1997 WISCONSIN ACT 334
An Act to repeal 880.36 (3) and 880.36 (4); to amend 48.023 (intro.), 48.065 (3) (g), 48.14 (2) (b), 48.235 (1) (c), 48.299 (4) (a), 48.299 (4) (b), 48.62 (2), 48.831 (1) and 880.36 (1); and to create 48.978 and 808.075 (4) (a) 12. of the statutes; relating to: the designation by a parent or the appointment by a court of a standby guardian of a child whose duty and authority as standby guardian begins on the incapacity, death, or debilitation and consent, of the parent.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
334,1
Section 1
. 48.023 (intro.) of the statutes is amended to read:
48.023 Guardianship. (intro.) Except as limited by an order of the court under s. 48.977 (5) (b) or 48.978 (6) (b) 2., a person appointed by the court to be the guardian of a child under this chapter has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare, including but not limited to:
334,2
Section 2
. 48.065 (3) (g) of the statutes is amended to read:
48.065 (3) (g) Conduct hearings, make findings or issue orders in proceedings under s. 48.977 or 48.978.
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Section 3
. 48.14 (2) (b) of the statutes is amended to read:
48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.428, 48.43, 48.831, 48.832, 48.839 (4) (a) and
, 48.977 and 48.978 and ch. 880 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.
334,4
Section 4
. 48.235 (1) (c) of the statutes is amended to read:
48.235 (1) (c) The court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding and for a child who is the subject of a proceeding under s. 48.977 or 48.978.
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Section 5
. 48.299 (4) (a) of the statutes is amended to read:
48.299 (4) (a) Chapters 901 to 911 shall govern the presentation of evidence at the fact-finding hearings under ss. 48.31, 48.42 and, 48.977 (4) (d) and 48.978 (2) (e) and (3) (f) 2.
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Section 6
. 48.299 (4) (b) of the statutes is amended to read:
48.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s. 48.21, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, revision of dispositional orders, extension of dispositional orders or termination of guardianship orders entered under s. 48.977 (4) (h) 2. or (6) or 48.978 (2) (j) 2. or (3) (g). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
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Section 7
. 48.62 (2) of the statutes is amended to read:
48.62 (2) A relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a) or a guardian of a child, who provides care and maintenance for a child, is not required to obtain the license specified in this section. The department, county department or licensed child welfare agency as provided in s. 48.75 may issue a license to operate a foster home or a treatment foster home to a relative who has no duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster home or treatment foster home for a specific child who is either placed by court order or who is the subject of a voluntary placement agreement under s. 48.63. The department, a county department or a licensed child welfare agency may, at the request of a guardian appointed under s. 48.977 or 48.978 or ch. 880, license the guardian's home as a foster home or treatment foster home for the guardian's minor ward who is living in the home and who is placed in the home by court order. Relatives with no duty of support and guardians appointed under s. 48.977 or 48.978 or ch. 880 who are licensed to operate foster homes or treatment foster homes are subject to the department's licensing rules.
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Section 8
. 48.831 (1) of the statutes is amended to read:
48.831 (1) Type of guardianship. This section may be used for the appointment of a guardian of a child who does not have a living parent if a finding as to the adoptability of a child is sought. Except as provided in s. ss. 48.977 and 48.978, ch. 880 applies to the appointment of a guardian for a child who does not have a living parent for all other purposes. An appointment of a guardian of the estate of a child who does not have a living parent shall be conducted in accordance with the procedures specified in ch. 880.
334,9
Section 9
. 48.978 of the statutes is created to read:
48.978 Appointment or designation of standby guardian of a child. (1) Definitions. In this section:
(a) “Attending physician" means a physician licensed under ch. 448 who has primary responsibility for the treatment and care of a parent who has filed a petition under sub. (2) (a) or made a written designation under sub. (3) (a) or, if more than one physician has responsibility for the treatment and care of that parent, if a physician is acting on behalf of a physician who has primary responsibility for the treatment and care of that parent or if no physician is responsible for the treatment and care of that parent, “attending physician" means any physician licensed under ch. 448 who is familiar with the medical condition of that parent.
(b) “Debilitation" means a person's chronic and substantial inability, as a result of a physical illness, disease, impairment or injury, to care for his or her child.
(c) “Incapacity" means a person's chronic and substantial inability, as a result of a mental impairment, to care for his or her child.
(2) Judicial appointment. (a)
Who may file petition. 1. A parent of a child may file a petition for the judicial appointment of a standby guardian of the person or estate or both of the child under this subsection. A parent may include in the petition the nomination of an alternate standby guardian for the court to appoint if the person nominated as standby guardian is unwilling or unable to serve as the child's guardian or if the court determines that appointment of the person nominated as standby guardian as the child's guardian is not in the best interests of the child. Subject to subds. 2. and 3., if a petition is filed under this subdivision, the petition shall be joined by each parent of the child.
2. If a parent of a child cannot with reasonable diligence locate the other parent of the child, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that reasonable diligence, the court may grant the petition.
3. If a parent of a child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that refusal, unwillingness or inability, the court may grant the petition.
(b) Contents of petition. A proceeding for the appointment of a standby guardian for a child under this subsection shall be initiated by a petition that shall be entitled “In the interest of .... (child's name), a person under the age of 18" and shall set forth with specificity all of the following:
1. The name, birth date and address of the child.
2. The names and addresses of the child's parent or parents, guardian and legal custodian.
3. The name and address of the person nominated as standby guardian and, if the petitioner is nominating an alternate standby guardian, the name and address of the person nominated as alternate standby guardian.
4. The duties and authority that the petitioner wishes the standby guardian to exercise.
5. A statement of whether the duty and authority of the standby guardian are to become effective on the petitioner's incapacity, on the petitioner's death, or on the petitioner's debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement.
7. If a parent of the child cannot with reasonable diligence locate the other parent of the child, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duties and authority of guardianship and who, with reasonable diligence, can be located and a statement of the efforts made to locate the other parent.
8. If a parent of the child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship and a statement that the nonpetitioning parent has refused to join in the petition or has indicated that he or she is unwilling or unable to exercise the duty and authority of guardianship.
9. A description of the child's income and assets, if any.
10. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act under ch. 822.
11. A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1911 to 1963.
(c) Service of petition and notice. 1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (d) to be served on all of the following persons:
a. The child if the child is 12 years of age or older.
b. The child's guardian and legal custodian.
c. The child's guardian ad litem.
d. The child's counsel.
e. The child's other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located.
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
g. The person who is nominated as the standby guardian of the child in the petition and, if an alternate standby guardian is nominated in the petition, the person who is nominated as the alternate standby guardian.
2. Service shall be made by certified mail at least 7 days before the hearing or by personal service in the same manner as a summons is served under s. 801.11 (1) (a) or (b) at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or by personal or substituted 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.
(d) Plea hearing. 1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date that allows reasonable time for the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition.
2. If the petition is not contested, the court may immediately proceed to a dispositional hearing under par. (g), unless an adjournment is requested under par. (g).
3. If the petition is contested, the court shall set a date for a fact-finding hearing under par. (e) that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing.
(e) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (d) 3. at which any party may present evidence relevant to any of the following issues:
1. Whether there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. Whether the child has any parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. If a parent cannot be located, whether the petitioner has made diligent efforts to locate that parent.
4. If a parent has refused to join in the petition, whether that refusal is unreasonable.
(f) Required findings by court. If the court, at the conclusion of the fact-finding hearing, makes all of the following findings by clear and convincing evidence, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested under par. (g):
1. That there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. That the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent.
4. That, if a parent has refused to join in the petition, the refusal was unreasonable.
5. That the person nominated as standby guardian is willing and able to act as standby guardian or, if that person is not so willing and able, that the person nominated as alternate standby guardian is willing and able to act as standby guardian.
(g) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified under par. (d) 2. or (e), at which any party may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing or fact-finding hearing.
(h) Dispositional factors. In determining the appropriate disposition under this par. (j), the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
1. Whether the person nominated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
2. The willingness and ability of the person nominated as standby guardian or alternate standby guardian to serve as the child's guardian if the petitioner becomes incapacitated or debilitated or dies.
3. The wishes of the child.
(i) Appearance by petitioner. If the petitioner is medically unable to appear at a hearing under par. (d), (e) or (g), the court may dispense with the petitioner's appearance, except on the motion of a party and for good cause shown.
(j) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:
1. A disposition dismissing the petition if the court determines that appointment of the person nominated as standby guardian or alternate standby guardian as the child's standby guardian is not in the best interests of the child.
2. A disposition ordering that the person nominated as standby guardian or alternate standby guardian be appointed as the child's standby guardian if the court determines that such an appointment is in the best interests of the child.
(k) Guardianship order. A standby guardianship order under par. (j) 2. shall include all of the following:
1. A statement of whether the standby guardianship is a full guardianship under sub. (6) (b) 1. or a limited guardianship under sub. (6) (b) 2.
2. A statement of when the standby guardianship goes into effect, which may be on receipt by the standby guardian of a determination of the petitioner's incapacity, a certificate of the petitioner's death, or a determination of the petitioner's debilitation and the petitioner's written consent under par. (L) 3. that the standby guardianship go into effect.
(L) Commencement of duty and authority of court-appointed standby guardian. 1. If a standby guardianship order under par. (j) 2. provides that the duty and authority of a standby guardian are effective on the petitioner's incapacity, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a determination of incapacity under sub. (4).
