SB391: Bill Text

SB391, s. 374 Section 374. 880.15 (2) of the statutes is repealed.

SB391, s. 375 Section 375. 880.15 (3) of the statutes is renumbered 54.50 (4) and amended to read:

SB391,189,23 54.50 (4) (d) Cessation of powers. If the temporary guardianship is not sooner terminated the The duties and powers of the temporary guardian shall cease upon the issuing of letters of permanent guardianship to the guardian of the ward, or, if the ward is a minor, upon his becoming of age, or when it shall be judicially determined, the expiration of the time period specified in sub. (2), or if the court sooner determines that any other disability of the temporary ward which situation of the ward that was the cause of the temporary guardianship has terminated. Upon the termination of the temporary guardian's duties and powers, a temporary guardian of the person shall file with the court any report that the court requires. A temporary guardian of the estate shall, upon the termination of duties and powers, account to the court and deliver to the person or persons entitled to them all the estate of the ward in his or her hands the ward's estate over which the temporary guardian of the estate has had control. Any action which that has been commenced by the temporary guardian may be prosecuted to final judgment by the successor or successors in interest, if any.

SB391, s. 376 Section 376. 880.155 of the statutes is renumbered 54.56 and amended to read:

SB391,190,3 54.56 Visitation by a minor's grandparents and stepparents. (1) In this section, "stepparent" means the surviving spouse of a deceased parent of a minor child, whether or not the surviving spouse has remarried.

SB391,190,14 (2) If one or both parents of a minor child are deceased and the child minor is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child minor may petition for visitation privileges with respect to the child minor, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter that affects the minor child or may file the petition to commence an independent action under this chapter. Except as provided in sub. (3m), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child minor has notice of the hearing and if the court determines that visitation is in the best interest of the child minor.

SB391,190,16 (3) Whenever possible, in making a determination under sub. (2), the court shall consider the wishes of the child minor.

SB391,190,21 (3m) (a) Except as provided in par. (b), the court may not grant visitation privileges to a grandparent or stepparent under this section if the grandparent or stepparent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child minor, and the conviction has not been reversed, set aside or vacated.

SB391,190,24 (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child minor. The court shall consider the wishes of the child minor in making the determination.

SB391,191,3 (4) The court may issue any necessary order to enforce a visitation order that is granted under this section, and may from time to time modify such the visitation privileges or enforcement order upon a showing of for good cause shown.

SB391,191,11 (4m) (a) If a grandparent or stepparent granted visitation privileges with respect to a child minor under this section is convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child minor, and the conviction has not been reversed, set aside or vacated, the court shall modify the visitation order by denying visitation with the child minor upon petition, motion or order to show cause by a person having custody of the child minor, or upon the court's own motion, and upon notice to the grandparent or stepparent granted visitation privileges.

SB391,191,14 (b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child minor. The court shall consider the wishes of the child minor in making the determination.

SB391,191,16 (5) This section applies to every minor child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.

SB391, s. 377 Section 377. 880.157 (title) of the statutes is renumbered 54.57 (title).

SB391, s. 378 Section 378. 880.157 (1) of the statutes is renumbered 54.57 (1) and amended to read:

SB391,191,25 54.57 (1) Except as provided in sub. (2), in an action under this chapter that affects a minor child, a court may not grant to a parent of the child minor visitation or physical placement rights with the child minor if the parent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of the child's minor's other parent, and the conviction has not been reversed, set aside or vacated.

SB391, s. 379 Section 379. 880.157 (2) of the statutes is renumbered 54.57 (2) and amended to read:

SB391,192,6 54.57 (2) Subsection (1) does not apply if the court determines by clear and convincing evidence that visitation or periods of physical placement would be in the best interests of the child minor. The court shall consider the wishes of the child minor in making the determination.

SB391, s. 380 Section 380. 880.16 of the statutes is repealed.

SB391, s. 381 Section 381. 880.17 of the statutes is renumbered 54.54 and amended to read:

SB391,192,16 54.54 Successor guardian. (1) Appointment. When If a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor guardian. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this chapter for an original appointment of a guardian.

SB391,192,21 (2) Notice. If the appointment under sub. (1) is made without hearing, the successor guardian shall provide notice to the ward and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor guardian. The notice shall be served personally or by mail not later than 10 days after the appointment.

SB391, s. 382 Section 382. 880.173 (title) of the statutes is repealed.

SB391, s. 383 Section 383. 880.173 (1) of the statutes is renumbered 54.20 (2) (h) and amended to read:

SB391,193,11 54.20 (2) (h) A guardian of the estate If appointed under this chapter for a married person may ward, exercise with the approval of the court, except as limited under s. 880.37, any management and control right over the marital property or property other than marital property and any right in the business affairs which that the married person ward could exercise under ch. 766 if the person were not determined under s. 880.12 to be a proper subject for guardianship. Under this section, a guardian may ward were not an individual found incompetent, consent to act together in or join in any transaction for which consent or joinder of both spouses is required, or may execute under s. 766.58 a marital property agreement with the other ward's spouse or, if appointed for a ward who intends to marry, with the ward's intended spouse, but may not make, amend or revoke a will.

SB391, s. 384 Section 384. 880.173 (2) of the statutes is repealed.

SB391, s. 385 Section 385. 880.175 (title) of the statutes is repealed.

SB391, s. 386 Section 386. 880.175 of the statutes is renumbered 54.20 (2) (b) and amended to read:

SB391,194,2 54.20 (2) (b) Upon petition by the guardian, a parent, the spouse, any issue or next of kin of any person, assets of the person may, in the discretion of the court and upon its order, after such notice as the court may require, be transferred Transfer assets of the ward to the trustee or trustees of an any existing revocable living trust created by the person for the benefit of that the ward has created for himself or herself and those dependent upon the person for support any dependents, or, if the ward is a minor, to the trustee or trustees of a any trust created for the exclusive benefit of the person, if a minor, which ward that distributes to him or her at age 18 or 21, or, if the ward dies before age 18 or 21, to his or her estate, or as he or she appoints if he or she dies prior to age 18 or 21 the ward has appointed by a written instrument that is executed after the ward attains age 14.

SB391, s. 387 Section 387. 880.18 (title) of the statutes is renumbered 54.60 (title).

SB391, s. 388 Section 388. 880.18 of the statutes is renumbered 54.60 (1) and amended to read:

SB391,194,11 54.60 (1) Inventory required. When a The guardian of the estate has been appointed an inventory shall be made in the same manner and subject to the same requirements as are provided for the inventory of a decedent's estate. An appraisal of all or any part of the ward's estate shall be made when ordered by the court prepare an inventory that lists all of the ward's income and assets, including interests in property and any marital property interest, regardless of how the asset is titled.

SB391, s. 389 Section 389. 880.19 (title) of the statutes is repealed.

SB391, s. 390 Section 390. 880.19 (1) (title) of the statutes is repealed.

SB391, s. 391 Section 391. 880.19 (1) of the statutes is renumbered 54.19 (1) and amended to read:

SB391,195,2 54.19 (1) The guardian of the estate shall take Take possession of all of the ward's real and personal property, and of any rents, income, issues and benefits therefrom, whether accruing before or after the guardian's appointment from the property, and of the any proceeds arising from the sale, mortgage, lease, or exchange thereof of the property and prepare an inventory of these. Subject to such this possession, the title of all such estate the income and assets of the ward and to the increment and proceeds thereof shall be of the income and assets of the ward in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to account for it faithfully, to perform all other duties required of the guardian by law and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto.

SB391, s. 392 Section 392. 880.19 (2) (title) of the statutes is repealed.

SB391, s. 393 Section 393. 880.19 (2) (a) of the statutes is renumbered 54.20 (1) (intro.) and amended to read:

SB391,195,17 54.20 (1) Standard. (intro.) The In exercising the powers under this section, the guardian of the estate may, without the approval of the court, retain any real or personal property possessed by the ward at the time of appointment of the guardian or subsequently acquired by the ward by gift or inheritance without regard to ch. 881, so long as such retention constitutes the exercise of shall use the judgment and care under the circumstances then prevailing, which that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to including the permanent, rather than speculative, disposition of their funds, considering and consideration of the probable income as well as the probable and safety of their capital. In addition, in exercising powers and duties under this section, the guardian of the estate shall consider, consistent with the functional limitations of the ward, all of the following:

SB391, s. 394 Section 394. 880.19 (2) (b) of the statutes is renumbered 54.20 (3) (f) and amended to read:

SB391,196,2 54.20 (3) (f) The guardian of the estate may, with the approval of the court, after such notice as the court directs, retain Retain any real or personal property possessed by that the ward at the time of the appointment of the possesses when the guardian or subsequently acquired by is appointed or that the ward acquires by gift or inheritance for such period of time as shall be designated in the order of the court approving such retention, without regard to ch. 881 during the guardian's appointment.

SB391, s. 395 Section 395. 880.19 (3) (title) of the statutes is repealed.

SB391, s. 396 Section 396. 880.19 (3) of the statutes is renumbered 54.20 (2) (k) and amended to read:

SB391,196,9 54.20 (2) (k) In all cases where in which the court deems it determines that it is advantageous to continue the business of a ward, such business may be continued by the guardian of the estate on such continue the business on any terms and conditions as may be specified in the order of the court.

SB391, s. 397 Section 397. 880.19 (4) (title) of the statutes is repealed.

SB391, s. 398 Section 398. 880.19 (4) (a) of the statutes is renumbered 54.20 (3) (h) and amended to read:

SB391,196,16 54.20 (3) (h) The guardian of the estate may, without approval of the court, invest Invest and reinvest the proceeds of sale of any guardianship assets of the ward and any of the ward's other moneys in the guardian's possession in accordance with ch. 881.

SB391, s. 399 Section 399. 880.19 (4) (b) of the statutes is renumbered 54.20 (3) (i) and amended to read:

SB391,196,24 54.20 (3) (i) The guardian of the estate may, with the approval of the court, after Notwithstanding ch. 881, after such notice as the court directs, and subject to ch. 786, invest the proceeds of sale of any guardianship assets of the ward and any of the ward's other moneys in the guardian's possession in such the real or personal property as the court determines that is determined by the court to be in the best interests of the guardianship estate, without regard to ch. 881 of the ward.

SB391, s. 400 Section 400. 880.19 (4) (c) of the statutes is renumbered 54.18 (3) (a) and amended to read:

SB391,197,4 54.18 (3) (a) No guardian shall lend guardianship Lend funds of the ward to himself or herself.

SB391, s. 401 Section 401. 880.19 (5) (title) of the statutes is repealed.

SB391, s. 402 Section 402. 880.19 (5) (a) of the statutes is renumbered 54.20 (3) (g) and amended to read:

SB391,197,10 54.20 (3) (g) The guardian of the estate may, without approval of the court, sell Subject to ch. 786, sell any property asset of the guardianship estate acquired by the guardian pursuant to sub. (4) ward at fair market value.

SB391, s. 403 Section 403. 880.19 (5) (b) of the statutes is renumbered 54.22 and amended to read:

SB391,197,22 54.22 Petition for authority to sell, mortgage, pledge, lease, or exchange ward's property. The court, on the application petition of the guardian of the estate or of any other person interested in the estate of any a ward, after such notice if any, as any notice that the court directs, may authorize or require the guardian to sell, mortgage, pledge, lease, or exchange any property of the guardianship estate of the ward upon such terms as the court may order, subject to ch. 786, for the purpose of paying the ward's debts, providing for the ward's care, maintenance, and education and the care, maintenance , and education of the ward's dependents, investing the proceeds, or for any other purpose which that is in the best interest of the ward.

SB391, s. 404 Section 404. 880.19 (5) (c) of the statutes is renumbered 54.18 (3) (c) and amended to read:

SB391,198,4 54.18 (3) (c) No guardian shall purchase Purchase property of the ward, unless sold at public sale except at fair market value, subject to ch. 786, and with the approval of the court, and then only if the guardian is a spouse, parent, child, brother or sister of the ward or is a cotenant with the ward in the property.

SB391, s. 405 Section 405. 880.19 (5) (d) of the statutes is repealed.

SB391, s. 406 Section 406. 880.19 (6) of the statutes is repealed.

SB391, s. 407 Section 407. 880.191 (title) of the statutes is repealed.

SB391, s. 408 Section 408. 880.191 (1) of the statutes is renumbered 54.60 (7) and amended to read:

SB391,198,20 54.60 (7) Verification, examination in court. Every guardian of the estate shall verify by the guardian's oath to the best of the guardian's information and belief that every inventory required of the guardian and verification shall be to the effect that the inventory is true of of the estate includes all property which belongs to his or her decedent's estate or his or her ward, which has come to the guardian's possession or knowledge, and that upon diligent inquiry the guardian has not been able to discover any property belonging to the estate or ward which is not included therein income and assets of the ward. The court, at the request of any party interested, or on its own motion, may examine the guardian of the estate on oath in relation thereto, as to the inventory or in relation to any supposed omission from the inventory.

SB391, s. 409 Section 409. 880.191 (2) of the statutes is renumbered 54.60 (8) and amended to read:

SB391,199,3 54.60 (8) Citation to file inventory and to account. If any guardian neglects to file the inventory or account when required by law, the circuit judge court shall call the guardian's attention of the guardian of the estate to the neglect. If the guardian still neglects of the estate continues to neglect his or her duty in the premises, the court shall order the guardian of the estate to file the inventory, and the costs may be adjudged against the guardian of the estate.

SB391, s. 410 Section 410. 880.192 of the statutes is repealed.

SB391, s. 411 Section 411. 880.195 of the statutes is renumbered 54.625 and amended to read:

SB391,199,18 54.625 Transfer of Menominees guardianship funds to trust of a Menominee. The circuit court which that has appointed a guardian of the estate of any minor or individual found incompetent who is a legally enrolled member of the Menominee Indian tribe, as defined in s. 49.385, or a lawful distributee thereof, as defined in s. 54.850 (3), of the member may direct the guardian to transfer the assets in the guardian's possession of the minor or individual found incompetent in the guardian's possession to the trustees of the trust created by the secretary of interior or his or her delegate which that receives property of the minors or incompetents individuals found incompetent that is transferred from the United States or any agency thereof as provided by P.L. 83-399, as amended, and the assets shall thereafter be held, administered, and distributed in accordance with the terms and conditions of the trust.

SB391, s. 412 Section 412. 880.21 of the statutes is repealed.

SB391, s. 413 Section 413. 880.215 of the statutes is renumbered 54.47 and amended to read:

SB391,200,8 54.47 Lis pendens, void contracts. A certified copy of the petition and order for hearing provided for in ss. 880.07 54.34 and 880.08 54.38 may be filed in the office of the register of deeds for the county; and if. If a guardian shall be is appointed upon such application after a hearing on the petition and if the court's order includes a finding that the ward may not make contracts, all contracts, except for necessaries at reasonable prices, and all gifts, sales, and transfers of property made by such insane or incompetent person or spendthrift, the ward after the filing of a certified copy of such petition and the order as aforesaid, shall be void. The validity of a contract made by a person under limited guardianship is not void, however, unless the determination is made by the court in its finding under s. 880.33 (3) that the ward is incapable of exercising the power to make contracts are void, unless notified by the guardian in writing.

SB391, s. 414 Section 414. 880.22 (title) of the statutes is repealed.

SB391, s. 415 Section 415. 880.22 (1) (title) of the statutes is repealed.

SB391, s. 416 Section 416. 880.22 (1) of the statutes is renumbered 54.19 (7) and amended to read:

SB391,200,18 54.19 (7) Every general guardian shall With respect to claims, pay the just legally enforceable debts of the ward out of, including by filing tax returns and paying any taxes owed,from the ward's personal estate and the income of the ward's real estate, if sufficient, and if not, then out of the ward's real estate upon selling the same as provided by law. But a temporary guardian shall pay the debts of his or her ward only on order of the court and assets.

SB391, s. 417 Section 417. 880.22 (2) (title) of the statutes is repealed.

SB391, s. 418 Section 418. 880.22 (2) of the statutes is renumbered 54.20 (2) (L) and amended to read:

SB391,201,7 54.20 (2) (L) The guardian or a creditor of any ward may apply Apply to the court for adjustment of any claims against the ward incurred prior to before entry of the order appointing the guardian or the filing of a lis pendens as provided in s. 880.215 54.47. The court shall by order fix the time and place it will adjust claims and the time within which all claims must shall be presented or be barred. Notice of the time and place so fixed and limited these times and the place shall be given by publication as in estates of decedents; and all statutes relating to claims against and in favor of estates of decedents provided in s. 879.05 (4), and ch. 859 generally shall apply. As in the settlement of estates of deceased persons, after After the court has made the order, no action or proceeding may be commenced or maintained in any court against the ward upon any claim of over which the circuit court has jurisdiction.

SB391, s. 419 Section 419. 880.23 (title) of the statutes is repealed.

SB391, s. 420 Section 420. 880.23 of the statutes is renumbered 54.20 (3) (j) and amended to read:

SB391,201,16 54.20 (3) (j) The guardian shall settle Settle all claims and accounts of the ward and may demand, sue for, collect and receive all debts and claims for damages due him or her, or may, with the approval of the circuit court, compound and discharge the same, and shall appear for and represent his or her the ward in all actions and proceedings except where those for which another person is appointed for that purpose.

SB391, s. 421 Section 421. 880.24 (title) of the statutes is repealed.

SB391, s. 422 Section 422. 880.24 (1) of the statutes is repealed.

SB391, s. 423 Section 423. 880.24 (2) of the statutes is renumbered 54.42 (4) and amended to read:

SB391,201,25 54.42 (4) Ward's Right to payment of expenses in contesting proceedings. When If a guardian is appointed, the court may shall, if the court determines it reasonable, allow reasonable payment from the ward's income or assets of expenses incurred by the ward in contesting the appointment. These expenses are payable before other attorney or guardian ad litem fees.

SB391, s. 424 Section 424. 880.24 (3) (title) of the statutes is renumbered 54.46 (3) (title) and amended to read:

SB391,202,3 54.46 (3) (title) Fees and costs of petitioner.

SB391, s. 425 Section 425. 880.24 (3) (a) (intro.) of the statutes is renumbered 54.46 (3) (a) (intro.) and amended to read:

SB391,202,11 54.46 (3) (a) Petitioner's attorney fees and costs. (intro.) Except as provided in par. (b), when If a guardian is appointed, the court shall award from the ward's estate income and assets payment of the petitioner's reasonable attorney fees and costs, including those fees and costs, if any, related to protective placement of the ward, unless the court finds, after considering all of the following, that it would be inequitable to do so: