SB391: Bill Text

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:

SB391,222,14 54.40 (4) (f) If applicable, inform the court and petitioner's attorney or, if none, the petitioner that the proposed ward or alleged incompetent ward objects to a finding of incompetency, the present or proposed placement, or the recommendation of the guardian ad litem as to the proposed ward's or alleged incompetent's ward's best interests or that the proposed ward's or alleged incompetent's ward's position on these matters is ambiguous. If the guardian ad litem recommends that the hearing be held in a place other than a courtroom, the guardian ad litem shall provide the information under this paragraph as soon as possible.

SB391, s. 489 Section 489. 880.331 (4) (e) of the statutes is renumbered 54.40 (4) (i) and amended to read:

SB391,222,18 54.40 (4) (i) Present evidence concerning the best interests of the proposed ward or alleged incompetent ward, if necessary.

SB391, s. 490 Section 490. 880.331 (4) (f) of the statutes is renumbered 54.40 (4) (j) and amended to read:

SB391,222,22 54.40 (4) (j) Report to the court on any other relevant matter that the court requests.

SB391, s. 491 Section 491. 880.331 (5) (intro.) of the statutes is renumbered 55.195 (intro.) and amended to read:

SB391,223,4 55.195 Duties in of guardian ad litem for reviews. (intro.) In any review of a protective placement under s. 55.06 or of a protective service services order under s. 55.05, except as provided in s. 55.19 (2), the guardian ad litem shall do all of the following:

SB391, s. 492 Section 492. 880.331 (5) (a) of the statutes is renumbered 55.195 (1) and amended to read:

SB391,223,8 55.195 (1) Interview the ward to explain the review procedure, the right to an independent evaluation, the right to counsel, and the right to a hearing.

SB391, s. 493 Section 493. 880.331 (5) (b) of the statutes is renumbered 55.195 (2) and amended to read:

SB391,223,11 55.195 (2) Provide the information under par. (a) sub. (1) to the ward in writing.

SB391, s. 494 Section 494. 880.331 (5) (c) of the statutes is renumbered 55.195 (3) and amended to read:

SB391,223,15 55.195 (3) Secure Request that the court order an additional medical, psychological, or other evaluation of the ward, if necessary.

SB391, s. 495 Section 495. 880.331 (5) (d) of the statutes is renumbered 55.195 (4).

SB391, s. 496 Section 496. 880.331 (5) (e) of the statutes is renumbered 55.195 (5) and amended to read:

SB391,223,20 55.195 (5) Review the ward's condition, placement, and rights with the guardian.

SB391, s. 497 Section 497. 880.331 (5) (f) of the statutes is renumbered 55.195 (6) and amended to read:

SB391,224,2 55.195 (6) If relevant, report to the court that the ward objects to the finding of continuing incompetency, the present or proposed placement, the position of the guardian, or the recommendation of the guardian ad litem as to the best interests of the ward or if there is ambiguity about the ward's position on these matters.

SB391, s. 498 Section 498. 880.331 (5) (g) of the statutes is renumbered 55.195 (8).

SB391, s. 499 Section 499. 880.331 (6) of the statutes is renumbered 54.40 (5) and amended to read:

SB391,224,8 54.40 (5) Communication to a jury. In jury trials under this chapter or ch. 55 or 880, the court or guardian ad litem may tell the jury that the guardian ad litem represents the best interests of the proposed ward or alleged incompetent ward.

SB391, s. 500 Section 500. 880.331 (7) of the statutes is renumbered 54.40 (6) and amended to read:

SB391,224,24 54.40 (6) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates, even if counsel has been appointed for the proposed ward or alleged incompetent ward. The court may extend that appointment, or reappoint a guardian ad litem whose appointment under this section has terminated, by an order specifying the scope of responsibilities of the guardian ad litem. At any time, the guardian ad litem, any party, or the person individual for whom the appointment is made may request that the court terminate any extension or reappointment. The guardian ad litem may appeal, or may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal.

SB391, s. 501 Section 501. 880.331 (8) of the statutes is renumbered 54.74 and amended to read:

SB391,225,15 54.74 Compensation of guardian ad litem. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue, unless Unless the court otherwise directs or unless the guardian ad litem is appointed for a minor, in which case the compensation of the guardian ad litem shall be paid by the minor's parents or the county of venue as provided in s. 48.235 (8), the court shall order reasonable compensation to be paid to a guardian ad litem appointed under s. 54.40 (1) from the ward's income or assets, if sufficient, or, if insufficient, by the county of venue. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to a private attorneys attorney under s. 977.08 (4m) (b). The guardian ad litem shall receive compensation for performing all duties required under s. 54.40 (4) and for any other acts that are approved by the court and are reasonably necessary to promote the ward's best interests.

SB391, s. 502 Section 502. 880.34 (title) of the statutes is renumbered 54.64 (title) and amended to read:

SB391,225,19 54.64 (title) Duration Review of incompetency and termination of guardianship; review.

SB391, s. 503 Section 503. 880.34 (1) of the statutes is renumbered 54.64 (1) and amended to read:

SB391,226,3 54.64 (1) Duration. Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the incompetent, or ward, until terminated by the court, or as provided under sub. (3) or (4). Upon reaching the age of majority, an incompetent subject to guardianship under this chapter shall be reviewed by the court for the purpose of determining whether the guardianship should be continued or modified. The court shall make a specific finding of any rights under s. 880.33 (3) which the individual is competent to exercise at the time.

SB391, s. 504 Section 504. 880.34 (2) of the statutes is renumbered 54.64 (2) (d) and amended to read:

SB391,226,8 54.64 (2) (d) The court shall review and may terminate the guardianship of the person of an individual found incompetent upon marriage to any person who is not subject to a guardianship.

SB391, s. 505 Section 505. 880.34 (3) of the statutes is repealed.

SB391, s. 506 Section 506. 880.34 (4) of the statutes is renumbered 54.64 (2) (a) (intro.) and amended to read:

SB391,226,19 54.64 (2) (a) (intro.) A ward who is 18 years of age or older, any interested person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency. Upon such, to have the guardian discharged and a new guardian appointed, or to have the guardianship limited and specific rights restored. The petition may be filed at any time after 180 days after any previous hearing under s. 54.44, or at any time if the court determines that exigent circumstances, including presentation of new evidence, require a review. If a petition for review is filed, the court shall conduct do all of the following:

SB391,226,24 4. Conduct a hearing at which the ward shall be is present and shall have has the right to a jury trial, if demanded. The ward shall also have the right to counsel and the court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, counsel shall be provided at the expense of the ward's county of legal settlement.

SB391, s. 507 Section 507. 880.34 (5) of the statutes is renumbered 54.64 (2) (c) and amended to read:

SB391,227,5 54.64 (2) (c) After a hearing under sub. (4) par. (a) or on its own motion, a court may terminate or modify a the guardianship of an incompetent, including restoring certain of the ward's rights.

SB391, s. 508 Section 508. 880.34 (6) of the statutes is repealed.

SB391, s. 509 Section 509. 880.35 of the statutes is renumbered 54.15 (7) and amended to read:

SB391,227,16 54.15 (7) Nonprofit corporation as guardian Private nonprofit corporation or other entity. A private nonprofit corporation organized under ch. 181, 187, or 188 is qualified to act or an unincorporated association that is approved by the court may be appointed as guardian of the person or of the property estate or both, of an individual found to be in need of guardianship under s. 880.33, if a proposed ward, if no suitable individual is available as guardian and the department of health and family services, under rules established promulgated under ch. 55 this chapter, finds the corporation or association to be a suitable agency to perform such duties.

SB391, s. 510 Section 510. 880.36 (title) of the statutes is renumbered 54.52 (title).

SB391, s. 511 Section 511. 880.36 (1) of the statutes is renumbered 54.52 (1) and amended to read:

SB391,228,4 54.52 (1) A person may at any time bring a petition for the appointment of a standby guardian of the person or property or both estate of a minor or person found incompetent under s. 880.08 to assume the duty and authority of guardianship on the death, incapacity or resignation of the initially appointed guardian may be brought under this chapter at any time. A an individual who is determined under s. 54.10 to be incompetent, a minor, or a spendthrift, except that, as specified in s. 48.97 a petition for the appointment of a standby guardian of the person or property or both of a minor to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the minor's parent shall may be brought under s. 48.978.

SB391, s. 512 Section 512. 880.36 (2) of the statutes is renumbered 54.52 (2) and amended to read:

SB391,228,20 54.52 (2) At any hearing conducted under this section the court may designate one or more standby guardians of the person or property estate whose appointment shall become effective immediately upon the death, incapacity unwillingness, or inability to act, or resignation or court's removal of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian or the court is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby guardian shall be the same as those of the initially appointed guardian. The standby guardian shall receive a copy of the court order establishing or modifying the initial guardianship, and the order designating the standby guardian. Upon assuming office, the standby guardian shall so notify the court. Upon notification, the court shall issue new letters of guardianship that specify that the standby guardianship is permanent or that specify the time period for a limited standby guardianship.

SB391, s. 513 Section 513. 880.37 of the statutes is repealed.

SB391, s. 514 Section 514. 880.38 (title) of the statutes is renumbered 54.25 (title) and amended to read:

SB391,228,25 54.25 (title) Guardian Duties and powers of guardian of the person of incompetent.

SB391, s. 515 Section 515. 880.38 (1) of the statutes is repealed.

SB391, s. 516 Section 516. 880.38 (2) of the statutes is renumbered 54.25 (1) (b) (intro.) and amended to read:

SB391,229,6 54.25 (1) (b) (intro.) A guardian of the person shall endeavor Endeavor to secure any necessary care, or services or appropriate protective placement on behalf of for the ward. that are in the ward's best interests, based on all of the following:

SB391, s. 517 Section 517. 880.38 (3) of the statutes is renumbered 54.25 (1) (a) and amended to read:

SB391,229,18 54.25 (1) (a) A guardian of the person of an incompetent appointed under s. 880.33 shall make Make an annual report on the condition of the ward to the court that ordered the guardianship and to the county department designated under s. 55.02. That county department shall develop reporting requirements for the guardian of the person. The report shall include, but not be limited to, the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement of as to whether or not the ward is living in the least restrictive environment consistent with the needs of the ward. The guardian may fulfill the requirement under this subsection by submitting the report required under s. 55.06 (10).

SB391, s. 518 Section 518. 880.39 (title) of the statutes is repealed.

SB391, s. 519 Section 519. 880.39 of the statutes is renumbered 54.18 (4) and amended to read:

SB391,230,2 54.18 (4) Any A guardian of the person or of the estate is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

SB391, s. 520 Section 520. Subchapter II (title) of chapter 880 [precedes 880.60] of the statutes is repealed.

SB391, s. 521 Section 521. 880.60 of the statutes is renumbered 54.852, and 54.852 (1) (d) and (g), (10) (a) and (12), as renumbered, are amended to read:

SB391,230,8 54.852 (1) (d) "Guardian" Notwithstanding s. 54.01 (10), "guardian" means any fiduciary for the person or estate of a ward.