SB391: Bill Text

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SB391, s. 414 Section 414. 880.22 (title) of the statutes is repealed.

SB391, s. 415 Section 415. 880.22 (1) (title) of the statutes is repealed.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SB391, s. 417 Section 417. 880.22 (2) (title) of the statutes is repealed.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:

SB391, s. 426 Section 426. 880.24 (3) (a) 1. to 3. of the statutes are renumbered 54.46 (3) (a) 1. to 3.

SB391, s. 427 Section 427. 880.24 (3) (a) 4. of the statutes is renumbered 54.46 (3) (a) 5.

SB391, s. 428 Section 428. 880.24 (3) (b) of the statutes is renumbered 54.46 (3) (a) 4. and amended to read:

SB391,202,21 54.46 (3) (a) 4. If the court finds that Whether the ward had executed a durable power of attorney under s. 243.07 or a power of attorney for health care under s. 155.05 or had engaged in other advance planning to avoid guardianship, the court may not make the award specified in par. (a) for financial and health care decision making.

SB391, s. 429 Section 429. 880.245 of the statutes is renumbered 54.62 (6) and amended to read:

SB391,203,6 54.62 (6) Accounting by agent 3rd parties to guardian. The circuit court, upon the application of any If a guardian appointed by it a court so requests, the court may order any person who has been entrusted by the guardian with any part of the estate of a decedent or ward to appear before the court, and may require the person to render a full account, on oath, of any property or papers belonging to the estate which have come to the person's possession the income or assets and of his or her proceedings thereon action regarding the income or assets. If the person refuses to appear and render an account, the court may proceed against him or her as for contempt.

SB391, s. 430 Section 430. 880.25 (title) of the statutes is repealed.

SB391, s. 431 Section 431. 880.25 (1) of the statutes is renumbered 54.62 (1) and amended to read:

SB391,204,3 54.62 (1) Annual reports. Every Except as provided in sub. (3) or unless waived by a court, every guardian, except including a corporate guardian, shall, prior to April 15 of each year, file an account under oath specifying that specifies the amount of property the ward's assets or income received and held or invested by the guardian, the nature and manner of the investment, and the guardian's receipts and expenditures during the preceding calendar year. When ordered by the court, The court may order the guardian shall within 30 days to render and file, within 30 days, a like account for any shorter term less than a year. In lieu of the filing of these accounts before April 15 of each year, the court may, by appropriate order upon motion of the guardian, direct the guardian of an estate to thereafter render and file the annual accountings within 60 days after the anniversary date of the guardian's qualification as guardian, with the accounting period from the anniversary date of qualification to the ensuing annual anniversary date. When any guardian of a minor has custody of the ward and the care of the ward's education, the guardian's report shall state the time that the ward attended school during the time for which the account is rendered and the name of the school. The guardian shall also report any change in the status of the surety upon the guardian's bond. If the court determines it to be in the ward's best interests, the court may specify the persons to whom the guardian shall distribute copies of the account.

SB391, s. 432 Section 432. 880.25 (2) of the statutes is renumbered 54.62 (2) and amended to read:

SB391,204,13 54.62 (2) Display of assets. Upon rendering the account the guardian shall produce for examination by the court, or some by a person satisfactory to the court, evidence of all of the ward's securities, evidences of deposit depository accounts, and other investments reported, which shall be described in the account in sufficient detail so that they may be readily identified. It shall be ascertained The court or person satisfactory to the court shall ascertain whether the evidence of securities, evidences of deposit depository accounts, and other investments correspond with the account.

SB391, s. 433 Section 433. 880.25 (3) of the statutes is renumbered 54.66 (2) and amended to read:

SB391,204,22 54.66 (2) Small estates. When the whole estate of a ward or of several wards jointly, under the same guardianship, does not exceed $1,000 in value, the The guardian shall be required to render of a ward with a small estate, as specified in s. 54.62 (3) (a), need not file a final account only upon the termination of the guardian's guardianship, unless otherwise ordered by the court. The guardian shall instead provide the court with a list of the ward's assets that remain at the time the guardianship terminates, including at the death of the ward.

SB391, s. 434 Section 434. 880.25 (4) of the statutes is renumbered 54.62 (5) and amended to read:

SB391,205,8 54.62 (5) Examination of accounts. The account shall be promptly examined under the court's direction and if it as the court directs. If the account is not satisfactory it shall be examined on 8 days' notice and , the court shall make such order thereon order action as justice requires . Notice and shall direct that notice be provided to the guardian may be served personally or by certified mail as the court directs. When the examination of a guardian's account is upon notice . If notice is provided to the guardian under this subsection, the court may appoint a guardian ad litem of for the ward may be appointed.

SB391, s. 435 Section 435. 880.25 (5) of the statutes is renumbered 54.62 (7) (intro.) and amended to read:

SB391,205,13 54.62 (7) Notice of final action on an account. (intro.) No action by the court upon any on an account shall be is final unless it is upon the guardian first provides notice. to all of the following, as applicable:

SB391, s. 436 Section 436. 880.251 of the statutes is repealed.

SB391, s. 437 Section 437. 880.252 of the statutes is renumbered 54.62 (8) and amended to read:

SB391,206,7 54.62 (8) Accounts; failure of a guardian to file. If a guardian fails to file the guardian's account as required by law or ordered by the court, the court may, upon its own motion or upon the petition of any interested party interested, issue an order to the sheriff ordering, order the guardian to show cause before the court why the guardian should not immediately make and file the guardian's reports or accounts. The court shall direct that a copy of the order be served on the guardian at least 20 days before the date that the court has ordered the guardian to appear in court. If a guardian fails, neglects or refuses to make and file any report or account after having been cited by the court so to do so, or if the guardian fails to appear in court as directed by a citation issued under direction and by authority of the court, the court may, upon on its own motion or upon on the petition of any interested party, issue a warrant directed to the sheriff ordering that the guardian be brought before the court to show cause why the guardian should not be punished for contempt. If the court finds that the failure, refusal, or neglect is willful or inexcusable, the guardian may be fined not to exceed $50 $250 or imprisoned not to exceed 10 days or both.

SB391, s. 438 Section 438. 880.253 of the statutes is renumbered 54.62 (9) and amended to read:

SB391,206,14 54.62 (9) Formal accounting Accounting by guardians at any time. The judge court may at any time require an accounting by any guardian at a hearing, after providing notice to all interested persons, including sureties on the bond of a guardian. The sureties on a bond of a guardian may once in every 3-year period petition the court for such a hearing.

SB391, s. 439 Section 439. 880.26 (title) of the statutes is repealed.

SB391, s. 440 Section 440. 880.26 (1) (intro.) of the statutes is renumbered 54.64 (3) (intro.) and amended to read:

SB391,206,19 54.64 (3) Guardianship Termination of guardianship of the person. (intro.) A guardianship of the person shall terminate when if any of the following occurs:

SB391, s. 441 Section 441. 880.26 (1) (a) of the statutes is renumbered 54.64 (3) (c) and amended to read:

SB391,206,24 54.64 (3) (c) A formerly minor ward attains his or her majority, unless the minor is incompetent age 18, unless the guardianship was ordered on the grounds of incompetency.

SB391, s. 442 Section 442. 880.26 (1) (b) of the statutes is renumbered 54.64 (3) (d) and amended to read:

SB391,207,4 54.64 (3) (d) A minor ward lawfully whose guardianship was not ordered on the grounds of incompetency marries.

SB391, s. 443 Section 443. 880.26 (1) (c) of the statutes is renumbered 54.64 (3) (a) and amended to read:

SB391,207,10 54.64 (3) (a) The court adjudicates a former ward who was formerly found to be incompetent to be competent no longer incompetent or a ward who was formerly found to be a spendthrift to be capable of handling his or her income and assets, or terminates the guardianship under sub. (2) (d).

SB391, s. 444 Section 444. 880.26 (2) (intro.) of the statutes is renumbered 54.64 (4) (intro.) and amended to read:

SB391,207,14 54.64 (4) Guardianship Termination of guardianship of the estate. (intro.) A guardianship of the estate shall terminate when if any of the following occurs:

SB391, s. 445 Section 445. 880.26 (2) (a) of the statutes is renumbered 54.64 (4) (c) and amended to read:

SB391,207,17 54.64 (4) (c) A formerly minor ward attains his or her majority age 18.

SB391, s. 446 Section 446. 880.26 (2) (b) of the statutes is renumbered 54.64 (4) (d) and amended to read:

SB391,207,21 54.64 (4) (d) A minor ward lawfully whose guardianship was not ordered on the grounds of incompetency marries and the court approves the termination.

SB391, s. 447 Section 447. 880.26 (2) (c) of the statutes is renumbered 54.64 (4) (a) and amended to read:

SB391,208,2 54.64 (4) (a) The court adjudicates a former ward who was formerly found to be incompetent or a spendthrift to be no longer incompetent or a ward who was formerly found to be a spendthrift to be capable of handling his or her property income and assets.

SB391, s. 448 Section 448. 880.26 (2) (d) of the statutes is renumbered 54.64 (4) (e) and amended to read:

SB391,208,6 54.64 (4) (e) A ward dies, except when the estate can be settled as provided by s. 880.28 54.66 (4).

SB391, s. 449 Section 449. 880.26 (3) of the statutes is renumbered 54.64 (5) (intro.) and amended to read:

SB391,208,13 54.64 (5) Depleted guardianships guardianship. (intro.) When the If a court determines that the estate income and assets of the a ward is below $5,000 do not exceed the amount specified in s. 867.03 (1g) and are reduced to a point where it is to the advantage of the ward to dispense with the guardianship, the court may terminate do one of the following:

SB391,208,22 (a) Terminate the guardianship and authorize order disposition of the remaining assets as provided by s. 880.04 (2) 54.12 (1). The court, as a part of the disposition, may order a suitable amount paid to the county treasurer under order of the court or reserved in the guardianship to assure the ward a decent burial, a marker and care for the grave. In the case of an insolvent guardianship, the court may order an amount not exceeding $400 reserved in the guardianship or paid to the county treasurer under order of the court to assure the ward a decent burial the guardian to make appropriate financial arrangements for the burial or other disposition of the remains of the ward.

SB391, s. 450 Section 450. 880.27 of the statutes is renumbered 54.66 (1) and amended to read:

SB391,209,12 54.66 (1) Settlement of accounts Render final account. Upon termination of If a court terminates a guardianship, or upon resignation, removal or death of a guardian, such resigns, is removed, or dies, the guardian or the guardian's personal representative or special administrator shall forthwith promptly render the guardian's a final account to the court and to the ward or former ward, the successor guardian, or the deceased ward's personal representative as the case may be. Upon approval of the account and filing proper receipts the guardian shall be discharged and the guardian's bond released or special administrator, as appropriate. If the ward dies and the guardian and the deceased ward's personal representative or special administrator are the same person, the deceased ward's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the ward's estate.

SB391, s. 451 Section 451. 880.28 of the statutes is renumbered 54.66 (4) and amended to read:

SB391,209,18 54.66 (4) Summary settlement of small estates. When If a ward dies leaving an estate which that can be settled summarily under s. 867.01, the court may approve such the settlement and distribution by the guardian, under the procedures of s. 867.01 without the necessity of appointing a personal representative.

SB391, s. 452 Section 452. 880.29 of the statutes is renumbered 54.64 (6) and amended to read:

SB391,210,8 54.64 (6) Delivery of property to foreign guardian in another state. When property of a nonresident ward is in the possession of or due from a guardian or personal representative appointed in this state, the appointing court may order such the property delivered to the foreign guardian upon filing appointed in the state of the nonresident ward after a verified petition, accompanied by a copy of his or her the nonresident guardian's appointment and bond, authenticated so as to be admissible in evidence, is filed with the court and upon after 10 days' notice is provided to the resident guardian or personal representative. Such The petition shall be denied if granting it shall appear appears to be against the interests of the ward. The Any receipt of obtained from the foreign nonresident guardian for the property so delivered shall be taken and filed with the other papers in the proceeding, and a certified copy thereof of the receipt shall be sent to the court which that appointed such the nonresident guardian.

SB391, s. 453 Section 453. 880.295 of the statutes is repealed.

SB391, s. 454 Section 454. 880.31 (title) of the statutes is repealed.

SB391, s. 455 Section 455. 880.31 (1) and (7) of the statutes are consolidated, renumbered 54.76 (1) and amended to read:

SB391,210,22 54.76 (1) Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her property assets or income may voluntarily apply to the circuit court of the county of his or her residence for appointment of a conservator of the estate. Upon receipt of the application, the court shall fix a time and place for hearing the application and may direct to whom, including presumptive heirs, and in what manner notice of the hearing shall be given . (7) If an application for conservatorship is filed, the to a potential recipient of the notice, unless the potential recipient has waived receipt. The fee prescribed in s. 814.66 (1) (b) shall be paid at the time of the filing of the inventory or other documents setting forth the value of the estate assets and income.

SB391, s. 456 Section 456. 880.31 (2) of the statutes is renumbered 54.76 (2) and amended to read:

SB391,211,7 54.76 (2) At the time of such hearing for appointment of a conservator, the applicant shall be personally examined by the court and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated is and any proposed standby conservator are suitable, the court may appoint the nominee as conservator and, if applicable, designate the proposed standby conservator as standby conservator and issue letters of conservatorship to the nominee upon the filing of after he or she files a bond in the amount fixed by the court.

SB391, s. 457 Section 457. 880.31 (3) of the statutes is renumbered 54.76 (3) and amended to read:

SB391,211,15 54.76 (3) A Except as provided in sub. (3g), a conservator shall have has all the powers and duties of a guardian of the property of an incompetent person. The conservator's powers shall cease upon being removed by the court or upon death of the person whose estate is being conserved estate. An individual whose income and assets are under conservatorship may make gifts of his or her income and assets, subject to approval of the conservator.

SB391, s. 458 Section 458. 880.31 (4) and (5) of the statutes are consolidated, renumbered 54.76 (4) and amended to read:

SB391,212,11 54.76 (4) Any person, including an individual whose estate is income and assets are under conservatorship, may apply to the court at any time for termination thereof of the conservatorship. Upon such receipt of the application, the court shall fix a time and place for hearing and may direct that 10 days' notice by mail be given to the person's individual's guardian , if any, of the person or agent under a power of attorney for health care, the conservator, any standby conservator, and the presumptive adult heirs of the applicant. Upon such individual whose income and assets are under conservatorship. A potential recipient of the notice may waive its receipt. At the hearing, the court shall, unless it is clearly shown that the applicant individual whose income and assets are under conservatorship is incompetent, remove the conservator and order the property income and assets restored to the applicant, or if the applicant so desires and the nominee is suitable, the court may appoint a successor conservator. (5) individual. If, however, the court shall upon such hearing determine determines at the hearing that the person individual whose estate is income and assets are administered by a conservator may be is incapable of handling his or her estate income and assets, the court shall order the conservatorship continued, or, if the applicant so desires and the a nominee is suitable, the court may appoint a successor conservator. A conservatorship may only be terminated under a hearing under this subsection.

SB391, s. 459 Section 459. 880.31 (6) of the statutes is renumbered 54.76 (5) and amended to read:

SB391,212,16 54.76 (5) Appointment of a conservator shall not be does not constitute evidence of the competency or incompetency of the person individual whose estate is income and assets are being administered.

SB391, s. 460 Section 460. 880.32 of the statutes is renumbered 45.55 and amended to read:

SB391,213,8 45.55 Notes and mortgages of minor veterans. Notwithstanding any provision of this chapter or any other law to the contrary, any minor who served in the active armed forces of the United States at any time after August 27, 1940, and the husband or wife of such a minor may execute, in his or her own right, notes or mortgages, as defined in s. 851.15, the payment of which is guaranteed or insured by the U.S. department of veterans affairs or the federal housing administrator under the servicemen's readjustment act of 1944 or, the national housing act, or any acts supplementary thereto or amendatory thereof supplementing or amending these acts. In connection with such these transactions, such the minors may sell, release or convey such the mortgaged property and litigate or settle controversies arising therefrom, including the execution of releases, deeds, and other necessary papers or instruments. Such The notes, mortgages, releases, deeds and other necessary papers or instruments when so executed shall are not be subject to avoidance by such the minor or the husband or wife of such the minor upon either or both of them attaining the age of 18 because of the minority of either or both of them at the time of the execution thereof.

SB391, s. 461 Section 461. 880.33 (title) of the statutes is repealed.

SB391, s. 462 Section 462. 880.33 (1) of the statutes is renumbered 54.36 (1) and amended to read:

SB391,214,14 54.36 Examination of proposed ward. (1) Whenever it is proposed to appoint a guardian on the ground of a proposed ward's alleged incompetency, a licensed physician or licensed psychologist, or both, shall examine the proposed ward and furnish a written statement concerning the mental condition report stating the physician's or psychologist's professional opinion regarding the presence and likely duration of any medical or other condition causing incapacity of the proposed ward, based upon examination. The privilege under s. 905.04 shall does not apply to this the statement. A The petitioner shall provide a copy of the statement shall be provided report to the proposed ward, or his or her counsel, the guardian ad litem, and the petitioner's attorney, if any. Prior to the examination, under this subsection, of a person alleged to be not competent to refuse psychotropic medication under s. 880.07 (1m), the person shall be informed that his or her on which the report is based, the guardian ad litem, physician, or psychologist shall inform the proposed ward that statements made by the proposed ward may be used as a basis for a finding of incompetency and an order for protective services, including psychotropic medication. The person shall also be informed, that he or she has a right to remain silent refuse to participate in the examination, absent a court order, or speak to the physician or psychologist and that the examiner physician or psychologist is required to report to the court even if the person remains silent proposed ward does not speak to the physician or psychologist. The issuance of such a warning to the person proposed ward prior to each examination establishes a presumption that the person proposed ward understands that he or she need not speak to the examiner. physician or psychologist. Nothing in this section prohibits the use of a report by a physician or psychologist that is based on an examination of the proposed ward by the physician or psychologist before filing the petition for appointment of a guardian, but the court will consider the recency of the report in determining whether the report sufficiently describes the proposed ward's current state and in determining the weight to be given to the report.

SB391, s. 463 Section 463. 880.33 (2) (a) 1. of the statutes is renumbered 54.42 (1) (a) (intro.) and amended to read:

SB391,215,11 54.42 (1) (a) (intro.) The proposed ward or ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48 (1) and shall in addition require representation by full legal counsel whenever the petition contains the allegations under s. 880.07 (1m) or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney or guardian ad litem, except that if the petition contains the allegations under s. 880.07 (1m) and if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be determined under s. 756.06 (2) (b). The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal. if any of the following occurs: