Amendment SSA1-SB391

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.

SB391-SSA1,91,24 b. A spendthrift.

SB391-SSA1,91,25 c. A minor.

SB391-SSA1,92,2 2. Advance planning by the ward, as specified in s. 54.10 (3) (c) 3., renders guardianship unnecessary.

SB391-SSA1,92,3 3. The elements of the petition are unproven.

SB391-SSA1,92,5 (b) The court may also consider an application by the proposed ward for the appointment of a conservator under s. 54.76.

SB391-SSA1,92,8 (1m) Dismissal of the petition for receipt and acceptance of a foreign guardianship. If the court finds any of the following, the court shall dismiss the petition:

SB391-SSA1,92,10 (a) The foreign guardian is not presently in good standing with the foreign court.

SB391-SSA1,92,13 (b) The foreign guardian is moving or has moved the foreign ward or the property of the foreign ward from the foreign jurisdiction in order to avoid or circumvent the provisions of the foreign guardianship order.

SB391-SSA1,92,15 (c) The transfer of the foreign guardianship from the foreign jurisdiction is not in the best interests of the foreign ward.

SB391-SSA1,92,18 (1r) Receipt and acceptance of a foreign guardianship. (a) The court shall grant a petition for receipt and acceptance of a foreign guardianship if the court finds all of the following:

SB391-SSA1,92,20 1. That the foreign guardian is presently in good standing with the foreign court.

SB391-SSA1,92,23 2. That the foreign guardian is not moving or has not moved the foreign ward or the property of the foreign ward from the foreign jurisdiction in order to avoid or circumvent the provisions of the foreign guardianship order.

SB391-SSA1,92,25 3. That the transfer of the foreign guardianship from the foreign jurisdiction is in the best interests of the foreign ward.

SB391-SSA1,93,4 (b) In granting a petition under par. (a), the court shall give full faith and credit to the provisions of the foreign guardianship order concerning the determination of the foreign ward's incapacity. However, the court may modify the provisions of the foreign guardianship order with respect to all of the following:

SB391-SSA1,93,5 1. Surety bond requirements.

SB391-SSA1,93,6 2. The appointment of a guardian ad litem.

SB391-SSA1,93,7 3. Periodic reporting requirements.

SB391-SSA1,93,9 4. Any other provisions necessary to conform the foreign guardianship order to the requirements of this chapter and other requirements of this state.

SB391-SSA1,93,11 (c) The court may require the foreign guardian to file an inventory of the foreign ward's property at the time of the transfer from the foreign jurisdiction.

SB391-SSA1,93,14 (d) If granting the petition for receipt and acceptance of the foreign guardianship, the court shall coordinate with the foreign court the orderly transfer of the foreign guardianship and, in doing so, the court may do all of the following:

SB391-SSA1,93,16 1. Delay the effective date of the receipt and acceptance of the foreign guardianship.

SB391-SSA1,93,19 2. Make the receipt and acceptance of the foreign guardianship contingent upon the release or termination of the foreign guardianship and discharge of the foreign guardian under the foreign jurisdiction.

SB391-SSA1,93,22 3. Recognize concurrent jurisdiction over the guardianship for a reasonable period of time to permit the foreign court to release or terminate the foreign guardianship and discharge the foreign guardian.

SB391-SSA1,93,24 4. Make other arrangements that the court determines are necessary to effectuate the receipt and acceptance of the foreign guardianship.

SB391-SSA1,94,5 (2) Appointment of guardian; order. If the proposed ward is found to be incompetent, a minor, or a spendthrift, the court may enter a determination and order appointing a guardian that specifies any powers of the guardian that require court approval, as provided in ss. 54.20 (2) and 54.25 (2), and may provide for any of the following:

SB391-SSA1,94,9 (a) Coguardians. If the court appoints coguardians of the person or coguardians of the estate under s. 54.10 (5), and unless otherwise ordered by the court, each decision made by a coguardian with respect to the ward must be concurred in by any other coguardian, or the decision is void.

SB391-SSA1,94,17 (c) Durable power of attorney. If the ward has executed a durable power of attorney before a finding of incompetency and appointment of a guardian is made for the ward under this chapter, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the ward's guardian may not make decisions for the ward that may be made by the agent, unless the guardian is the agent.

SB391-SSA1,94,20 (3) (c) Fees if guardian is not appointed. If a guardian is not appointed under sub. (2), the petitioner is liable for any fees due the guardian ad litem and the proposed ward's legal counsel.

SB391-SSA1,94,24 54.50 Temporary guardianships. (1) Standard. If it is demonstrated to the court that a proposed ward's particular situation, including the needs of the proposed ward's dependents, requires the immediate appointment of a temporary guardian of the person or estate, the court may appoint a temporary guardian under this section.

SB391-SSA1,95,2 (3) Procedures for appointment. All of the following procedures apply to the appointment of a temporary guardian:

SB391-SSA1,95,8 (a) Any person may petition for the appointment of a temporary guardian for an individual. The petition shall contain the information required under s. 54.34 (1), shall specify reasons for the appointment of a temporary guardian and the powers requested for the temporary guardian, including the power specified in s. 51.30 (5) (e), and shall include a petition for appointment of a guardian of the person or estate or state why such a guardianship is not sought.

SB391-SSA1,95,13 (b) The court shall appoint a guardian ad litem, who shall attempt to meet with the proposed ward before the hearing or as soon as is practicable after the hearing, but not later than 7 calendar days after the hearing. The guardian ad litem shall report to the court on the advisability of the temporary guardianship at the hearing or not later than 10 calendar days after the hearing.

SB391-SSA1,95,20 (c) The court shall hold a hearing on the temporary guardianship. The hearing may be held no earlier than 48 hours after the filing of the petition unless good cause is shown. At the hearing, the petitioner shall provide a report or testimony from a physician or psychologist that indicates that there is a reasonable likelihood that the proposed ward is incompetent. The guardian ad litem shall attend the hearing in person or by telephone or, instead, shall provide to the court a written report concerning the proposed ward for review at the hearing.