Amendment SSA1-SB391

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.

SB391-SSA1,96,2 (d) If the court appoints a temporary guardian and if the ward, his or her counsel, the guardian ad litem, or an interested party requests, the court shall order a rehearing on the issue of appointment of the temporary guardian within 10 calendar days after the request. If a rehearing is requested, the temporary guardian may take no action to expend the ward's assets, pending a rehearing, without approval by the court.

SB391-SSA1,96,4 subchapter v post-appointment matters

SB391-SSA1,96,6 54.60 (2) Contents of inventory. The inventory shall provide all of the following information with respect to each asset:

SB391-SSA1,96,7 (a) How the asset is held or titled.

SB391-SSA1,96,8 (b) The name and relationship to the ward of any co-owner.

SB391-SSA1,96,11 (c) The marital property classification of the property and, for any property that is marital property, the spouse who has management and control rights with respect to the property.

SB391-SSA1,96,13 (3) Time for filing. The guardian of the estate shall file the initial inventory within 60 days after appointment, unless the court extends or reduces the time.

SB391-SSA1,96,15 (4) Notice of inventory. The court shall specify the persons to whom the guardian of the estate shall provide copies of the inventory.

SB391-SSA1,96,18 (5) Fee. The guardian of the estate shall pay from the ward's income and assets the fee specified in s. 814.66 (1) (b) 2. at the time the inventory or other documents concerning the value of the income and assets are filed.

SB391-SSA1,96,20 (6) Appraisal. The court may order that the guardian of the estate appraise all or any part of the ward's assets.

SB391-SSA1,96,21 54.62 Accounts.

SB391-SSA1,97,2 (3) Small estates. (a) If a ward's income and assets do not exceed the amount specified in s. 867.03 (1g) (intro.), the guardian need not file an account under sub. (1) unless otherwise ordered to do so by the court. For the purposes of this paragraph, the value of the ward's income and assets does not include the ward's income, any burial trust possessed by the ward, or any term or other life insurance policy that is irrevocably assigned to pay for the disposition of the ward's remains at death.

SB391-SSA1,97,6 (b) If the ward's income and assets, as calculated under par. (a), increase above the amount specified in s. 867.03 (1g) (intro.), the guardian shall so notify the court, which shall determine if an annual account under sub. (1) or a final account under s. 54.66 is required.

SB391-SSA1,97,10 (4) Annual accounts of married wards. (a) For a married ward, the court may waive filing of an annual account under sub. (1) or permit the filing of a modified annual account, which shall be signed by the ward's guardian and spouse and shall consist of all of the following:

SB391-SSA1,97,12 1. Total assets of the ward, as determined under ch. 766, on January 1 of the year in question.

SB391-SSA1,97,14 2. Income in the name of the ward, without regard to ch. 766, and the ward's joint income.

SB391-SSA1,97,17 3. Expenses incurred on behalf of the ward, including the ward's proportionate share of household expenses if the ward and the ward's spouse reside in the same household, without regard to ch. 766.

SB391-SSA1,97,19 4. Total marital property of the ward, as determined under ch. 766, on December 31 of the year in question.

SB391-SSA1,97,21 (b) The court shall provide notice of the waiver under par. (a) to any adult child of the ward.

SB391-SSA1,97,22 (7) (a) The ward.

SB391-SSA1,97,23 (b) Any guardian ad litem appointed by the court.

SB391-SSA1,97,25 (c) Any personal representative or special administrator appointed by the court.

SB391-SSA1,98,6 54.63 Expansion of order of guardianship; procedure. (1) If the guardian or another interested person submits to the court a written statement with relevant accompanying support requesting the removal of rights from the ward and transfer to the guardian of powers in addition to those specified in the order of appointment of the guardian, based on an expansion of the ward's incapacity, the court shall do all of the following:

SB391-SSA1,98,7 (a) Appoint a guardian ad litem for the ward.

SB391-SSA1,98,9 (b) Order that notice, including notice concerning potential court action if circumstances are extraordinary, be given to all of the following:

SB391-SSA1,98,11 1. The county department of social services or human services if the ward is protectively placed or receives long-term support services as a public benefit.

SB391-SSA1,98,12 2. The ward.

SB391-SSA1,98,13 3. The guardian.

SB391-SSA1,98,15 4. The agent under the ward's power of attorney for health care under ch. 155, if any, and the agent under the ward's durable power of attorney under ch. 243, if any.