SB391: Bill Text

SB391,78,6 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.

SB391,78,7 p. Any other power the court may specifically identify.

SB391,78,11 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:

SB391,78,14 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.

SB391,78,22 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.

SB391,78,24 c. Consider whether the ward's estate is sufficient to pay for the needed services.

SB391,79,2 subchapter IV procedures

SB391,79,3 54.30 Jurisdiction and venue.

SB391,79,5 (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.

SB391,79,9 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.

SB391,79,18 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.

SB391,79,20 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.

SB391,79,22 (L) The agent under any current, valid power of attorney for health care or durable power of attorney that the proposed ward has executed.

SB391,79,25 (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.

SB391,80,2 (n) Whether the proposed ward, if married, has children who are not children of the current marriage.

SB391,80,4 (p) Whether there is a petition for guardianship or conservatorship of the proposed ward pending in another state or county.

SB391,80,7 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).

SB391,80,11 (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.

SB391,80,18 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.

SB391,80,20 (2) (b) Personally or by mail at least 10 days before the time set for hearing, to all of the following:

SB391,80,21 1. The proposed ward's counsel, if any.

SB391,80,22 2. The proposed ward's guardian ad litem.

SB391,80,23 3. Any presumptive adult heirs, as specified in s. 851.09, of the proposed ward.

SB391,80,24 4. Any other interested persons, unless specifically waived by the court.

SB391,81,2 5. The agent under any durable power of attorney or power of attorney for health care of the ward.

SB391,81,3 6. Any person who has legal or physical custody of the proposed ward.

SB391,81,5 7. Any public or private agency, charity, or foundation from which the proposed ward is receiving aid or assistance.

SB391,81,6 8. The proposed guardian for the proposed ward.

SB391,81,7 9. Any other person that the court requires.

SB391,81,11 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 fitness of each individual interviewed to serve as guardian and concerning the report under s. 54.15 (8).

SB391,81,15 (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.

SB391,81,17 2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.

SB391,81,19 3. Report to the court concerning whether or not the proposed ward's advance planning is adequate to preclude the need for guardianship.

SB391,81,21 (g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner's counsel, if any.

SB391,81,22 (h) Attend all court proceedings related to the guardianship.

SB391,81,24 54.42 Rights of proposed ward or ward. (1) Right to counsel. (a) 1. The proposed ward or ward requests counsel.

SB391,82,2 2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.

SB391,82,4 3. The court determines that the interests of justice require counsel for the proposed ward or ward.

SB391,82,6 (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.

SB391,82,14 (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.

SB391,82,15 (3) Right to independent examination.

SB391,82,17 (5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.

SB391,82,20 (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.

SB391,83,2 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 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.

SB391,83,5 (2) Standard of proof. Any determination by the court as to whether the proposed ward is incompetent or is a spendthrift shall be by clear and convincing evidence.

SB391,83,8 (3) Presence of proposed guardian. 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.

SB391,83,20 (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.

SB391,83,21 (b) Minor proposed ward. A minor is not required to attend the hearing.

SB391,84,2 (6) Proposed guardian inappropriate. If the court finds that the proposed guardian is inappropriate, 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.

SB391,84,4 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:

SB391,84,6 (1) Dismissal of the petition. (a) If the court finds any of the following, the court shall dismiss the petition:

SB391,84,8 1. Contrary to the allegations of the petition, the proposed ward is not any of the following:

SB391,84,9 a. Incompetent.

SB391,84,10 b. A spendthrift.

SB391,84,11 c. A minor.

SB391,84,13 2. Advance planning by the ward, as specified in s. 54.10 (3) (c) 3., renders guardianship unnecessary.

SB391,84,14 3. The elements of the petition are unproven.

SB391,84,16 (b) The court may also consider an application by the proposed ward for the appointment of a conservator under s. 54.76.

SB391,84,21 (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:

SB391,84,25 (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.

SB391,85,8 (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.

SB391,85,12 (3) (c) Fees if guardian is not appointed. If a guardian is not appointed under sub. (2), the county in which the action is pending for the guardianship proceeding is the county liable for any fees due the guardian ad litem. The proposed ward is liable for any fees due his or her legal counsel, except as follows:

SB391,85,14 1. If counsel is appointed under s. 977.08, the proposed ward is liable only for the fees applicable under ss. 977.07 and 977.075.

SB391,85,16 2. If the court finds the petition for guardianship frivolous under s. 814.025, the court may assess fees to the petitioner.

SB391,85,18 3. If the proposed ward is indigent and counsel is not appointed under s. 977.08, the county in which venue lies for the guardianship proceeding is liable.

SB391,85,22 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.

SB391,85,24 (3) Procedures for appointment. All of the following procedures apply to the appointment of a temporary guardian:

SB391,86,6 (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.

SB391,86,11 (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.

SB391,86,18 (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.

SB391,86,24 (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.

SB391,87,2 subchapter v post-appointment matters

SB391,87,4 54.60 (2) Contents of inventory. The inventory shall provide all of the following information with respect to each asset:

SB391,87,5 (a) How the asset is held or titled.

SB391,87,6 (b) The name and relationship to the ward of any co-owner.

SB391,87,9 (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.

SB391,87,11 (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.

SB391,87,13 (4) Notice of inventory. The court shall specify the persons to whom the guardian of the estate shall provide copies of the inventory.

SB391,87,16 (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.

SB391,87,18 (6) Appraisal. The court may order that the guardian of the estate appraise all or any part of the ward's assets.

SB391,87,19 54.62 Accounts.

SB391,87,25 (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.

SB391,88,4 (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.

SB391,88,8 (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:

SB391,88,10 1. Total assets of the ward, as determined under ch. 766, on January 1 of the year in question.

SB391,88,12 2. Income in the name of the ward, without regard to ch. 766, and the ward's joint income.

SB391,88,15 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.

SB391,88,17 4. Total marital property of the ward, as determined under ch. 766, on December 31 of the year in question.

SB391,88,19 (b) The court shall provide notice of the waiver under par. (a) to any adult child of the ward.