Amendment SSA1-SB391

SB391-SSA1,80,20 i. The power to choose providers of medical, social, and supported living services.

SB391-SSA1,80,22 j. The power to make decisions regarding educational and vocational placement and support services or employment.

SB391-SSA1,80,24 k. The power to make decisions regarding initiating a petition for the termination of marriage.

SB391-SSA1,80,25 L. The power to receive all notices on behalf of the ward.

SB391-SSA1,81,4 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.

SB391-SSA1,81,6 n. The power to apply for protective placement under s. 55.06 or for commitment under s. 51.20 or 51.45 (13) for the ward.

SB391-SSA1,81,8 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.

SB391-SSA1,81,9 p. Any other power the court may specifically identify.

SB391-SSA1,81,13 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:

SB391-SSA1,81,16 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.

SB391-SSA1,81,24 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.

SB391-SSA1,82,2 c. Consider whether the ward's estate is sufficient to pay for the needed services.

SB391-SSA1,82,4 subchapter IV procedures

SB391-SSA1,82,5 54.30 Jurisdiction and venue.

SB391-SSA1,82,7 (3) (b) 1. An interested person shall file a petition for change of venue in the county in which venue for the guardianship currently lies.

SB391-SSA1,82,11 2. The person filing the petition under subd. 1. shall give notice to the corporation counsel of the county in which venue for the guardianship currently lies and to the register in probate and corporation counsel for the county to which change of venue is sought.

SB391-SSA1,82,20 3. If no objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies may enter an order changing venue. If objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies shall set a date for a hearing within 7 days after the objection is made and shall give notice of the hearing to the corporation counsel of that county and to the corporation counsel and register in probate of the county to which change of venue is sought.

SB391-SSA1,82,22 54.34 (1) (k) Whether the proposed ward is a recipient of a public benefit, including medical assistance or a benefit under s. 46.27.

SB391-SSA1,82,24 (L) The agent under any current, valid power of attorney for health care or durable power of attorney that the proposed ward has executed.

SB391-SSA1,83,3 (m) Whether the petitioner is requesting a full or limited guardianship and, if limited, the specific authority sought by the petitioner for the guardian or the specific rights of the individual that the petitioner seeks to have removed or transferred.

SB391-SSA1,83,5 (n) Whether the proposed ward, if married, has children who are not children of the current marriage.

SB391-SSA1,83,9 (p) Whether the petitioner is aware of any guardianship or conservatorship or related pending or ordered proceeding involving the proposed ward in another state or county and, if so, the details of the guardianship, conservationship, or related processings.

SB391-SSA1,83,13 (3) A petition for the receipt and acceptance by this state of a foreign guardianship of a foreign ward who resides in or intends to move to this state may include other petitions related to the foreign guardianship, such as a petition to modify the terms of the foreign guardianship, and shall include all of the following:

SB391-SSA1,83,15 (a) A certified copy of the foreign guardianship order that includes all of the following:

SB391-SSA1,83,16 1. All attachments that describe the duties and powers of the foreign guardian.

SB391-SSA1,83,19 2. All amendments or modifications to the foreign guardianship order that were entered after issuance of the original foreign guardianship order, including any order to transfer the foreign guardianship.

SB391-SSA1,83,20 (b) The address of the foreign court that issued the foreign guardianship order.

SB391-SSA1,83,24 (c) A listing of any other guardianship petitions for the foreign ward that are pending or that have been filed in any jurisdiction at any time within 24 months before the filing of the petition under this subsection and the names and addresses of the courts in which the petitions have been filed.

SB391-SSA1,84,2 (d) The petitioner's name, residence, current address, and any relationship of the petitioner to the foreign ward other than as foreign guardian.

SB391-SSA1,84,3 (e) The name, age, principal residence, and current address of the foreign ward.

SB391-SSA1,84,8 (f) The name and address of any spouse of the foreign ward and any adult children, parents, or adult siblings of the foreign ward. If the foreign ward has no spouse, adult child, parent, or adult sibling, the name and address of at least one adult who is next closest in degree of kinship, as specified in s. 990.001 (16), to the ward, if available.

SB391-SSA1,84,10 (g) The name and address of any person other than the foreign guardian who is responsible for the care or custody of the foreign ward.

SB391-SSA1,84,12 (h) The name and address of any legal counsel of the foreign ward, including any guardian ad litem appointed by the foreign court.

SB391-SSA1,84,13 (i) The reason for the transfer of the foreign guardianship.

SB391-SSA1,84,15 (j) A general statement of the foreign ward's property, its location, its estimated value, and the source and amount of any other anticipated income or receipts.

SB391-SSA1,84,18 54.36 (2) A petitioner or guardian ad litem may petition the court for an order requiring the proposed ward to submit to an examination by a licensed physician or psychologist pursuant to s. 804.10 (1).

SB391-SSA1,84,22 (3) A physician or psychologist who examines a proposed ward under a court order requiring the examination may, without the informed consent of the proposed ward, obtain access to the patient health care records and treatment records of the proposed ward.

SB391-SSA1,85,7 54.38 Notice. (1) Form and delivery of notice. A notice shall be in writing. A copy of the petition, motion, or other required document shall be attached to the notice. Unless otherwise provided, notice may be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Failure of the petitioner to provide notice to all interested persons shall deprive the court of jurisdiction unless receipt of notice is waived by the interested person or under sub. (2) (b) 4.

SB391-SSA1,85,15 (1m) Notice of petition for receipt and acceptance of a foreign guardianship. (a) Notice of a petition for receipt and acceptance of a foreign guardianship, unless otherwise provided, shall be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Notice shall be served by the petitioner on all of the following:

SB391-SSA1,85,18 1. The foreign ward. The notice under this subdivision shall be delivered personally, shall be in plain language and large type, and shall include all of the following:

SB391-SSA1,85,21 a. A statement that the foreign ward has the right to a hearing on the petition under s. 54.44 and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person.

SB391-SSA1,85,23 b. A description of the procedures by which the foreign ward may exercise his or her right to a hearing.

SB391-SSA1,85,25 c. A description of the consequences to the foreign ward of a transfer of the foreign guardianship from the foreign jurisdiction to this state.

SB391-SSA1,86,3 2. The foreign court from which the foreign guardianship is sought to be transferred. Notice under this subdivision shall include a request that the foreign court provide all of the following:

SB391-SSA1,86,8 a. Certification that the foreign court has no knowledge that the foreign guardian has engaged in any acts specified in s. 54.68 (2) (a) to (i), failed to perform any duties of a guardian required by the foreign jurisdiction or the foreign court, or performed any acts prohibited to a guardian by the foreign jurisdiction or the foreign court.

SB391-SSA1,86,17 b. Copies of all documents filed with the foreign court that are relevant to the foreign guardianship, including the initial petition for the foreign guardianship and other filed documents relevant to the appointment of the guardian; any reports and recommendations of any guardian ad litem or other individual appointed by the foreign court to evaluate the appropriateness of the foreign guardianship; any reports of health care or mental health care practitioners that describe the capacity of the foreign ward to care for himself or herself or to manage his or her affairs; any periodic status reports on the condition of the foreign ward and his or her assets; and any order to transfer the foreign guardianship.

SB391-SSA1,86,24 3. All interested persons other than the foreign ward, including any foreign legal counsel appointed or retained for the foreign ward and any foreign guardian ad litem appointed for the foreign ward. Notice under this subdivision shall include a statement that informs persons receiving notice of the right to object to the receipt and acceptance of the foreign guardianship and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person, mailed, or sent by facsimile transmission.

SB391-SSA1,87,2 (b) Any of the following shall deprive the court of jurisdiction to hear the petition for receipt and acceptance of the foreign guardianship:

SB391-SSA1,87,3 1. Failure by the petitioner to serve notice as specified in par. (a) 1., 2., or 3.

SB391-SSA1,87,6 2. Failure by the foreign court to provide the certifications and copies within 30 days after receipt of the notice specified in par. (a) 2. or to give indication of compliance within a reasonable period of time.

SB391-SSA1,87,8 (2) (b) Personally or by mail at least 10 days before the time set for hearing, to all of the following:

SB391-SSA1,87,9 1. The proposed ward's counsel, if any.

SB391-SSA1,87,10 2. The proposed ward's guardian ad litem.

SB391-SSA1,87,11 3. Any presumptive adult heirs, as specified in s. 851.09, of the proposed ward.

SB391-SSA1,87,12 4. Any other interested persons, unless specifically waived by the court.

SB391-SSA1,87,14 5. The agent under any durable power of attorney or power of attorney for health care of the ward.

SB391-SSA1,87,15 6. Any person who has legal or physical custody of the proposed ward.

SB391-SSA1,87,17 7. Any public or private agency, charity, or foundation from which the proposed ward is receiving aid or assistance.

SB391-SSA1,87,18 8. The proposed guardian for the proposed ward.

SB391-SSA1,87,19 9. Any other person that the court requires.

SB391-SSA1,87,23 54.40 (4) (c) Interview the proposed guardian, the proposed standby guardian, if any, and any other person seeking appointment as guardian and report to the court concerning the suitability of each individual interviewed to serve as guardian and concerning the report under s. 54.15 (8).

SB391-SSA1,88,2 (d) 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 243 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.

SB391-SSA1,88,4 2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.

SB391-SSA1,88,6 3. Report to the court concerning whether or not the proposed ward's advance planning is adequate to preclude the need for guardianship.

SB391-SSA1,88,8 (g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner's counsel, if any.

SB391-SSA1,88,9 (h) Attend all court proceedings related to the guardianship.

SB391-SSA1,88,11 54.42 Rights of proposed ward or ward. (1) Right to counsel. (a) 1. The proposed ward or ward requests counsel.

SB391-SSA1,88,13 2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.

SB391-SSA1,88,15 3. The court determines that the interests of justice require counsel for the proposed ward or ward.

SB391-SSA1,88,17 (b) Any attorney obtained under par. (a) or appointed under par. (c) shall be an advocate for the expressed wishes of the proposed ward or ward.

SB391-SSA1,88,25 (2) Right to jury trial. The proposed ward or ward has the right to a trial by a jury if demanded by the proposed ward or ward, his or her attorney, or the guardian ad litem, except that the right is waived unless demanded at least 48 hours before the time set for the hearing. The number of jurors for such a trial is determined under s. 756.06 (2) (b). The proposed ward or ward, his or her attorney, or the guardian ad litem each has the right to present and cross-examine witnesses, including any physician or licensed psychologist who reports to the court concerning the proposed ward.

SB391-SSA1,89,1 (3) Right to independent examination.

SB391-SSA1,89,3 (5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.

SB391-SSA1,89,6 (6) Right to hearing in accessible location. The proposed ward or ward has the right to have any hearing regarding the guardianship conducted in a location and manner that is accessible to the proposed ward or ward.

SB391-SSA1,89,12 54.44 Hearing. (1) Time of hearing; provision of reports. (a) Time of hearing for petition. A petition for guardianship, other than a petition under par. (b) or (c) or s. 54.50 (1), shall be heard within 90 days after it is filed. The guardian ad litem and attorney for the proposed ward shall be provided with a copy of the report of the examining physician or psychologist under s. 54.36 (1) at least 96 hours before the time of the hearing.

SB391-SSA1,89,17 (c) Time of hearing for petition for receipt and acceptance of a foreign guardianship. 1. If a motion for a hearing on a petition for receipt and acceptance of a foreign guardianship is made by the foreign ward, by a person who has received notice under s. 54.38 (1m) (a) 3., or on the court's own motion, a hearing on the petition shall be heard within 90 days after the petition is filed.

SB391-SSA1,89,20 2. If a petition for receipt and acceptance of a foreign guardianship includes a request to modify the provisions of the foreign guardianship, the petition shall be heard within 90 days after it is filed.

SB391-SSA1,89,25 3. If a person receiving notice of the petition for receipt and acceptance of the foreign guardianship challenges the validity of the foreign guardianship or the authority of the foreign court to appoint the foreign guardian, the court may stay the proceeding under this subsection to afford the opportunity to the interested person to have the foreign court hear the challenge and determine its merits.

SB391-SSA1,90,3 (2) Standard of proof. Any determination by the court as to whether the proposed ward a minor, is incompetent, or a spendthrift shall be by clear and convincing evidence.

SB391-SSA1,90,7 (3) Presence of proposed guardian or petitioner. (a) The proposed guardian and any proposed standby guardian shall be physically present at the hearing unless the court excuses the attendance of either or, for good cause shown, permits attendance by telephone.

SB391-SSA1,90,11 (b) The petitioner, for a petition for receipt and acceptance of a foreign guardianship, shall be physically present at the hearing specified under sub. (1) (c) unless the court excuses the petitioner's attendance or, for good cause shown, permits attendance by telephone.

SB391-SSA1,90,23 (4) Presence of proposed ward. (a) Adult proposed ward. The petitioner shall ensure that the proposed ward attends the hearing unless the attendance is waived by the guardian ad litem. In determining whether to waive attendance by the proposed ward, the guardian ad litem shall consider the ability of the proposed ward to understand and meaningfully participate, the effect of the proposed ward's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the proposed ward's expressed desires. If the proposed ward is unable to attend the hearing because of residency in a nursing home or other facility, physical inaccessibility, or a lack of transportation and if the proposed ward, guardian ad litem, advocate counsel, or other interested person so requests, the court shall hold the hearing in a place where the proposed ward may attend.

SB391-SSA1,90,24 (b) Minor proposed ward. A minor is not required to attend the hearing.

SB391-SSA1,91,11 (c) Foreign ward. The petitioner for a petition for receipt and acceptance of a foreign guardianship shall ensure that the foreign ward attends the hearing unless the attendance is waived by the guardian ad litem. In determining whether to waive attendance by the foreign ward, the guardian ad litem shall consider the ability of the foreign ward to understand and meaningfully participate, the effect of the foreign ward's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the foreign ward's expressed desires. If the foreign ward is unable to attend the hearing because of residency in a nursing home or other facility, physical inaccessibility, or a lack of transportation and if the foreign ward, guardian ad litem, advocate counsel, or other interested person so requests, the court shall hold the hearing in a place where the foreign ward may attend.

SB391-SSA1,91,16 (6) Proposed guardian unsuitable. If the court finds that the proposed guardian is unsuitable, the court shall request that a petition proposing a suitable guardian be filed, shall set a date for a hearing to be held within 30 days, and shall require the guardian ad litem to investigate the suitability of a new proposed guardian.

SB391-SSA1,91,18 54.46 Disposition of petition. After the hearing under s. 54.44, the court shall dispose of the case in one of the following ways:

SB391-SSA1,91,20 (1) Dismissal of the petition for guardianship. (a) If the court finds any of the following, the court shall dismiss the petition:

SB391-SSA1,91,22 1. Contrary to the allegations of the petition, the proposed ward is not any of the following:

SB391-SSA1,91,23 a. Incompetent.