LRB-2451/1
DAK:jld:jf
2001 - 2002 LEGISLATURE
September 26, 2001 - Introduced by Senators Chvala and Burke, cosponsored by
Representatives Huber, La Fave, Turner and
Ryba. Referred to Committee on
Judiciary, Consumer Affairs, and Campaign Finance Reform.
SB257,1,4
1An Act to repeal 880.24 (3) (b);
to amend 880.24 (3) (a) (intro.); and
to create
2880.24 (3) (a) 1m. of the statutes;
relating to: payment from a ward's estate of
3reasonable attorney fees and costs for successful petitioners in incompetence
4and guardianship proceedings.
Analysis by the Legislative Reference Bureau
Under current law, an individual's relative, a public official, or any other person
may petition for a finding of incompetence and appointment of a guardian for the
individual. If a court finds, after a hearing that is brought to review the petition, that
the individual is incompetent, the court orders appointment of a guardian for the
person and estate of the individual (the ward). The court also must award payment,
from the ward's estate, of reasonable attorney fees and costs incurred by the person
who successfully petitioned for the finding of incompetence, unless, after considering
specified factors, the court finds that it would be inequitable to do so. However, if the
court finds that the ward had executed a financial power of attorney or power of
attorney for health care or had engaged in other advance planning to avoid
guardianship, the court may not award this payment from the ward's estate.
This bill eliminates the provision prohibiting a court from awarding, from a
ward's estate, attorney fees and costs to the person who successfully petitioned for
a finding of the ward's incompetence, if the ward had executed a financial power of
attorney or power of attorney for health care or had engaged in other advance
planning to avoid guardianship. Instead, the bill provides that this action on the part
of the ward must be considered as a factor in determining whether it would be
inequitable to award, from the ward's estate, attorney fees and costs to the successful
petitioner.
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:
SB257, s. 1
1Section
1. 880.24 (3) (a) (intro.) of the statutes is amended to read:
SB257,2,62
880.24
(3) (a) (intro.)
Except as provided in par. (b), when If a guardian is
3appointed, the court shall award from the ward's estate payment of the petitioner's
4reasonable attorney fees and costs, including those fees and costs, if any, related to
5protective placement of the ward, unless the court finds, after considering all of the
6following, that it would be inequitable to do so:
SB257, s. 2
7Section
2. 880.24 (3) (a) 1m. of the statutes is created to read:
SB257,2,108
880.24
(3) (a) 1m. Whether the ward had executed a durable power of attorney
9under s. 243.07 or a power of attorney for health care under s. 155.05 or had engaged
10in other advance planning to avoid guardianship.
SB257, s. 3
11Section
3. 880.24 (3) (b) of the statutes is repealed.
