SB391: Bill Text

Under current law, when a guardian is proposed to be appointed for a ward on the ground of alleged incompetency, a physician or psychologist, or both, must furnish a written statement, based on an examination, concerning the proposed ward's mental condition. The proposed ward must be informed that his or her statements may be used as a basis for a finding of incompetency and for an order for protective services, including the involuntary administration of psychotropic medication, and that he or she may remain silent. The statement must be provided to the proposed ward and his or her guardian ad litem and attorney.

The bill requires that the physician or psychologist examining the proposed ward furnish a report, instead of a statement, stating his or her professional opinion regarding the presence and likely duration of any medical or other condition causing the proposed ward's incapacity. The petitioner must provide a copy of the report to the petitioner's attorney, if any, as well as to the proposed ward and his or her counsel and guardian ad litem. Either the guardian ad litem or the physician or psychologist must inform the proposed ward that, absent a court order, he or she may refuse to participate in the examination. The court must consider the recency of any such report in determining its accuracy and the weight to be given to it. The bill also authorizes submitting a petition to the court to order the proposed ward to submit to an examination and permits access by the physician or psychologist to the proposed ward's patient health care records and mental health treatment records.

Notice

Current law specifies differing requirements for provision of notice, time limits for service of notice, and required recipients of notice for the appointment of a guardian for an individual on the basis of incompetency, spendthriftiness, and minority.

The bill requires that a notice be in writing and specifies requirements and standards for the giving of notice. The bill requires that, for all notices of proposed guardian appointment on the basis of incompetency or spendthriftiness, or for rehearings, the petitioner provide notice to the proposed ward and existing guardian, if any, and to the proposed ward's counsel, guardian ad litem, presumptive adult heirs, any agent under a financial power of attorney or power of attorney for health care, custodian, and proposed guardian; any agency, charity, or foundation from which the proposed ward is receiving aid or assistance; and any other person required by the court. Special requirements apply for notice of hearing for the proposed guardianship of a minor and to a notice and hearing for temporary guardianships.

Appointment of guardian ad litem

Currently, a court must appoint a guardian ad litem when appointment of a guardian on the ground of incompetency is proposed, to protectively place or provide protective services to an individual or review a protective placement or protective services order, or to terminate a protective placement. An interested party in a proceeding, who appears as counsel in a proceeding, or who is a relative or representative of an interested person, may not be appointed as guardian ad litem in that proceeding. A guardian ad litem has numerous duties, including interviewing the proposed ward and explaining the hearing procedure, right to counsel, and right to request or continue a limited guardianship; advising the proposed ward of his or her rights; and presenting evidence concerning the proposed ward's best interests.

The bill expands the circumstances under which a court must appoint a guardian ad litem to include whenever a petition is brought for appointment of a guardian, to review the scope of guardianship, to expand an order of guardianship, to review incompetency and terminate a guardianship, and to review the conduct of a guardian, and any other time that a court determines it necessary. The bill expands the prohibition on appointment of an interested person, as defined in the bill, or a relative or representative of an interested person, from appointment as guardian ad litem in any proceeding that involves the same ward. The bill also expands duties of the guardian ad litem, including requiring that the guardian ad litem interview the proposed guardian, any proposed standby guardian, and any other person seeking appointment as guardian and report to the court concerning the fitness of each individual interviewed; review any power of attorney for health care or financial power of attorney executed by the proposed ward and any other advance planning for financial and health care decision making of the proposed ward; interview any agent under such a power of attorney; inform the court if the proposed ward or ward requests representation by counsel; and attend all court proceedings related to the guardianship.

Rights of the proposed ward

Currently, a proposed ward has the right to counsel, the right to a trial by jury if requested at least 72 hours before the hearing, the right to present and cross-examine witnesses, the right to receipt of the physician's or psychologist's report 96 hours in advance of the hearing, and the right to secure an independent medical or psychological evaluation. A court must appoint a guardian ad litem and require attorney representation if requested, if the involuntary administration of psychotropic medication is proposed, if the proposed ward is opposed to the guardianship, or if the interests of justice require it. If a guardian is appointed, a court may allow payment of reasonable expenses incurred by the ward in contesting the appointment.

The bill expands these rights to wards (for reviews of guardianships and other matters) and provides to the proposed ward or ward the rights to be present at any hearing regarding the guardianship and to have any such hearing conducted in a location and manner that is accessible to the proposed ward. The bill allows a request for a jury trial to be made at least 48 hours before a hearing. The bill clarifies that expenses incurred by the ward in contesting the appointment are payable from the ward's income or assets before other attorney or guardian ad litem fees.

Appointment of guardian; determination of incompetence

Under current law, a court may appoint a guardian to have care, custody, and control of, or to manage the estate of, an individual who is determined by the court to be incompetent, a spendthrift, or a minor. The standard for a finding of incompetency includes substantial incapability of managing one's property or caring for oneself by reason of infirmities of aging, developmental disabilities, or other like incapacities; physical disability without mental incapacity is insufficient to establish incompetence.

The bill changes the standard for a finding of incompetence and appointment of a guardian of the person or a guardian of the estate, or both, for an individual, to authorize the finding and appointment only if the court finds, by clear and convincing evidence, that the individual is aged at least 17 years and nine months; that (for purposes of appointment of a guardian of the person) because of an impairment, as defined in the bill, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety; and that (for purposes of appointment of a guardian of the estate) because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that the property will be dissipated, the individual is unable to provide for his or her support, or the individual is unable to prevent financial exploitation. Further, the individual's need for assistance in decision making or communication must be unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, or other means that the individual will accept. Unless the proposed ward is unable to communicate decisions effectively in any way, this determination may not be based on mere old age, eccentricity, poor judgment, or physical disability.

The bill requires that, in appointing a guardian, declaring incompetence of the individual to exercise certain rights, or in determining the powers that are appropriate for a guardian to exercise, the court consider numerous matters, including the guardian ad litem report; the medical or psychological report and any other evaluation; whether the proposed ward has engaged in any advance planning for financial and health care decision making; whether appointment of a guardian is the least restrictive means, as defined in the bill, to provide for the individual's need; and the preferences of the individual with regard to personal needs or property management. The court also must determine if additional medical, psychological, social, vocational, or educational evaluation is necessary to make an informed decision concerning the individual's competency to exercise legal rights. The court must authorize a guardian to exercise only necessary powers and to exercise them in a manner that is appropriate and that constitutes the least restrictive form of intervention.

Exceptions to appointment of guardian

Currently, if a minor or an individual who is found incompetent is, except for his or her incapacity, entitled to have personal property of $10,000 or less, a court, without requiring the appointment of a guardian, may order the property be deposited in a bank or other financial institution or invested, make payment to the natural guardian or person having custody of the minor, make payment to the minor, or make payment to the person with actual or legal custody of the individual found incompetent or to the person providing for the care and maintenance of the individual found incompetent. Similar provisions apply for possession by a minor or individual found incompetent of $5,000 or less from an estate. The bill increases to $20,000 the dollar limitation on personal property for these types of dispositions.

Nomination of guardian

Currently, a court must consider nominations for guardian that are made by any interested person, by a minor over 14 years, by a parent in a will, and by an individual for himself or herself in an anticipatory document. The court must also consider the opinions of an individual who is alleged to be incompetent and of the members of the individual's family, potential conflicts of interest, the appointment of an individual's agent under a power of attorney for health care, and whether a nonprofit corporation is qualified to serve as guardian. The court must appoint one or both parents, if suitable and willing, of a minor or person with developmental disabilities or other like incapacity. No person, except a nonprofit corporation, may accept guardianship of the person of more than five adult wards who are unrelated to the person, unless, up to a limit of ten, the additional guardianships are approved by DHFS under rules promulgated by DHFS under the laws relating to protective placement.

The bill requires, unless the court finds that the appointment is not in the proposed ward's best interests, that the court appoint, as guardian of the estate, an agent under a proposed ward's financial power of attorney; as guardian of the person, the agent under a proposed ward's power of attorney for health care; and as guardian, one or both parents of a minor, or an individual with developmental disability or with serious and persistent mental illness, as defined in the bill. The bill limits the power of a parent to nominate by will a guardian of the person or guardian of the estate for the parent's minor child if the court finds that the appointment is not in the minor's best interests. A private nonprofit corporation or an unincorporated association that is approved by the court may be appointed as guardian if no suitable individual is available and if DHFS, under rules promulgated under the guardianship laws, finds the corporation or association suitable. The bill limits the number of adult wards for whom an individual may have guardianship to five adult wards who are unrelated to the individual, unless the limitation is waived by a court, and eliminates restrictions on the number of adult wards for which a nonprofit corporation or unincorporated association may accept guardianship. At least 96 hours before the hearing the proposed guardian must submit to the court a sworn and notarized statement as to whether, among other things, the proposed guardian is currently charged with or has been convicted of a crime, has filed for or received protection under the federal bankruptcy laws, has had a professional license suspended or revoked, or is listed on the caregiver abuse registry.

Hearing

Under current law, a hearing on a petition for guardianship must be open unless the proposed ward or his or her counsel moves that it be closed. If closed, only certain persons may be present.

This bill requires that each hearing under the guardianship laws be closed unless the proposed ward or his or her counsel moves that it be open. The bill requires that petitions for guardianship, except for temporary guardianship and petitions for protectively placed individuals in certain facilities, be heard within 90 days after they are filed; that court determinations of incompetency or spendthriftiness be made by clear and convincing evidence; that the proposed guardian and any proposed standby guardian be physically present at the hearing unless excused by the court or unless the court permits their attendance by telephone; and that an adult proposed ward attend the hearing unless the guardian ad litem, under certain standards, waives attendance. If the proposed ward is unable to attend the hearing because he or she resides in a facility or because of physical inaccessibility or a lack of transportation, and the proposed ward, guardian ad litem, advocate counsel, or other interested person so requests, the court must hold the hearing in a place where the proposed ward may attend. A court that finds a proposed guardian to be inappropriate must require another petition proposing a suitable guardian, set a date for a subsequent hearing, and require the guardian ad litem to investigate the suitability of a new proposed guardian.

Disposition of petition

Currently, if a proposed ward has executed a power of attorney for health care, the court, in a determination of incompetency, may find that the power of attorney should remain in effect and, if so, must limit the power of the guardian from making health care decisions for the ward that the agent under the power of attorney may make, unless the guardian is also the agent. The bill requires that such a health care power of attorney remain in effect and permits a court to revoke it or limit the power of the agent only for good cause shown. Unless the court makes a revocation or limitation, the guardian is prohibited from making health care decisions for the ward that may be made by the agent.

Currently, when a guardian is appointed, the court must award from the ward's estate payment of the petitioner's reasonable attorney fees and costs, including those related to protective placement, unless the court finds it inequitable to do so after considering the petitioner's interest in the matter, including a conflict of interest, the ability of the ward's estate to pay the fees and costs, whether the guardianship was contested, and any other relevant factor. This award may not be made if the ward had engaged in advance planning (by, among other things, executing a financial power of attorney) to avoid guardianship. The bill eliminates payment, from the ward's income and assets, of the costs of a protective placement and changes a finding that the ward had engaged in advance planning for financial health care decision making to be a factor in awarding payment of the petitioner's reasonable attorney fees and costs, rather than a prohibition on that payment.

Currently, the court may require a bond from the person appointed guardian of the estate of a ward and may require a "blanket bond" from a county institutional employee who is appointed a guardian for numerous residents of county facilities. The bill requires that the court order specify the bond amount, prohibits requiring a bond for the guardian of the person of the ward, and eliminates the authority to require "blanket bonds."

The bill clarifies the grounds under which a court must dismiss a petition for guardianship. If a guardian is appointed, the bill specifies the joint decision making powers of any coguardians appointed; specifies that any financial power of attorney executed by the proposed ward remains in effect unless, only for good cause shown, it may be revoked or the agent's powers limited, and prohibits the guardian from making decisions for the ward that may be made by the agent; specifies that the county in which the action is pending for the guardianship proceeding is the county that is liable for guardian ad litem fees; and specifies circumstances in which the proposed ward is not liable for fees due his or her legal counsel.

Involuntary administration of psychotropic medication

Under current law relating to guardianship, a petition for appointment of a guardian may allege that the proposed ward is not competent to refuse psychotropic medication and that the medication is, under several criteria, necessary as a protective service. "Not competent to refuse psychotropic medication" is defined to mean that, because of chronic mental illness and after advantages and disadvantages of and alternatives to accepting psychotropic medication have been explained to an individual, he or she is incapable of expressing an understanding of the advantages and disadvantages or is substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives in order to make an informed choice about acceptance or refusal. If, at hearing, the court finds that the individual is not competent to refuse psychotropic medication and that the medication is necessary, the court must appoint a guardian to consent to or refuse the medication on behalf of the individual and order development of a treatment plan for the person. The relevant county department must at least annually review and evaluate the individual's status and, if appropriate, recommend discharge or change in the treatment plan. The court also must annually appoint a guardian ad litem to review the county department's evaluations, inform the individual and his or her guardian of certain rights, and file a report with the court. The court must order an independent evaluation and a hearing to continue, modify, or terminate the guardianship, if requested or on the court's own motion. If the individual substantially fails to comply with the treatment plan and if certain conditions are met, the court may authorize the guardian to consent to the involuntary administration of psychotropic medication to the individual.

For purposes of the guardianship laws, the bill defines "psychotropic medication" and establishes a standard for the power of a guardian to give informed consent (subject to the power of an agent under any power of attorney for health care of the ward) to the ward's voluntary receipt of psychotropic medication.

The bill clarifies that a guardian may consent to the involuntary administration of psychotropic medication only under a court order under the laws relating to protective placement and protective services. Under these laws, the bill establishes an exclusive procedure for involuntary administration of psychotropic medication as a protective service to an individual who has been protectively placed. Under this procedure, a petition for involuntary administration of psychotropic medication must meet all requirements for a protective services petition and also allege the condition, past behavior, and numerous other matters relating to the individual's competence to refuse psychotropic medication. A guardian ad litem must be appointed for the individual and must report to the court his or her conclusions concerning the allegations, and the court must appoint legal counsel on behalf of the individual. If requested, the individual may have an independent medical or psychological evaluation that is relevant to his or her competency to refuse the medication, the truth of the petition's allegations, and whether involuntary administration is in the individual's best interests. After hearing, the court may authorize a guardian to consent to involuntary administration of psychotropic medication to a ward as a protective service, if the court or jury finds that, by clear and convincing evidence, the requirements for the involuntary administration are met. If the court issues such an order, the order must specify the methods of involuntary administration to which the guardian may consent; require the presence of certain medical personnel when administered; require the maintenance of records concerning the methods of administration used; and require development of a treatment plan. The bill specifies procedures for noncompliance with the order, requires annual review of the order, and requires performance of annual review of the status of the individual by the relevant county department. Further, the bill requires the court to appoint a guardian ad litem after receipt of the annual county department report and specifies responsibilities of the guardian ad litem with respect to the ward. The bill requires the court that issued the order for involuntary administration of psychotropic medication annually to review reports of the county department and the guardian ad litem and order either a summary hearing or full due process hearing, after which the court must terminate, modify, or order continuation of the order.

Duties and powers of a guardian; limitations

Currently, no guardian may lend guardianship funds to himself or herself and a guardian is limited in purchasing property of the guardian's ward. A guardian must pay just debts of the ward from the ward's estate and its income.

The bill specifies in detail numerous powers and duties of a guardian (either a guardian of the person or a guardian of the estate) and clarifies that a guardian's powers are limited to those authorized by statute or court order, that a ward retains all rights that are not assigned to the guardian or otherwise limited by statute, and that a guardian's powers are limited to those necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention. Under the bill, a guardian may not lend the ward's funds to another unless the court first approves the terms, rate of interest, and any requirement for security, and may purchase property of the ward only at fair market value and with the approval of the court. The requirement to pay legally enforceable debts of the ward, including by filing tax returns and paying taxes owed is, under the bill, made a duty of a guardian of the estate.

Duties and powers of a guardian of the estate

Currently, although the title to the ward's estate remains the ward's, the guardian of the estate must take possession of and protect and preserve the ward's property; rents, income, and other benefits from the property; and any proceeds arising from the sale or other actions to the property. The bill specifies numerous duties of the guardian of the estate, and requires that the guardian of the estate, after following any applicable requirements concerning petitioning the court for the authority to sell, mortgage, pledge, lease, or exchange the ward's property, perform these duties so as to provide the ward with the greatest amount of independence and self-determination with respect to property management in light of the ward's functional level, understanding, and appreciation of his or her functional limitations and in light of the ward's personal wishes and preferences.

Currently, in exercising powers, the guardian of the estate must use the judgment and care exercised by persons of prudence, discretion, and intelligence in the management of their own affairs. Currently, after submittal of a petition and under court order, assets of a ward may be transferred to the trustee of an existing revocable living trust for the benefit of the ward or dependents or to the trustee of a trust for the benefit of a minor ward or, if the minor dies, to his or her estate. A guardian of the estate appointed for a married ward may exercise, with court approval, management and control rights over marital or nonmarital property and the ward's business affairs, join in a transaction for which joinder of both spouses is required, or execute a marital property agreement, but not make, amend, or revoke a will. The guardian of the estate may also, if specified in the court's order, continue the business of a ward, and may apply to the court for adjustment of claims of the ward. The guardian of the estate may, with court approval, retain real or personal property of the ward or that the ward acquires by gift or inheritance. The guardian of the estate may, without court approval, do numerous things on behalf of the ward, including entering into contracts and applying for public and private benefits.

The bill requires that the guardian of the estate, in exercising powers, consider, consistent with the functional limitations of the ward, the ward's understanding of the harm that he or she is likely to suffer as the result of his or her inability to manage property and financial affairs, the ward's personal preferences and desires, and the least restrictive form of intervention for the ward. The bill requires that certain actions specified in current law and numerous others specified in the bill may be performed by the guardian of the estate with respect to the ward's income and assets only with the court's prior written approval following any petition and upon any notice and hearing that the court requires. Further, the bill specifies a detailed procedure that a guardian of the estate must follow in order to transfer any of a ward's assets to or for the benefit of another person. The bill also specifies numerous powers, in addition to those in current law, which the guardian of the estate may perform without first receiving the court's approval.

Duties and powers of guardian of the person

Under current law, a guardian of the person of a ward must annually report on the ward's condition to the court and the relevant county department, and must endeavor to secure necessary care or services on behalf of the ward. If a court finds that an individual for whom a determination of incompetency is proposed is not capable of understanding the objective of the elective process, the court may find the individual ineligible to register to vote or to vote in an election.

The bill requires that a guardian of the person endeavor to secure care or services that are in the ward's best interests by, among other things, regular inspection, in person, of the ward's condition, surroundings, and treatment; examination of the ward's patient health care records; and inquiry into alternatives to treatment for the ward if drastic or restrictive treatment is proposed.

The bill specifies that a guardian of the person has only those rights and powers that he or she is specifically authorized to exercise by statute, rule, or court order; any other right is retained by the ward, unless the ward has been declared by a court incompetent to exercise a right or the guardian of the person has been authorized by a court to exercise certain rights usually retained by the ward. The bill specifies numerous rights that are retained by individuals who are determined incompetent, specifies a proceeding in which a court may find, by clear and convincing evidence, that an individual has incapacity to exercise specified rights, including the right to register to vote or vote and the right to consent to organ donation. A guardian of the person may not exercise a right on behalf of a ward who is declared not competent to exercise that right, unless so authorized by a court. The bill specifies the standard under which a court may make this authorization, including the power to give informed consent, if in the ward's best interests, to voluntary or involuntary administration of psychotropic medication. Lastly, the bill specifies a standard that the guardian of the person must follow in exercising powers and duties delegated to the guardian of the person by a court.

Temporary guardianships

Currently, after considering a petition, a court may appoint a temporary guardian for a ward, including for a minor for a medical purpose, for 60 days and may extend the order for one additional 60-day period. The temporary guardian may perform duties concerning specific property or as ordered by the court. Statutory provisions concerning the powers and duties of guardians apply, except as limited by the court's order. The temporary guardian must report as directed by the court, account to the court at the termination of the temporary guardianship, and deliver the ward's estate to those entitled to it. Duties and powers of a temporary guardianship cease upon the appointment of a guardian, when a minor for whom a temporary guardianship attains the age of 18, or if the court determines that the ward's situation that was the cause of the temporary guardianship has ended.

The bill establishes a standard for the appointment of a temporary guardian; establishes procedures for appointment of a temporary guardian, including appointment of a guardian ad litem; provides for a rehearing on the issue of appointment of the temporary guardian, if requested; clarifies the duration of the temporary guardianship and the authority of the temporary guardian; and prohibits the temporary guardian from selling real estate or expending more than $2,000 unless authorized by the court.

Standby guardianships

Under current law, a person may at any time bring a petition for the appointment of a standby guardian of the person or estate of a minor or an individual found incompetent, to assume the duty and authority of guardianship on the death, incapacity, or resignation of the guardian. If appointed, the standby guardian has the powers and duties of the guardian and must notify the court upon assuming office.

The bill clarifies that a standby guardian of the person may be appointed for a spendthrift and that appointment of a standby guardian is effective upon the unwillingness or inability to act, resignation, or court's removal of the guardian, or during a period when the guardian is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. Under the bill, when a standby guardianship takes effect, the court must issue new letters of guardianship that specify that the standby guardianship is permanent or that specify the time period for a limited standby guardianship.

Termination of limited guardianship of property

Currently, upon petition, in a procedure separate from appointment of a guardian, a court may appoint a limited guardian of property, under which the limited guardian receives, manages, disburses, and accounts for property of the ward. Unless limited by a court, an adult ward under a limited guardian of property may receive and expend wages and other earnings and may contract under certain circumstances.

This bill eliminates the appointment of a limited guardian of property as a procedure separate from appointment of a guardian.

Post-appointment matters

Inventory

Currently, when a guardian of the estate is appointed, an inventory must be made of the ward's property under the same requirements as for the inventory of the estate of a decedent. The guardian of the estate must by oath verify that the inventory includes all the ward's property; the court may examine the guardian of the estate as to the inventory or any supposed omission. A court may order a guardian who neglects to file an inventory to do so.

The bill establishes requirements for information that the inventory must provide with respect to each asset of the ward and the time by which the guardian of the estate must file the initial inventory, specifies persons to whom the guardian of the estate must provide copies of the inventory and the fee due when the inventory is filed, and authorizes the court to order that the guardian of the estate appraise any or all of the ward's income and assets.

Accounts

Currently, every guardian except a corporate guardian must annually, before April 15, as specified by court order, or at any other time required by a court, file an account specifying the amount of the ward's property received and held or invested, the nature of the investment, receipts and expenditures, and any change in status of the surety on the guardian's bond. The guardian must produce for the court evidence of the ward's securities, deposits, and other investments. If the account is unsatisfactory, the court may appoint a guardian ad litem for the ward. The court may order any person entrusted by the guardian with part of the ward's estate to appear and render an account. Action by a court on an account is final only if notice is provided. If a guardian fails to file an account, the court may order the guardian to show cause for the failure and may issue a warrant. The guardian may be fined $50, or imprisoned up to 10 days, or both, if the court finds that failure, refusal, or neglect to file an account under court order is willful or inexcusable.

The bill makes exceptions to the requirement for annual submittal of an account, for waiver by a court, or for income and assets of a ward that do not exceed $20,000; the guardian must notify the court if the ward's income and assets exceed this amount. The bill eliminates the exception from filing for corporate guardians. The bill creates special requirements for annual accounts of married wards. Under the bill, an action by a court on an account is final only if the guardian first provides notice to the ward, any guardian ad litem of the ward, and any personal representative or special administrator of the estate of a deceased ward. For a guardian who fails to file the account as required by law or as ordered by the court, the court must direct that a copy of the court's order to the guardian to show cause be served on the guardian at least 20 days before the court-ordered court appearance date. The bill also increases the fine for guardian failure, refusal, or neglect to $250.

Procedure to expand an order of guardianship

The bill creates a procedure by which a guardian or other person may submit to a court a request for removal of rights from a ward and transfer of powers to the guardian in addition to those specified in the order of appointment. If, after notice is provided, no objection is submitted, the court may amend the order, but if an objection to the request is submitted, the court must hold a hearing for review of the ward's incompetency.

Review of incompetency and general termination of guardianship

Currently, a guardianship of an individual who is found incompetent continues during the life of the ward or until terminated by the court. Guardianship of a minor who is found incompetent is reviewed when the minor attains age 18. The court must conduct a hearing, including a jury trial if requested, if an adult ward or his or her guardian petitions for a review of incompetency. After a hearing or on its own motion, a court may terminate or modify the ward's guardianship. Termination of guardianship of the person occurs when a formerly minor ward attains age 18, unless the minor was found incompetent; a minor marries; or the court determines that the ward is competent. Termination of guardianship of the estate occurs under these same grounds and if the ward dies. In addition, the court may terminate a guardianship for a ward whose estate is depleted to below $5,000 if it is to the advantage of the ward to do so. For property of a nonresident ward in the possession of or due from a guardian appointed in this state, the court may, after receipt of a petition and provision of notice, order the property delivered to the ward's foreign guardian.

For a review of a ward's incompetency, the bill specifies time limits and procedures; requires the court to appoint a guardian ad litem, fix a time and place for hearing, and designate persons entitled to notice and the manner of giving notice; and specifies the right of the ward to counsel, including at county expense if the ward is indigent. For termination of a guardianship of the person, the bill clarifies that the guardianship does not terminate on attainment of age 18 years or marriage by a minor ward if the guardianship was ordered on the grounds of incompetency; and expands the grounds for termination of a guardianship of the person or a guardianship of the estate. For a depleted guardianship, the standard for depletion is increased to $20,000. If terminating the guardianship, the court is authorized to order the guardian to make appropriate financial arrangements for the burial or other disposition of the ward's remains. Alternatively, the court may continue the guardianship, but waive requirements for a bond for the guardian and waive or require an accounting by the guardian.

Final accounts

Currently, if a court terminates a guardianship or a guardian resigns, is removed, or dies, the guardian or the guardian's personal representative must render a final account to the court, the former ward, the successor guardian, or the deceased ward's personal representative. After approval of the account and the filing of receipts, the guardian must be discharged and the guardian's bond released. The guardian of an estate of not more than $1,000 must render an account only on termination of the guardian's guardianship or as ordered by the court. If a ward dies leaving an estate that may be settled under laws relating to summary settlement of small estates, the court may approve that summary settlement and distribution without appointing a personal representative.

For termination of a guardianship, the bill additionally authorizes final accounting by the guardian's special administrator and rendering of the account to the ward or the deceased ward's 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 personal representative or special administrator must give notice of termination and rendering of the final account to all interested persons, as defined in the bill, of the ward's estate. The bill increases to $20,000 the value of small estates of wards for which a final account need not be filed, unless ordered by a court, and requires the guardian to provide the court with a list of the ward's assets when the guardianship terminates, including at the death of the ward.

Review of conduct of guardian

The bill specifies that the court that appointed a guardian has continuing jurisdiction over the guardian, establishes numerous causes for court action against a guardian, establishes procedures and notice requirements for a hearing to review the guardian's conduct, and establishes remedies of the court. The bill authorizes a court to remove a paid guardian if changed circumstances indicate that a previously unavailable voluntary guardian is available to serve and that the change would be in the ward's best interest. The court may require the guardian to pay any costs of the proceeding to review the guardian's conduct and authorizes a ward who petitions for review to retain legal counsel and contract for the payment of fees.

Guardian compensation and reimbursement

The bill establishes conditions under which a guardian of the person or a guardian of the estate is entitled to compensation and to reimbursement for expenses, including factors that a court must use in deciding whether compensation is just and reasonable. The bill specifies that a court must approve compensation and reimbursement before payment is made but need not do so before charges are incurred.

Conservatorship

Under current law, any adult who believes that he or she is unable properly to manage his or her property or income may voluntarily apply to the circuit court of his or her county of residence for appointment of a conservator of the estate. At a hearing for such an appointment, the court must personally examine the applicant and, if satisfied that the applicant desires a conservator and that the nominated fiduciary is suitable, appoint the conservator and issue letters of conservatorship after the nominee files a bond. A conservator has the powers and duties of a guardian of the estate, and these powers cease if the court removes the conservator or the conservatee dies. Anyone may apply for termination of the conservatorship, for which the court must hold a hearing. Unless it is clearly shown that the conservatee is incompetent, the court must remove the conservator and order the property restored. However, the court may order continuation of the conservatorship or appointment of a successor conservator. Appointment of a conservator does not constitute evidence of competency or incompetency of the conservatee.

The bill authorizes an individual who is unwilling to manage his or her assets or income to apply for conservatorship and clarifies that a conservatee may make gifts of his or her assets, subject to the conservator's approval. However, if the individual has executed a financial power of attorney before conservatorship, that power of attorney remains in effect, unless revoked or limited by the court for good cause, and the conservator's authority is limited by the authority expressly granted to the agent under the power of attorney. The bill authorizes appointment of a standby conservator and specifies the standard for appointment of a standby conservator. The bill clarifies that a conservatorship may be terminated only by a court after hearing and specifies standards for termination. The bill also specifies actions by a conservator that constitute cause for his or her removal by a court. The bill requires that a final account of the former conservatee's income and assets be rendered if a court terminates a conservatorship or a conservator resigns, is removed, or dies.

Other provisions

The bill makes numerous additional changes to the laws related to guardianships and conservatorships.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB391, s. 1 Section 1. 6.03 (1) (a) of the statutes is amended to read:

SB391,20,5 6.03 (1) (a) Any person who is incapable of understanding the objective of the elective process or is under guardianship pursuant to the order of a court under ch. 880, except that when a person is under limited guardianship,, unless the court may determine has determined that the person is competent to exercise the right to vote;

SB391, s. 2 Section 2. 6.03 (3) of the statutes is amended to read:

SB391,21,13 6.03 (3) No person may be denied the right to register to vote or the right to vote by reason that the person is alleged to be incapable of understanding the objective of the elective process unless the person has been so adjudicated in a separate proceeding instituted for that purpose by an elector of the municipality in accordance with the procedures set forth in ch. 880 for determining incompetency incompetent in this state. If a determination of incompetency of the person has already been made, or if a determination of limited incompetency has been made which that does not include a specific finding that the subject is competent to exercise the right to vote, and a guardian or limited guardian has been appointed as a result of any such determination, then no determination of incapacity of understanding the objective of the elective process is required unless the guardianship is terminated or modified under s. 880.34 54.64.

SB391, s. 3 Section 3. 17.03 (6) of the statutes is amended to read:

SB391,21,18 17.03 (6) A competent tribunal voids the election or appointment; or adjudges the incumbent to be incapable of understanding the objective of the elective process; or places the incumbent under guardianship, or under limited guardianship unless the court finds that the incumbent is competent to exercise the right to vote.

SB391, s. 4 Section 4. 19.32 (1m) of the statutes is amended to read:

SB391,22,2 19.32 (1m) "Person authorized by the individual" means the parent, guardian, as defined in s. 48.02 (8), or legal custodian, as defined in s. 48.02 (11), of a child, as defined in s. 48.02 (2), the guardian, as defined in s. 880.01 (3), of an individual adjudged adjudicated incompetent , as defined in s. 880.01 (4) in this state, the personal representative or spouse of an individual who is deceased , or any person authorized, in writing, by the individual to exercise the rights granted under this section.

SB391, s. 5 Section 5. 29.024 (2u) of the statutes is created to read: