SB706: Bill Text

SB706,24,24 4. Whether appointment of the proposed guardian as the child's guardian is in the best interests of the child.

SB706,25,2 (f) Disposition. At the conclusion of the hearing under par. (d), the court shall grant one of the following dispositions:

SB706,25,6 1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that appointment of the proposed guardian as the child's guardian is not in the best interests of the child.

SB706,25,15 2. A disposition ordering that the proposed guardian be appointed as the child's full guardian under sub. (2) (c) 1., limited guardian under sub. (2) (c) 2., or temporary guardian under sub. (2) (c) 3., if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that such an appointment is in the best interests of the child. The disposition may also designate an amount of support to be paid by the child's parents and, subject to sub. (12), may include reasonable rules of parental visitation. If the court orders the proposed guardian to be appointed as the child's guardian, the court shall issue letters of guardianship to the guardian.

SB706,25,24 (4) Temporary guardianships. (a) Duration and extent of authority. The court may appoint a temporary guardian for a child for a period not to exceed 180 days, except that the court may extend this period for good cause shown for one additional 180-day period. The court's determination and order appointing the temporary guardian shall specify the authority of the temporary guardian, which shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for temporary guardianship. The authority of the temporary guardian is limited to the performance of those acts stated in the order of appointment.

SB706,26,3 (b) Procedures for appointment. A petition for the appointment of a temporary guardian shall be heard in the same manner and is subject to the same requirements as provided in this section for the appointment of a full or limited guardian.

SB706,26,8 (c) Cessation of powers. The duties and powers of the temporary guardian cease upon the expiration of the time period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the temporary guardianship. Upon cessation of a temporary guardianship, the temporary guardian shall file with the court any report that the court requires.

SB706,26,15 (5) Emergency guardianships. (a) Duration and extent of authority. The court may appoint an emergency guardian for a child for a period not to exceed 60 days. The court's determination and order appointing the emergency guardian shall specify the authority of the emergency guardian and shall be limited to those acts that are reasonably related to the reasons for the appointment that are specified in the petition for emergency guardianship. The authority of the emergency guardian is limited to the performance of those acts stated in the order of appointment.

SB706,26,17 (b) Procedures for appointment. All of the following procedures apply to the appointment of an emergency guardian:

SB706,26,21 1. Any person may petition for the appointment of an emergency guardian for a child. The petition shall contain the information required under sub. (3) (a) and shall specify the reasons for the appointment of an emergency guardian and the powers requested for the emergency guardian.

SB706,27,8 2. The petitioner shall give notice of the petition and of the time and place of the hearing under subd. 4. to the child, if 12 years of age or over, the child's guardian ad litem, and the child's counsel, if any; the child's parents, guardian, and legal custodian; and the person nominated as emergency guardian. The notice and a copy of the petition shall be served as soon after the filing of the petition as possible, shall be served by the most practical means possible, including personal service or service by electronic mail or telephone, and shall include notice of the right to request the appointment of counsel or to retain counsel of the party's own choosing and of the right to petition for reconsideration or modification of the emergency guardianship under subd. 5. If the petitioner serves notice of the hearing after the hearing is conducted and the court has entered an order, the petitioner shall include the court's order with the notice of the hearing.

SB706,27,17 3. The court shall appoint a guardian ad litem for the child as soon as possible after the filing of the petition. The court shall attempt to appoint the guardian ad litem before the hearing on the petition, but may appoint the guardian ad litem after the hearing if the court finds that exigent circumstances require the immediate appointment of an emergency guardian. The guardian ad litem shall attempt to meet with the child before the hearing or as soon as is practicable after the hearing, but not later than 3 calendar days after the hearing. The guardian ad litem shall report to the court on the advisability of the emergency guardianship at the hearing or not later than 7 calendar days after the hearing.

SB706,27,23 4. The court shall hold a hearing on the emergency guardianship petition as soon as possible after the filing of the petition or, for good cause shown, may issue a temporary order appointing an emergency guardian without a hearing which shall remain in effect until a hearing is held on the emergency guardianship petition. If appointed prior to the hearing, the guardian ad litem shall attend the hearing in person or by telephone.

SB706,28,2 5. If the court appoints an emergency guardian, any person specified in subd. 2. may petition for reconsideration or modification of the emergency guardianship and the court shall hold a rehearing on the issue of appointment of the emergency guardian within 30 calendar days after the filing of the petition.

SB706,28,7 (c) Immunity. An emergency guardian of a child is immune from civil liability for his or her acts or omissions in performing the duties of emergency guardianship if he or she performs the duties in good faith, in the best interests of the child, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

SB706,28,12 (d) Cessation of powers. The duties and powers of the emergency guardian cease upon the expiration of the time period specified in par. (a), or the termination as determined by the court of the situation of the child that was the cause of the emergency guardianship. Upon cessation of an emergency guardianship, the emergency guardian shall file with the court any report that the court requires.

SB706,28,18 (6) Standby guardianship. (a) Petition. A person may at any time bring a petition for the appointment of a standby guardian of a child, except that, as specified in s. 48.978, a petition for the appointment of a standby guardian of the person or estate or both of a child to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the child's parent may be brought under s. 48.978.

SB706,29,6 (b) Appointment. At any hearing conducted under this subsection the court may designate one or more standby guardians whose appointment shall become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian 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 of 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 temporary standby guardianship.

SB706,29,14 (7) Successor guardian. (a) Appointment. If a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor guardian. The court may, upon request of any interested person or on its own motion, direct that the petition or motion for the appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a guardian.

SB706,29,20 (b) Notice. If the appointment under par. (a) is made without hearing, the successor guardian shall provide notice to all interested persons of the appointment, the right to request the appointment of counsel or to retain counsel of the interested person's own choosing, and the right to petition for reconsideration of the appointment of the successor guardian. The notice shall be served personally or by mail not later than 10 days after the appointment.

SB706,30,4 (8) Modification of guardianship order. (a) Any interested person or other person approved by the court may request a modification of a guardianship order entered under this subsection or sub. (3) (f) 2. or the court may, on its own motion, propose such a modification. The request or motion shall set forth in detail the nature of the proposed modification, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification would be in the best interests of the child, and shall allege any other information that affects the advisability of the court's disposition.

SB706,30,9 (b) The court shall hold a hearing on the matter prior to any modification of the guardianship order if the request or motion indicates that new information is available that affects the advisability of the court's guardianship order, unless written waivers of objections to the modification are signed by all interested persons and the court approves the waivers.

SB706,30,16 (c) If a hearing is to be held, the court shall notify all interested persons at least 7 days prior to the hearing of the date, place, and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a modification if, at the hearing, the court finds that the person proposing the modification has proved by clear and convincing evidence that there has been a substantial change in circumstances and determines that a modification would be in the best interests of the child.

SB706,30,19 (9) Review of conduct of guardian. (a) Continuing jurisdiction of court. The court that appointed the guardian of a child has continuing jurisdiction over the guardian.

SB706,30,21 (b) Cause for court action against a guardian. The court may impose a remedy under par. (d) if a guardian of a child does any of the following:

SB706,30,22 1. Abuses or neglects the child or knowingly permits others to do so.

SB706,30,24 2. Fails to disclose information specified in sub. (3) (c) that would have prevented appointment of the person as guardian.

SB706,31,2 3. Otherwise fails to perform any of his or her duties as a guardian under s. 48.023.

SB706,31,11 (c) Procedure. Any interested person or other person approved by the court may file a petition requesting a review of the conduct of a guardian or the court, on its own motion, may propose such a review. The request or motion shall allege facts sufficient to show cause under par. (b) for the court to impose a remedy under par. (d). The court shall hold a hearing on the request or motion not more than 30 days after the filing of the request or proposal. Not less than 7 days before the date of the hearing, the court shall cause notice of the hearing to be provided to the child, his or her or parents, the guardian, and any other persons as determined by the court. A copy of the request or motion shall be attached to the notice.

SB706,31,14 (d) Remedies of the court. If after hearing the court finds by clear and convincing evidence cause as specified in par. (b) to impose a remedy under this paragraph, the court may do any of the following:

SB706,31,15 1. Remove the guardian.

SB706,31,16 2. Remove the guardian and appoint a successor guardian.

SB706,31,19 3. Enter any other order that may be necessary or appropriate to compel the guardian to carry out the guardian's duties, including an order setting reasonable rules of visitation with the child.

SB706,31,20 4. Modify the duties and authority of the guardian.

SB706,31,23 5. Require the guardian to pay any costs of the proceeding, including costs of service and attorney fees, if the court finds that the guardian's conduct was egregious.

SB706,32,3 (10) Termination of guardianship. (a) Term of guardianship. A guardianship under this section shall continue until the child attains the age of 18 years unless any of the following occurs:

SB706,32,4 1. The guardianship is for a lesser period of time and that time has expired.

SB706,32,5 2. The child marries.

SB706,32,6 3. The child dies.

SB706,32,8 4. The child's residence changes from this state to another state and a guardian is appointed in the new state of residence.

SB706,32,10 5. The guardian dies, or resigns and the resignation is accepted by the court, and a successor guardian is not appointed.

SB706,32,12 6. The guardian is removed for cause under sub. (9) (d) 1. and a successor guardian is not appointed.

SB706,32,14 7. The court terminates the guardianship on the request of a parent of the child under par. (b).

SB706,32,21 (b) Termination on request of parent. 1. A parent of the child may file a petition requesting that a guardianship order entered under sub. (3) (f) 2. (4), (5), or (6) be terminated. The petition shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is fit, willing, and able to carry out the duties of a guardian, and that termination of the guardianship would be in the best interests of the child.

SB706,32,24 2. The court shall hold a hearing on the petition unless written waivers of objections to termination of the guardianship are signed by all interested persons and the court approves the waivers.

SB706,33,10 3. If a hearing is to be held, by no less than 7 days before the date of the hearing the court shall cause notice of the hearing to be provided to the child, his or her parents, the guardian, and any other persons as determined by the court. A copy of the request or proposal shall be attached to the notice. The court shall terminate the guardianship if the court finds that the parent has proved by clear and convincing evidence that he or she has remedied the unfitness, unwillingness, or inability to provide for the care, custody, and control of the child or other compelling facts and circumstances on which the guardianship was granted and that he or she is now fit, willing, and able to carry out the duties of a guardian and the court determines that termination of the guardianship would be in the best interests of the child.

SB706, s. 23 Section 23. 48.977 (2) (a) of the statutes is amended to read:

SB706,33,21 48.977 (2) (a) That the child has been adjudged to be in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9), (10), (10m), (11), or (11m) or 938.13 (4) or (12), or has been adjudged delinquent under s. 938.12, and been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.34, 938.345, 938.357, 938.363, or 938.365 or, that the child has been so adjudged and placement of the child in the home of a guardian under this section has been recommended under s. 48.33 (1) or 938.33 (1), or that the child has had a guardian of the person appointed for him or her under ch. 54, 2007 stats., or ch. 880, 2003 stats., and is placed in the home of the guardian.

SB706, s. 24 Section 24. 48.977 (2) (e) of the statutes is amended to read:

SB706,34,2 48.977 (2) (e) That the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian or is not meeting the conditions established in the court order described in par. (a) for the safe return of the child to the home or, if the child has 2 parents, both parents are neglecting, refusing or unable to carry out the duties of a guardian those duties or are not meeting those conditions.

SB706, s. 25 Section 25. 48.977 (2) (f) of the statutes is amended to read:

SB706,34,25 48.977 (2) (f) That the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to make it possible for the child to return to his or her home, while assuring that the child's health and safety are the paramount concerns, but that reunification of the child with the child's parent or parents is unlikely or contrary to the best interests of the child and that further reunification efforts are unlikely to be made or are contrary to the best interests of the child or that the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to prevent the removal of the child from his or her home, while assuring the child's health and safety, but that continued placement of the child in the home would be contrary to the welfare of the child, except that the court is not required to find that the agency has made those reasonable efforts with respect to a parent of the child if any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies to that parent. The court shall make the findings specified in this paragraph on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the guardianship order. A guardianship order that merely references this paragraph without documenting or referencing that specific information in the order or an amended guardianship order that retroactively corrects an earlier guardianship order that does not comply with this paragraph is not sufficient to comply with this paragraph. This paragraph does not apply to a child who is placed in the home of a guardian under ch. 54, 2007 stats., or ch. 880, 2003 stats., and who is not receiving services from an agency under a court order.

SB706, s. 26 Section 26. 48.977 (4) (b) 3. of the statutes is amended to read:

SB706,35,12 48.977 (4) (b) 3. The date on which the child was adjudged in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (4m), (5), (8), (9), (10), (10m), (11), or (11m) or 938.13 (4) or (12), or was adjudicated delinquent under s. 938.12, and the dates on which the child has been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.34, 938.345, 938.357, 938.363, or 938.365 ; or, if the child has been so adjudged, but not so placed, the date of the report under s. 48.33 (1) or 938.33 (1) in which placement of the child in the home of the person is recommended ; or, if the child has had a guardian of the person appointed for him or her under ch. 54, 2007 stats., or ch. 880, 2003 stats., the date on which the child was placed in the home of the guardian.

SB706, s. 27 Section 27. 48.977 (4) (b) 6. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,35,18 48.977 (4) (b) 6. A statement of whether the child may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB706, s. 28 Section 28. 48.977 (4) (c) 2. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,36,6 48.977 (4) (c) 2. Except as provided in subd. 2m., service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party. Service is considered to be made by proof that the petition and notice under subd. 1. were mailed to the last-known address of the recipient, by proof of personal delivery of that petition and notice, or, if the recipient is an adult, by the written admission of service of the person served.

SB706, s. 29 Section 29. 48.977 (4) (i) of the statutes is amended to read:

SB706,36,10 48.977 (4) (i) Effect of disposition on permanency plan review process. After a disposition under par. (h), the child's permanency plan shall continue to be reviewed under s. 48.38 (5) or 938.38 (5), if applicable required under s. 48.38 (2) or 938.38 (2).

SB706, s. 30 Section 30. 48.977 (8) of the statutes is amended to read:

SB706,36,14 48.977 (8) Relationship to ch. 54 and ch. 880, 2003 stats other guardianship procedures. (a) This section does not abridge the duties or authority of a guardian appointed under s. 48.976, ch. 54, 2007 stats., or ch. 880, 2003 stats.

SB706,36,16 (b) Nothing in this section prohibits an individual from petitioning a court under ch. 54 s. 48.976 for appointment of a guardian.

SB706, s. 31 Section 31. 48.978 (2) (b) 11. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB706,36,22 48.978 (2) (b) 11. A statement of whether the child may be subject to s. 48.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to s. 48.028 or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

SB706, s. 32 Section 32. 48.978 (7) of the statutes is amended to read:

SB706,37,2 48.978 (7) Relationship to ch. 54 other guardianship procedures. (a) Except when a different right, remedy, or procedure is provided under this section, the rights, remedies, and procedures provided in s. 48.976 or ch. 54, whichever is applicable, shall govern a standby guardianship created under this section.

SB706,37,4 (b) This section does not abridge the duties or authority of a guardian appointed under s. 48.976, ch. 880, 2003 stats., or ch. 54.

SB706,37,7 (c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian of the person under s. 48.976 or a guardian of the estate under ch. 54.

SB706, s. 33 Section 33. 48.979 of the statutes is created to read:

SB706,37,13 48.979 Delegation of power by parent, guardian, or legal custodian. A parent, guardian, or legal custodian of a child, by a properly executed power of attorney, may delegate to another person, for a period not to exceed one year, any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child.

SB706, s. 34 Section 34. 49.32 (1) (am) of the statutes is amended to read:

SB706,37,18 49.32 (1) (am) Paragraph (a) does not prevent the department or a county department under s. 46.22 or 46.23 from charging and collecting the cost of adoptive placement investigations and child care as authorized under s. 48.837 (7) or the cost of guardianship investigations as authorized under s. 48.976 (3) (d) 2.

SB706, s. 35 Section 35. 51.30 (4) (b) 18. a. of the statutes is amended to read:

SB706,37,25 51.30 (4) (b) 18. a. In this subdivision, "abuse" has the meaning given in s. 51.62 (1) (ag); "neglect" has the meaning given in s. 51.62 (1) (br); and "parent" has the meaning given in s. 48.02 (13), except that "parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in s. 48.02 (11), or for whom a guardian is appointed under, or s. 48.976 or 54.10 or s. 880.33, 2003 stats.

SB706, s. 36 Section 36. 51.30 (4) (b) 18. c. of the statutes is amended to read:

SB706,38,17 51.30 (4) (b) 18. c. If the patient, regardless of age, has a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., or if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in subd. 18. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under s. 48.831 and does not have a guardian appointed under s. 48.976 or 54.10 or s. 880.33, 2003 stats., the name, address and telephone number of the parent or guardian appointed under s. 48.831 of the patient.

SB706, s. 37 Section 37. 54.01 (10) of the statutes is amended to read:

SB706,38,22 54.01 (10) "Guardian" means a person appointed by a court under s. 54.10 to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of a minor, an individual found incompetent, or a spendthrift or to manage the income and assets of a minor.

SB706, s. 38 Section 38. 54.10 (1) of the statutes is amended to read:

SB706,39,3 54.10 (1) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor. Except as provided in ss. 48.831, 48.977, and 48.978, an appointment of a guardian of the person of a minor shall be conducted under the procedures specified in s. 48.976.

SB706, s. 39 Section 39. 54.52 (1) of the statutes is amended to read:

SB706,39,12 54.52 (1) A person may at any time bring a petition for the appointment of a standby guardian of the person or estate of an individual who is determined under s. 54.10 to be incompetent, a minor, or a spendthrift or for the appointment of a standby guardian of the estate of a minor, except that, as specified in s. 48.97 48.978, a petition for the appointment of a standby guardian of the person or property estate, 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 may be brought under s. 48.978.

SB706, s. 40 Section 40. 54.56 of the statutes is renumbered 48.976 (11) and amended to read:

SB706,39,17 48.976 (11) Visitation by a minor's child's grandparents and stepparents. (a) In this section subsection, "stepparent" means the surviving spouse of a deceased parent of a minor child, whether or not the surviving spouse has remarried.

SB706,40,3 (b) If one or both parents of a minor child are deceased and the minor child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the minor child may petition for visitation privileges with respect to the minor child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter section that affects the minor child or may file the petition to commence an independent action under this chapter subsection. Except as provided in sub. (3m) par. (cm), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the minor child has notice of the hearing and if the court determines that visitation is in the best interest of the minor child.

SB706,40,5 (c) Whenever possible, in making a determination under sub. (2) par. (b), the court shall consider the wishes of the minor child.

SB706,40,11 (cm) 1. Except as provided in par. (b) subd. 2., the court may not grant visitation privileges to a grandparent or stepparent under this section subsection if the grandparent or stepparent has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the minor child, and the conviction has not been reversed, set aside, or vacated.

SB706,40,15 2. Paragraph (a) Subdivision 1. does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the minor child. The court shall consider the wishes of the minor child in making the determination.