2005 Wisconsin Act 387

223.10 Organizations as fiduciaries. Except as provided in s. 880.35 54.15 (7), no court or probate registrar in this state may appoint or issue letters to any corporation, limited liability company, association, partnership or business trust as trustee, personal representative, guardian, conservator, assignee, receiver, or in any other fiduciary capacity unless such corporation, limited liability company, association, partnership or business trust is subject to regulation and examination under s. 223.105, or is a national bank, state or federal savings and loan association, state or federal savings bank or federal credit union with authority to exercise such powers, or is a foreign corporation operating under s. 223.12.

387,165 Section 165. 243.07 (3) (a) of the statutes is amended to read:

243.07 (3) (a) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other the individual who is the principal is adjudicated incompetent and a guardian is appointed for him or her, a conservator is appointed for him or her under s. 54.76, or another fiduciary is charged by a court with the management of all or some of the principal's property or all of his or her property except specified exclusions, the agent is accountable to the fiduciary as well as to the principal. Unless the court finds that the durable power of attorney should remain in effect, the fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated, the durable power of attorney executed under this chapter by the principal remains in effect, except that the court may under s. 54.46 (2) (c) or s. 54.76 (3g) or, for a fiduciary, after a hearing upon a petition, as applicable, for good cause shown, revoke the durable power of attorney and invalidate the basic power of attorney for finances and property or limit the authority of the agent under the terms of the basic power of attorney for finances and property. Unless the court makes this revocation or limitation, the guardian, conservator, or other fiduciary, as applicable, may not make decisions for the principal that may be made by the agent, unless the guardian, conservator, or fiduciary is the agent.

387,166 Section 166. 243.07 (3) (b) of the statutes is amended to read:

243.07 (3) (b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if protective guardianship or conservatorship proceedings for the principal's person or estate are thereafter commenced after execution of the durable power of attorney. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

387,167 Section 167. 243.10 (7) (c) of the statutes is created to read:

243.10 (7) (c) If a principal, after executing a durable power of attorney, is adjudicated incompetent in this state, has a conservator appointed for him or her, or a court charges another fiduciary with the management of all or some of his or her property, a court may under s. 54.46 (2) (c) or 54.76 (3g) or, for a fiduciary, after a hearing upon a petition, as applicable, for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney.

387,168 Section 168. 252.15 (2) (a) 4. a. of the statutes is amended to read:

252.15 (2) (a) 4. a. The individual has been adjudicated incompetent under ch. 880 in this state, is under 14 years of age or is unable to give consent because he or she is unable to communicate due to a medical condition.

387,169 Section 169. 252.15 (2) (a) 4. b. of the statutes is amended to read:

252.15 (2) (a) 4. b. The health care provider obtains consent for the testing from the individual's guardian, if the individual is adjudicated incompetent under ch. 880 in this state; from the individual's parent or guardian, if the individual is under 14 years of age; or from the individual's closest living relative or another with whom the individual has a meaningful social and emotional relationship if the individual is not a minor nor adjudicated incompetent.

387,170 Section 170. 252.15 (2) (bm) (intro.) of the statutes is amended to read:

252.15 (2) (bm) (intro.) The health care provider that subjects a person to a test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV under par. (a) 3. shall provide the test subject and the test subject's guardian, if the test subject is an individual found incompetent under ch. 880 in this state, with all of the following information:

387,171 Section 171. 252.15 (5) (a) 15. of the statutes is amended to read:

252.15 (5) (a) 15. To anyone who provides consent for the testing under sub. (2) (a) 4. b., except that disclosure may be made under this subdivision only during a period in which the test subject is adjudicated incompetent under ch. 880 in this state, is under 14 years of age, or is unable to communicate due to a medical condition.

387,172 Section 172. 253.10 (3) (c) 7. of the statutes is amended to read:

253.10 (3) (c) 7. If the woman considering an abortion is a minor, unless s. 48.375 (4) (a) 2. applies, the requirements to provide information to the woman under subds. 1. to 6. apply to also to require provision of the information to the individual whose consent is also required under s. 48.375 (4) (a) 1. If the woman considering an abortion has been adjudicated is an individual adjudicated incompetent under ch. 880 in this state, the requirements to provide information to the woman under subds. 1. to 6. apply to also require provision of the information to the person appointed as the woman's guardian.

387,173 Section 173. 343.06 (1) (L) of the statutes is created to read:

343.06 (1) (L) To any person who has been declared incompetent under s. 54.25 (2) (c) 1. d. to apply for an operator's license.

387,174 Section 174. 343.31 (title) of the statutes is amended to read:

343.31 (title) Revocation or suspension of licenses after certain convictions or declarations.

387,175 Section 175. 343.31 (2x) of the statutes is created to read:

343.31 (2x) The department shall suspend a person's operating privilege upon receiving a record of a declaration under s. 54.25 (2) (c) 1. d. that the person is incompetent to apply for an operator's license. The department may reinstate the person's operator's license upon receiving a record of a declaration that the person is no longer incompetent to apply for an operator's license under s. 54.25 (2) (c) 1. d., if the person is otherwise qualified under this chapter to obtain an operator's license.

387,176 Section 176. 343.31 (3) (a) of the statutes is amended to read:

343.31 (3) (a) Except as otherwise provided in this subsection or sub. (2m) or, (2s), or (2x), all revocations or suspensions under this section shall be for a period of one year.

387,177 Section 177. 403.308 (1) of the statutes is amended to read:

403.308 (1) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or adjudicated incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on the instrument as a represented person under s. 403.402 (1).

387,178 Section 178. 440.121 of the statutes is created to read:

440.121 Credential denial, nonrenewal, and revocation based on incompetency. Notwithstanding any other provision of chs. 440 to 480 relating to issuance or renewal of a credential, the department shall deny an application for an initial credential or credential renewal or revoke a credential issued to an individual for whom the department receives a record of a declaration under s. 54.25 (2) (c) 1. d. stating that the individual is incompetent to apply for a credential under chs. 440 to 480.

387,179 Section 179. 565.30 (2) of the statutes is amended to read:

565.30 (2) Payment of prizes to minors. If the prize for a winning lottery ticket or lottery share given to a minor is less than $1,000, the administrator may make payment of the prize by delivering to an adult member of the minor's family, or to the minor's guardian, a check or draft payable to the minor. If the prize is $1,000 or more, the administrator shall make payment to the minor by paying or delivering the money to a broker or financial institution under s. 880.65 54.870 (1) (b).

387,180 Section 180. 609.65 (1) (intro.) of the statutes is amended to read:

609.65 (1) (intro.) If an enrollee of a limited service health organization, preferred provider plan, or defined network plan is examined, evaluated, or treated for a nervous or mental disorder pursuant to a court order under s. 880.33 (4m) or (4r), 2003, stats., an emergency detention under s. 51.15, a commitment or a court order under s. 51.20 or 880.33 (4m) or (4r), an order for protective placement or protective services under ch. 55, an order under s. 55.14 or 55.19 (3) (e), or an order under ch. 980, then, notwithstanding the limitations regarding participating providers, primary providers, and referrals under ss. 609.01 (2) to (4) and 609.05 (3), the limited service health organization, preferred provider plan, or defined network plan shall do all of the following:

387,181 Section 181. 628.10 (1) of the statutes is amended to read:

628.10 (1) General. An intermediary's license issued under s. 628.04 remains in force until it is revoked or limited under sub. (2), until it is suspended under sub. (2) or s. 227.51 (3), until it is surrendered or until the licensee dies or is in this state adjudicated incompetent as defined in s. 880.01 (4).

387,182 Section 182. 705.04 (2) of the statutes is amended to read:

705.04 (2) If the account is a P.O.D. account, on the death of the original payee or the survivor of 2 or more original payees, any sums remaining on deposit belong to the P.O.D. beneficiaries if surviving, or to the survivor of them if one or more die before the original payee. Payment may be made to a minor P.O.D. beneficiary, however, only in accordance with a procedure approved in ch. 880 54. If 2 or more P.O.D. beneficiaries survive, they shall be entitled to payment of the sums on deposit in accordance with such written instructions as may have been filed with the financial institution, and if none, to payment in equal shares. There is no right of survivorship in the event of the death of one of 2 or more P.O.D. beneficiaries after their entitlement to payment has matured unless the terms of the account expressly provide for survivorship or for the account's continuance as a joint account.

387,183 Section 183. 706.03 (4) of the statutes is amended to read:

706.03 (4) A conveyance by a minor or an individual adjudicated incompetent in this state is effective only if executed by an authorized guardian on behalf of such the minor or individual adjudicated incompetent. In the case of a limited incompetency, such This restriction does not apply if an individual has been determined competent to make contracts under s. 880.33 (3) the individual's adjudication of incompetency permits him or her to contract.

387,184 Section 184. 706.09 (1) (f) of the statutes is amended to read:

706.09 (1) (f) Lack of authority of officers, agents or fiduciaries. Any defect or insufficiency in authorization of any purported officer, partner, manager, agent, or fiduciary to act in the name or on behalf of any corporation, partnership, limited liability company, principal, trust, estate, minor, individual adjudicated incompetent , or other holder of an interest in real estate purported to be conveyed in a representative capacity, after the conveyance has appeared of record for 5 years.

387,185 Section 185. 753.30 (1) of the statutes is amended to read:

753.30 (1) The clerk of circuit court shall keep the books and records under s. 59.40 (2) (a) to (i) and ch. 799 and perform the duties under s. 59.40 (2) (j) to (q) for all matters in the circuit court except those under chs. 48, 54, and 851 to 880 879. In counties having only one circuit judge, the circuit judge, with the approval of the chief judge of the judicial administrative district, may appoint the clerk of court register in probate. The appointments are revocable at the pleasure of the circuit judge. Appointments and revocations shall be in writing and shall be filed in the office of the register in probate. If appointed for this purpose, the clerk has the powers and duties of registers in probate. In prosecutions of ordinance violations in the circuit court in counties having a population of 500,000 or more, an assistant chief deputy clerk appointed under sub. (3) (a), or one of his or her deputies, shall enter upon the records of the court a statement of the offense charged, which shall stand as the complaint, unless the court directs formal complaint be made. The defendant's plea shall be guilty or not guilty, and shall be entered as not guilty on failure to plead, which plea of not guilty shall put all matters in such case at issue, any other provisions of law notwithstanding.

387,186 Section 186. 757.48 (1) (a) of the statutes is amended to read:

757.48 (1) (a) Except as provided in s. 879.23 (4), in all matters in which a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney admitted to practice in this state. In order to be appointed as a guardian ad litem under s. 767.045, an attorney shall have completed 3 hours of approved continuing legal education that relates to the functions and duties of a guardian ad litem under ch. 767 and that includes training on the dynamics of domestic violence and the effects of domestic violence on victims of domestic violence and on children. In order to be appointed as a guardian ad litem under s. 54.40 (1), an attorney shall have complied with SRC chapter 36.

387,187 Section 187. 757.48 (3) of the statutes is amended to read:

757.48 (3) No guardian ad litem may be permitted to receive any money or property assets or income of his or her ward, nor may any bond be required of a guardian ad litem, but all money or property of his or her assets or income of the ward may be paid or delivered to a general guardian of his or her property the ward's guardian of the estate, subject to the exceptions of s. 880.04 54.12.

387,188 Section 188. 757.69 (1) (h) of the statutes is amended to read:

757.69 (1) (h) Hear petitions for commitment and conduct probable cause hearings under ss. 51.20, 51.45 and 55.06 (11), conduct reviews of guardianships under ch. 54 and reviews of protective placements and protective services under chs. ch. 55 and 880, advise a person alleged to be mentally ill of his or her rights under the United States and Wisconsin constitutions, and, if the person claims or appears to be unable to afford counsel, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child to the state public defender, who shall appoint counsel for the child without a determination of indigency, as provided in s. 48.23 (4).

387,189 Section 189. 758.19 (6) (a) of the statutes is amended to read:

758.19 (6) (a) In this subsection, "guardian ad litem costs" means the costs of guardian ad litem compensation that a county incurs under ch. 48, 54, 55, 767, 880 or 938 or ch. 880, 2003 stats., that the county has final legal responsibility to pay, or that the county is unable to recover from another person and that does not exceed the per hour rate established for time spent in court by private attorneys under s. 977.08 (4m) (b).

387,190 Section 190. 758.19 (6) (d) 1. of the statutes is amended to read:

758.19 (6) (d) 1. The total cost of guardian ad litem compensation that the county incurred under chs. 48, 54, 55, 767, 880 and 938 and ch. 880, 2003 stats., in the previous calendar year.

387,191 Section 191. 758.19 (6) (d) 2. of the statutes is amended to read:

758.19 (6) (d) 2. The total guardian ad litem compensation that the county initially paid under chs. 48, 54, 55, 767, 880 and 938 and ch. 880, 2003 stats., and that was recovered in the previous calendar year by the county from another responsible person.

387,192 Section 192. 765.11 (1) of the statutes is amended to read:

765.11 (1) If any parent, grandparent, child, or natural guardian of a minor applicant for a marriage license, any brother, sister, or guardian of either of the applicants for a marriage license, either of the applicants, the district attorney, or a circuit court commissioner believes that the statements of the application are false or insufficient, or that the applicants or either of them are an applicant is adjudicated incompetent without the right to marry, that person may file with the court having probate jurisdiction in the county in which the marriage license is applied for, a petition under oath, setting forth the grounds of objection to the marriage, and asking for an order requiring the parties making such the application to show cause why the marriage license should not be refused. Whereupon, the court, if satisfied that the grounds of objection are prima facie valid, shall issue an order to show cause as aforesaid, returnable as the court directs, but not more than 14 days after the date of the order, which shall be served forthwith upon the applicants for the marriage license residing in the state, and upon the clerk before whom the application has been made, and shall operate as a stay upon the issuance of the marriage license until further ordered; if either or both of the applicants are nonresidents of the state the order shall be served forthwith immediately upon the nonresident by publication of a class 1 notice, under ch. 985, in the county wherein in which the application is pending, and by mailing a copy thereof to the nonresident at the address contained in the application.

387,193 Section 193. 766.51 (7) of the statutes is amended to read:

766.51 (7) A court may appoint a conservator or guardian under ch. 880 54 to exercise a disabled spouse's right to manage and control marital property.

387,194 Section 194. 767.29 (3) (a) of the statutes is amended to read:

767.29 (3) (a) If maintenance payments or support money, or both, is ordered to be paid for the benefit of any person, individual who is committed by court order to an institution or is in confinement, or whose legal custody is vested by court order under ch. 48 or 938 in an agency, department or, relative, or other entity, the court or a circuit court commissioner may order such the maintenance payments or support money to be paid to the relative or , agency, institution, welfare department, or other entity having the legal or actual custody of said person the individual, and to be used for the latter's care and maintenance, without the appointment of a guardian under ch. 880 in this state.

387,195 Section 195. 786.01 of the statutes is amended to read:

786.01 Conveyance of lands held in trust by persons under disability. Whenever any minor or person individual adjudicated incompetent to manage his or her affairs is seized or possessed of any lands or interest in any lands by way of mortgage or in trust only for others, the circuit court of the proper county may, upon the petition of the guardian of the minor or individual adjudicated incompetent person or of any person in any way interested in the real estate, make an order authorizing or compelling the minor or individual adjudicated incompetent person to convey and assure the lands or interest in the lands to any person entitled thereto, in such manner as the court directs.

387,196 Section 196. 786.02 of the statutes is amended to read:

786.02 Specific performance of incompetent's contract of individual adjudicated incompetent. A circuit court may authorize or compel the specific performance of any contract made by any person who becomes individual who is adjudicated incompetent before the performance thereof of the contract, on the complaint or petition of the guardian of the individual adjudicated incompetent person or of any other person interested in the contract.

387,197 Section 197. 786.03 of the statutes is amended to read:

786.03 Specific performance; order; appeal. No order authorizing or directing any such conveyance or the performance of any such contract shall be made until after hearing the parties and being satisfied that such conveyance ought to be made or such contract ought to be performed. The court may, by such order, direct the guardian of such individual adjudicated incompetent person, or a special guardian appointed in such proceeding, to do any act which is necessary to carry such order into effect. The court may further direct that the reasonable expenses of the proceedings be paid out of the proceeds of the sale. No appeal shall lie from such order unless notice of intention to appeal shall be filed with the court within 10 days after date of the order. The court may enforce such order by any proper proceedings.

387,198 Section 198. 786.04 of the statutes is amended to read:

786.04 Specific performance; conveyance; warranties. The court may require the guardian to convey the real estate which such individual adjudicated incompetent person might or ought to have conveyed if still competent. Where such incompetent person individual contracted before incompetency to convey real estate by warranty deed, the guardian shall convey by warranty deed subject to any exceptions set forth in the incompetent's individual's contract to convey. The guardian shall not be personally liable because of any breach of such warranty, but such warranty deed shall have the same effect for all purposes as if the individual adjudicated incompetent had executed it at such time while competent. This section is applicable where an individual adjudicated incompetent before incompetency made an assignment of a contract to convey real estate but did not deed to the assignee the title to the premises covered by the contract.

387,199 Section 199. 786.05 of the statutes is amended to read:

786.05 Specific performance; recording order; effect. A certified copy of such judgment directing such conveyance, which is recorded in the office of the register of deeds in the county where the lands lie, shall be prima facie evidence of the correctness of the proceedings and of the authority of the guardian to convey. Every such conveyance shall be as effectual in passing the estate as if the individual adjudicated incompetent were then competent and executed the conveyance.

387,200 Section 200. 786.06 (intro.) of the statutes is amended to read:

786.06 Realty of wards; grounds for mortgage, sale, lease. (intro.) Any real estate, or interest therein belonging to a minor or to a person an individual adjudicated incompetent to manage personal affairs may be sold, mortgaged or leased:

387,201 Section 201. 786.06 (1) of the statutes is amended to read:

786.06 (1) When the personal property and the income of the real estate of such minor or individual adjudicated incompetent person are together insufficient for the payment of his or her debts or for the maintenance and education of himself or herself and family;

387,202 Section 202. 786.06 (2) of the statutes is amended to read:

786.06 (2) When the interests of such minor or individual adjudicated incompetent person require or will be substantially promoted by such disposition on account of such real estate or interest therein being exposed to waste or dilapidation, or being unproductive, or for other peculiar reasons or circumstances.

387,203 Section 203. 786.07 of the statutes is amended to read:

786.07 Realty of wards or incompetents individuals adjudicated incompetent; application for sale or encumbrance. The application for the disposition must be made to the circuit court of the county in which the real estate or some part thereof is situated or to the circuit court of the county in which the general guardian for the minor or individual adjudicated incompetent person has been appointed, by petition of the general guardian of the minor or of the incompetent person individual or by any relative or other person in behalf of either. The petition must be verified and must set forth the facts which would authorize the selling, mortgaging or leasing of the real estate or some part of the real estate for one or more of the reasons set forth in s. 786.06. If the real estate sold or some part of the real estate is situated in a county other than that in which the proceeding is taken, a certified copy of the order confirming the sale containing the name of the purchaser, the selling price and a description of the property sold shall be recorded in the office of the register of deeds of the county in which the real estate or any part of the real estate is situated. When the minor or individual adjudicated incompetent person has a general guardian and the application is to any court other than the court in which the general guardian was appointed, notice of hearing of the application shall be given by mailing a copy of the notice to the judge of the court that appointed the general guardian, and also to the general guardian, unless he or she is the petitioner, at least 10 days before the date of the hearing.

387,204 Section 204. 786.08 (1) (a) of the statutes is amended to read:

786.08 (1) (a) When the application is made on behalf of a minor or individual adjudicated incompetent, who has no general guardian, the court shall appoint some suitable person special guardian of the minor or incompetent individual in the proceeding; the special guardian shall give a bond to the judge of the court, to be filed with the clerk of the circuit court, in such sum, with such sureties, and in such form as the circuit court or judge directs, conditioned for the faithful performance of the trust reposed, for paying over, investing or accounting for all moneys that shall be received by the guardian, according to law and for observance of the directions of the court in relation to the trust.

387,205 Section 205. 786.08 (1) (b) of the statutes is amended to read:

786.08 (1) (b) When the minor shall have a general guardian, such general the guardian may be appointed special guardian in said matter; or, such general the guardian, as such, may be authorized and empowered to act in and conduct such proceedings in the same manner, and with the same provisions as to an additional general guardian's bond, as is provided in said proceedings for the conduct thereof by the general guardian of individuals adjudicated incompetent persons.

387,206 Section 206. 786.08 (2) of the statutes is amended to read:

786.08 (2) When the application is made on behalf of an individual adjudicated incompetent person, the guardian of the incompetent person individual shall, in the discretion of the court, give a bond to the judge of the court to be filed with the clerk of the circuit court, in such sum, additional to the guardian's original bond, as the court deems necessary, with such sureties and such conditions for the faithful performance of trust reposed as prescribed by this section.

387,207 Section 207. 786.10 of the statutes is amended to read:

786.10 Order for lease, mortgage, sale. If, after an examination of the matter by the court or judge to which application is made, without a reference, or on the coming in of the report of the referee, and on examination of the matter, it shall satisfactorily appear that a disposition of any part of the real estate of such minor or individual adjudicated incompetent person or any interest therein is necessary and proper, for any of the causes mentioned in s. 786.06 such court or judge shall make an order directing and authorizing the guardian to contract for the leasing, mortgaging, or sale of such real estate or interest therein or of such part thereof as the court or judge shall deem proper in such manner and with such restrictions as shall be deemed expedient.

387,207m Section 207m. 786.12 of the statutes is amended to read:

786.12 Wards; other disposal of real estate; acquisition or other disposal of real estate. The courts and judges mentioned in Under this chapter are further empowered and authorized to, the court in which a guardian has been appointed for a minor or an individual adjudicated incompetent may, in addition to the provisions of this chapter, make any other disposition of the real estate of any minor or other the ward mentioned herein when it shall be made to appear to such court or judge that such proposed disposition will substantially promote the interests of any such ward. The court or judge of the court in which the general guardian has been appointed is empowered to or authorize the purchase in the name of such the ward of any real estate within the in this state of Wisconsin when it shall be made to appear to such if the court or judge determines that such the proposed disposition or purchase will substantially promote the interests of such the ward, provided that no debt shall be incurred or assumed by such ward for purchase of any such real estate. The provisions of this chapter are applicable to all proceedings under this section.