1,71,6 6. Any of the ward's children who provides care for the ward as specified in 42 USC 1396p (c) (2) (A) iv.

SB391-SSA1,71,8 (c) "Will, trust, or other instrument" includes a revocable or irrevocable trust, a durable power of attorney, or a marital property agreement.

SB391-SSA1,71,12 (2) A guardian or other individual who seeks an order authorizing and directing the guardian of the estate to transfer any of a ward's income or assets to or for the benefit of any person shall submit to the court a petition that specifies all of the following:

SB391-SSA1,71,15 (a) Whether a proceeding by anyone seeking this authority with respect to the ward's income and assets was previously commenced and, if so, a description of the nature of the proceeding and the disposition made of it.

SB391-SSA1,71,22 (b) The amount and nature of the ward's financial obligations, including moneys currently and prospectively required to provide for the ward's maintenance, support, and well-being and to provide for others dependent upon the ward for support, regardless of whether the ward is legally obligated to provide the support. If the petitioner has access to a copy of a court order or written agreement that specifies support obligations of the ward, the petitioner shall attach the copy to the petition.

SB391-SSA1,71,24 (c) The income and assets of the ward that is the subject of the petition, the proposed disposition of the property, and the reasons for the disposition.

SB391-SSA1,71,25 (d) The wishes, if ascertainable, of the ward.

SB391-SSA1,72,2 (e) As specified in sub. (3), whether the ward has previously executed a will or similar instrument.