SB391: Bill Text

SB391, s. 439 Section 439. 880.26 (title) of the statutes is repealed.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

SB391, s. 464 Section 464. 880.33 (2) (a) 2. of the statutes is renumbered 54.42 (1) (c) and amended to read:

SB391,215,19 54.42 (1) (c) If the person requests but is par. (a) 1., 2., or 3. applies but the proposed ward or ward is unable to obtain legal counsel, the court shall appoint legal counsel. If the person is represented by counsel appointed under s. 977.08 in a proceeding for a protective placement under s. 55.06 or for the appointment of a guardian under s. 880.07 (1m), the court shall order the counsel appointed under s. 977.08 to represent the person.

SB391, s. 465 Section 465. 880.33 (2) (a) 3. of the statutes is renumbered 54.46 (3) (b) and amended to read:

SB391,216,3 54.46 (3) (b) Guardian ad litem and defense fees for indigents; liability. If the person proposed ward is an adult who is indigent, the county of legal settlement shall be in which venue lies for the guardianship proceeding is the county liable for any fees due the guardian ad litem and, if counsel was not appointed under s. 977.08, for any legal fees due the person's proposed ward's legal counsel. If the person is a minor, the person's parents or the county of legal settlement shall be liable for any fees due the guardian ad litem as provided in s. 48.235 (8).

SB391, s. 466 Section 466. 880.33 (2) (b) of the statutes is renumbered 54.42 (3) and amended to read:

SB391,216,12 54.42 (3) Right to independent examination. If requested by the proposed ward, ward, or anyone on the proposed ward's or ward's behalf, the proposed ward or ward has the right at his or her own expense, or if indigent at the expense of the county where the petition is filed heard on the merits, to secure an independent medical or psychological examination relevant to the issue involved in any hearing under this chapter, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

SB391, s. 467 Section 467. 880.33 (2) (d) of the statutes is repealed.

SB391, s. 468 Section 468. 880.33 (2) (e) of the statutes is renumbered 54.44 (5) and amended to read:

SB391,216,20 54.44 (5) Privacy of hearing. Every hearing on a petition under s. 880.07 (1m) under this chapter shall be open closed, unless the proposed ward or his or her attorney acting with the proposed ward's consent moves that it be closed open. If the hearing is closed, only persons in interest, including representatives of providers of service and interested persons, their attorneys , and witnesses, may be present.

SB391, s. 469 Section 469. 880.33 (3) of the statutes is repealed.

SB391, s. 470 Section 470. 880.33 (4) of the statutes is repealed.

SB391, s. 471 Section 471. 880.33 (4m) and (4r) of the statutes are repealed.

SB391, s. 472 Section 472. 880.33 (5) of the statutes is renumbered 54.15 (1) and amended to read:

SB391,217,11 54.15 (1) Opinions of proposed ward and family. In appointing a guardian, the The court shall take into consideration the opinions of the alleged incompetent proposed ward and of the members of the his or her family as to what is in the best interests of the proposed incompetent ward. However, the best interests of the proposed incompetent ward shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision those best interests. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest. If the proposed incompetent has executed a power of attorney for health care under ch. 155, the court shall give consideration to the appointment of the health care agent for the individual as the individual's guardian.

SB391, s. 473 Section 473. 880.33 (5m) of the statutes is renumbered 54.15 (9) and amended to read:

SB391,217,25 54.15 (9) Limitation on number of wards of guardian. No person, except a nonprofit corporation approved by the department of health and family services under s. 880.35, who has individual may have guardianship of the person of more than 5 or more adult wards who are unrelated to the person may accept appointment individual, except that a court may, under circumstances that the court determines are appropriate, waive this limitation to authorize appointment of the individual as guardian of the person of another adult ward unrelated to the person, unless approved by the department. No such person may accept appointment as guardian of more than 10 such additional adult wards who are unrelated to the person individual. A corporation or association that is approved by the department under sub. (7) is not limited in the number of adult wards for which the corporation or association may accept appointment by a court as guardian.

SB391, s. 474 Section 474. 880.33 (6) of the statutes is renumbered 54.75 and amended to read:

SB391,218,6 54.75 Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 55.06 (17) 51.30 (5). The fact that a person has been found incompetent is accessible to any person who demonstrates to the custodian of the records a need for that information.

SB391, s. 475 Section 475. 880.33 (7) of the statutes is renumbered 54.48 and amended to read:

SB391,218,13 54.48 Protective placement and protective services. A finding of incompetency and appointment of a guardian under this subchapter chapter is not grounds for involuntary protective placement. Such or the provision of protective services. Protective placement and the provision of protective services may be made only in accordance with s. 55.06 ch. 55.

SB391, s. 476 Section 476. 880.33 (8) (intro.) of the statutes is repealed.

SB391, s. 477 Section 477. 880.33 (8) (a) of the statutes is repealed.

SB391, s. 478 Section 478. 880.33 (8) (b) of the statutes is renumbered 54.46 (2) (b) and amended to read:

SB391,219,4 54.46 (2) (b) Power of attorney for health care. If the proposed incompetent has ward executed a power of attorney for health care under ch. 155, find that before a finding of incompetency and appointment of a guardian is made for the ward under this chapter, the power of attorney for health care instrument should remain remains in effect. If the court so finds, the court shall so order and shall, except that the court may, only for good cause shown, revoke the power of attorney for health care or limit the power of the guardian to make those health care decisions for the ward that are not to be made by the health care authority of the agent under the terms of the power of attorney for health care instrument. Unless the court makes this revocation or limitation, the ward's guardian may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent under those terms.

SB391, s. 479 Section 479. 880.33 (9) of the statutes is renumbered 54.25 (2) (c) 1. g. and amended to read:

SB391,220,2 54.25 (2) (c) 1. g. All the rights and privileges afforded a proposed incompetent under this section shall be given to any person who is alleged to be ineligible to register to vote or to vote in an election by reason that such person is incapable of understanding the objective of the elective process. The determination of the court shall be limited to a finding that the elector is either eligible or ineligible The right to register to vote or to vote in an election by reason that the person is or is not capable, if the court finds that the individual is incapable of understanding the objective of the elective process. Also, in accordance with s. 6.03 (3), any elector of a municipality may petition the circuit court for a determination that an individual residing in the municipality is incapable of understanding the objective of the elective process and thereby ineligible to register to vote or to vote in an election. This determination shall be made by the court in accordance with the procedures specified in this paragraph. If a petition is filed under this subd. 1. g., the finding of the court shall be limited to a determination as to voting eligibility. The appointment of a guardian is not required for an individual whose sole limitation is ineligibility to vote. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, or 6.93 with the responsibility for determining challenges to registration and voting which that may be directed against that elector. The determination may be reviewed as provided in s. 880.34 (4) and (5) 54.64 (2) and any subsequent determination of the court shall be likewise communicated by the clerk of court.

SB391, s. 480 Section 480. 880.331 (title) of the statutes is renumbered 54.40 (title) and amended to read:

SB391,220,6 54.40 (title) Guardian ad litem in incompetency cases; appointment; duties; termination.

SB391, s. 481 Section 481. 880.331 (1) of the statutes is renumbered 54.40 (1) and amended to read:

SB391,220,19 54.40 (1) Appointment. The court shall appoint a guardian ad litem whenever it is proposed that the court appoint a guardian on the ground of incompetency under s. 880.33, when a petition for appointment of a guardian is brought under s. 54.34, to review the scope of a guardianship, to protectively place a person or order protective services under s. 55.06, to review any protective placement or protective service order under s. 55.06 or, to terminate a protective placement under s. 55.06, to expand an order of guardianship under s. 54.63, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, to expand an order of guardianship under s. 54.3, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, or at any other time that the court determines it is necessary.

SB391, s. 482 Section 482. 880.331 (2) of the statutes is renumbered 54.40 (2) and amended to read:

SB391,221,2 54.40 (2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state and in compliance with SCR chapter 36. No person one who is an interested party person in a proceeding, appears as counsel in a proceeding on behalf of any party, or is a relative or representative of an interested party person may be appointed guardian ad litem in that proceeding or in any other proceeding that involves the same proposed ward or ward.

SB391, s. 483 Section 483. 880.331 (3) of the statutes is renumbered 54.40 (3) and amended to read:

SB391,221,12 54.40 (3) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the proposed ward or alleged incompetent ward as to guardianship, protective placement, and protective services. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be is not bound by, the wishes of the proposed ward or alleged incompetent ward or the positions of others as to the best interests of the proposed ward or alleged incompetent ward. The guardian ad litem has none of the rights or duties of a general guardian.

SB391, s. 484 Section 484. 880.331 (4) (intro.) of the statutes is renumbered 54.40 (4) (intro.).

SB391, s. 485 Section 485. 880.331 (4) (a) of the statutes is renumbered 54.40 (4) (a) and amended to read:

SB391,221,19 54.40 (4) (a) Interview the proposed ward or alleged incompetent ward and explain the contents of the petition, the applicable hearing procedure, the right to counsel, and the right to request or continue a limited guardianship.

SB391, s. 486 Section 486. 880.331 (4) (b) of the statutes is renumbered 54.40 (4) (b) and amended to read:

SB391,221,25 54.40 (4) (b) Advise the proposed ward or alleged incompetent ward, both orally and in writing, of that person's rights to be present at the hearing, to a jury trial, to an appeal, to counsel, and to an independent medical or psychological examination on the issue of competency, at county expense if the person is indigent.

SB391, s. 487 Section 487. 880.331 (4) (c) of the statutes is renumbered 54.40 (4) (e) and amended to read:

SB391,222,4 54.40 (4) (e) Request that the court order additional medical, psychological, or other evaluation, if necessary.

SB391, s. 488 Section 488. 880.331 (4) (d) of the statutes is renumbered 54.40 (4) (f) and amended to read: