SB391: Bill Text

SB391,63,18 (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:

SB391,63,20 1. The proposed guardian is currently charged with or has been convicted of a crime, as defined in s. 939.12.

SB391,63,22 2. The proposed guardian has filed for or received protection under the federal bankruptcy laws.

SB391,63,25 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.

SB391,64,1 4. The proposed guardian is listed under s. 146.40 (4g) (a) 2.

SB391,64,4 (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.

SB391,64,11 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.

SB391,64,12 (2) A guardian shall do all of the following:

SB391,64,14 (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.

SB391,64,17 (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.

SB391,64,19 (c) Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.

SB391,64,20 (d) Notify the court of any change of address of the guardian or ward.

SB391,64,21 (3) No guardian may do any of the following:

SB391,64,23 (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.

SB391,65,6 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:

SB391,65,8 (2) Retain, expend, distribute, sell, or invest the ward's property, rents, income, benefits, and proceeds and account for all of them, subject to ch. 786.

SB391,65,11 (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.

SB391,65,13 (4) Use the ward's income and property to maintain and support the ward and any dependents of the ward.

SB391,65,14 (5) Prepare and file an annual account as specified in s. 54.62.

SB391,65,16 (6) At the termination of the guardianship, deliver the ward's assets to the persons entitled to them.

SB391,65,21 (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.

SB391,65,22 (9) Perform any other duty required by the court order.

SB391,65,25 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.

SB391,66,2 (b) The ward's personal preferences and desires with regard to managing his or her activities of daily living.

SB391,66,3 (c) The least restrictive form of intervention for the ward.

SB391,66,7 (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:

SB391,66,9 (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.

SB391,66,11 (c) Establish a trust as specified under 42 USC 1396p (d) (4) and transfer assets into the trust.

SB391,66,14 (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.

SB391,66,16 (e) Ascertain, establish, and exercise any rights available to the ward under a retirement plan or account.

SB391,66,18 (f) Exercise any elective rights that accrue to the ward as the result of the death of the ward's spouse or parent.

SB391,66,20 (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.

SB391,66,22 (i) Provide support for an individual whom the ward is not legally obligated to support.

SB391,66,25 (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.

SB391,67,3 (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:

SB391,67,5 (a) Provide support from the ward's income and assets for an individual whom the ward is legally obligated to support.

SB391,67,7 (b) Enter into a contract, other than a contract under sub. (2) or that is otherwise prohibited under this chapter.

SB391,67,8 (c) Exercise options of the ward to purchase securities or other property.

SB391,67,9 (d) Authorize access to or release of the ward's confidential financial records.

SB391,67,10 (e) Apply for public and private benefits.

SB391,67,12 (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.

SB391,67,13 54.21 Petition to transfer ward's assets to another. (1) In this section:

SB391,67,14 (a) "Disabled" has the meaning given in s. 49.468 (1) (a) 1.

SB391,67,15 (b) "Other individual" means any of the following:

SB391,67,16 1. The ward's spouse, if any.

SB391,67,18 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.

SB391,67,19 3. The guardian ad litem of the ward's minor child, if any.

SB391,67,20 4. The ward's disabled child, if any.

SB391,67,22 5. Any of the ward's siblings who has an ownership interest in property that is co-owned with the ward.

SB391,67,24 6. Any of the ward's children who provides care for the ward as specified in 42 USC 1396p (c) (2) (A) iv.

SB391,68,2 (c) "Will, trust, or other instrument" includes a revocable or irrevocable trust, a durable power of attorney, or a marital property agreement.

SB391,68,6 (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:

SB391,68,9 (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.

SB391,68,16 (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.

SB391,68,18 (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.

SB391,68,19 (d) The wishes, if ascertainable, of the ward.

SB391,68,21 (e) As specified in sub. (3), whether the ward has previously executed a will or similar instrument.

SB391,68,23 (f) A description of any significant gifts or patterns of gifts that the ward has made.

SB391,69,3 (g) The current and likely future effect of the proposed transfer of assets on the ward's eligibility for public benefits, including medical assistance or a benefit under s. 46.27.

SB391,69,5 (h) Whether the guardian of the person and the guardian of the estate, if not the petitioner, agree with or object to the transfer.

SB391,69,7 (i) The names, post-office addresses, and relationships to the ward of all of the following:

SB391,69,9 1. Any presumptive adult heirs of the ward who can be ascertained with reasonable diligence.

SB391,69,12 2. If the ward has previously executed a will, trust, or other instrument, the named or described beneficiaries, if known, under the most recent will, trust, or other instrument executed by the ward.

SB391,69,16 (3) (a) If a ward has previously executed a will, trust, or other instrument for nontestamentary transfer and the petitioner is able, with reasonable diligence, to obtain a copy, the petitioner shall provide the copy to the court, together with a statement that specifies all of the following:

SB391,69,17 1. The manner in which the copy was secured.

SB391,69,20 2. The manner in which the terms of the will, trust, or other instrument for nontestamentary transfer became known to the petitioner for nontestamentary transfer.

SB391,69,22 3. The basis for the petitioner's belief that the copy is of the ward's most recently executed will, trust, or other instrument.

SB391,70,2 (b) If the petitioner is unable to obtain a copy of the most recently executed will or other dispositive estate planning document or is unable to determine if the ward has previously executed a will or other dispositive estate planning document, the petitioner shall provide a statement to the court that specifies the efforts that were made by the petitioner to obtain a copy or ascertain the information.

SB391,70,8 (c) If a copy of the most recently executed will or other dispositive estate planning document is not otherwise available, the court may order the person who has the original will or other dispositive estate planning document to provide a photocopy to the court for in camera examination. The court may provide the photocopy to the parties to the proceeding unless the court finds that doing so is contrary to the ward's best interests.

SB391,70,12 (d) The petitioner and the court shall keep confidential the information in a will or other dispositive estate planning document, or a copy of the will or other dispositive estate planning document, under this subsection, and may not, unless otherwise authorized, disclose that information.

SB391,70,15 (4) The petitioner shall serve notice upon all of the following, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named in the notice, for the order described in the petition:

SB391,70,17 (a) If not the same as the petitioner, the guardian of the person and the guardian of the estate.

SB391,70,19 (b) Unless the court dispenses with notice under this subsection, the persons specified in sub. (2) (i), if known to the petitioner.

SB391,70,20 (c) The county corporation counsel, if the county has an interest in the matter.

SB391,70,21 (5) The court shall consider all of the following in reviewing the petition:

SB391,70,22 (a) The wishes of the ward, if known.

SB391,70,25 (b) Whether the duration of the ward's impairment is likely to be sufficiently brief so as to justify dismissal of the proceedings in anticipation of the ward's recovered ability to decide whether, and to whom, to transfer his or her assets.

SB391,71,2 (c) Whether the proposed transfer will benefit the ward, the ward's income and assets, or members of the ward's immediate family.

SB391,71,6 (d) Whether the donees or beneficiaries under the proposed disposition are reasonably expected objects of the ward's generosity and whether the proposed disposition is consistent with any ascertained wishes of the ward or known estate plan or pattern of lifetime gifts that he or she has made.

SB391,71,9 (e) Whether the proposed disposition will produce tax savings that will significantly benefit the ward, his or her dependents, or other persons for whom the ward would be concerned.

SB391,71,11 (f) The factors specified in sub. (2) (a) to (i) and any statements or other evidence under sub. (3).

SB391,71,12 (g) Any other factors that the court determines are relevant.

SB391,71,15 (6) The court may grant the petition under sub. (2) and enter an order authorizing and directing the guardian of the estate to take action requested in the petition, if the court finds and records all of the following:

SB391,71,18 (a) That the ward has incapacity to perform the act for which approval is sought and the incapacity is not likely to change positively within a reasonable period of time.

SB391,71,20 (b) That a competent individual in the position of the ward would likely perform the act under the same circumstances.

SB391,71,22 (c) That, before the ward had incapacity to perform the act for which approval is sought, he or she did not manifest intent that is inconsistent with the act.

SB391,71,25 (7) Nothing in this section requires a guardian to file a petition under this section and a guardian is not liable or accountable to any person for having failed to file a petition under this section.

SB391,72,1 54.25 (1) Duties. A guardian of the person shall do all of the following:

SB391,72,3 (b) 1. Regular inspection, in person, of the ward's condition, surroundings, and treatment.