SB391: Bill Text

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:

SB391,22,8 29.024 (2u) Revocation of hunting licenses based on incompetency. The department shall revoke any license authorizing hunting 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 hunting license under this chapter.

SB391, s. 6 Section 6. 29.161 of the statutes is amended to read:

SB391,22,13 29.161 Resident small game hunting license. A resident small game hunting license shall be issued subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. by the department to any resident applying for this license. The resident small game hunting license does not authorize the hunting of bear, deer, elk, or wild turkey.

SB391, s. 7 Section 7. 29.164 (3) (e) of the statutes is amended to read:

SB391,22,19 29.164 (3) (e) Notification; issuance; payment. The department shall issue a notice of approval to those qualified applicants selected to receive a wild turkey hunting license. A person who receives a notice of approval and who pays the fee in the manner required by the department shall be issued a wild turkey hunting license subject to ss. 29.024 and 54.25 (2) (c) 1. d.

SB391, s. 8 Section 8. 29.171 (1) of the statutes is amended to read:

SB391,22,23 29.171 (1) A resident archer hunting license shall be issued subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. by the department to any resident applying for this license.

SB391, s. 9 Section 9. 29.173 (1) of the statutes is amended to read:

SB391,23,3 29.173 (1) Issuance. A resident deer hunting license shall be issued subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. by the department to any resident applying for this license.

SB391, s. 10 Section 10. 29.182 (4m) of the statutes is amended to read:

SB391,23,9 29.182 (4m) Limitation of one license. A person may be issued, or transferred under sub. (4) (g), only one resident elk hunting license in his or her lifetime, and the resident elk hunting license shall be valid for only one elk hunting season. The issuance, or transfer under sub. (4) (g), of the license to the person is subject to s. ss. 29.024 (2g) and 54.25 (2) (c) 1. d.

SB391, s. 11 Section 11. 29.184 (6) (c) 1r. of the statutes is amended to read:

SB391,23,14 29.184 (6) (c) 1r. The department shall issue a notice of approval to those qualified applicants selected to receive a Class A bear license. A person who receives a notice of approval and who pays the fees required for the license shall be issued the license subject to s. ss. 29.024 (2g) and 54.25 (2) (c) 1. d.

SB391, s. 12 Section 12. 29.184 (6) (c) 2. of the statutes is amended to read:

SB391,23,18 29.184 (6) (c) 2. A Class B bear license shall be issued subject to s. ss. 29.024 (2g) and 54.25 (2) (c) 1. d. by the department to any resident who applies for this license.

SB391, s. 13 Section 13. 29.231 (1) of the statutes is amended to read:

SB391,23,23 29.231 (1) A resident sports license shall be issued subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. by the department to any resident who applies for this license, and a nonresident sports license shall be issued subject to s. 29.024 by the department to any person who is not a resident and who applies for the license.

SB391, s. 14 Section 14. 29.235 (1) of the statutes is amended to read:

SB391,24,5 29.235 (1) Issuance. A resident conservation patron license shall be issued subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. by the department to any resident 14 years old or older who applies for the license. A nonresident conservation patron license shall be issued subject to s. 29.024 by the department to any person 14 years old or older who is not a resident and who applies for the license.

SB391, s. 15 Section 15. 29.512 (1) of the statutes is amended to read:

SB391,24,13 29.512 (1) No person may engage or be employed for any compensation or reward to guide, direct or assist any other person in hunting, fishing or trapping unless the person is issued a guide license by the department subject to s. ss. 29.024 and 54.25 (2) (c) 1. d. No guide license for hunting or trapping may be issued to or obtained by any person who is not a resident of this state. No guide license may be issued to any person under the age of 18 years. The holder of a guide license shall comply with all of the requirements of this chapter.

SB391, s. 16 Section 16. 32.05 (4) of the statutes is amended to read:

SB391,25,16 32.05 (4) How notice of jurisdictional offer is given. The giving of such notice is a jurisdictional requisite to a taking by condemnation. Such notice may be given by personal service in the manner of service of a circuit court summons, or it may be transmitted by certified mail. If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service. If such owner or mortgagee is unknown or cannot be found there shall be published in the county wherein the property is located a class 1 notice, under ch. 985. If such owner is a minor, or an incompetent person individual adjudicated incompetent, the condemnor shall serve such notice upon the legal guardian of such the minor or incompetent individual, and if there is no such guardian the condemnor shall proceed under s. 32.15 to have a special guardian appointed to represent such the minor or incompetent individual in such the proceeding. The reasonable fees of such any special guardian as approved by the court shall be paid by the condemnor. Such The notice shall be called the "jurisdictional offer". The condemnor shall file a lis pendens on or within 14 days of the date of service or mailing of the jurisdictional offer or within 14 days of the date of publication if publication is necessary. The lis pendens shall include a copy of the jurisdictional offer. From the time of such filing every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the terms of the jurisdictional offer and it shall not be necessary to serve other jurisdictional offers on such subsequent purchaser or encumbrancer. In the award the condemnor may name and make payment to parties who were owners or mortgagees at the time of the filing of the lis pendens unless subsequent purchasers or encumbrancers give written notice to the condemnor of their subsequently acquired interests in which event such parties shall be named in the award as their interests may appear.

SB391, s. 17 Section 17. 32.06 (4) of the statutes is amended to read:

SB391,25,21 32.06 (4) Right of minors and incompetents individuals adjudicated incompetent. If any person having an ownership interest in the property proposed to be condemned is a minor or an is adjudicated incompetent person, a special guardian shall be appointed for the person pursuant to s. 32.05 (4).

SB391, s. 18 Section 18. 32.06 (7) of the statutes is amended to read:

SB391,27,2 32.06 (7) Petition for condemnation proceedings. If the jurisdictional offer is not accepted within the periods limited in sub. (6) or the owner fails to consummate an acceptance as provided in sub. (6), the condemnor may present a verified petition to the circuit court for the county in which the property to be taken is located, for proceedings to determine the necessity of taking, where such determination is required, and the amount of just compensation. The petition shall state that the jurisdictional offer required by sub. (3) has been made and rejected; that it is the intention of the condemnor in good faith to use the property or right therein for the specified purpose. It shall name the parties having an interest of record in the property as near as may be and shall name the parties who are minors or persons of unsound mind, who are adjudicated incompetent, or whose location is unknown. The petition may not disclose the amount of the jurisdictional offer, and if it does so it is a nullity. The petition shall be filed with the clerk of the court. Notice of the petition shall be given as provided in s. 32.05 (4) to all persons having an interest of record in the property, including the special guardian appointed for minors or individuals adjudicated incompetent persons. A lis pendens shall be filed on the date of filing the petition. The date of filing the lis pendens is the "date of evaluation" of the property for the purpose of fixing just compensation, except that if the property is to be used in connection with the construction of a facility, as defined under s. 196.491 (1), the "date of evaluation" is the date that is 2 years prior to the date on which the certificate of public convenience and necessity is issued for the facility. The hearing on the petition may not be earlier than 20 days after the date of its filing unless the petitioner acquired possession of the land under s. 32.12 (1) in which event this hearing is not necessary. If the petitioner is entitled to condemn the property or any portion of it, the judge immediately shall assign the matter to the chairperson of the county condemnation commissioners for hearing under s. 32.08. An order by the judge determining that the petitioner does not have the right to condemn or refusing to assign the matter to the chairperson of the county condemnation commissioners may be appealed directly to the court of appeals.

SB391, s. 19 Section 19. 32.075 (3) (b) of the statutes is amended to read:

SB391,27,13 32.075 (3) (b) If the person is a minor or an individual adjudicated incompetent, the notice under par. (a) shall be to the special guardian appointed for the person him or her. The notice under par. (a) shall state that the person, or, if the person is deceased, the person's heirs, may petition the circuit court of the county in which the property is located, within 90 days after receipt of the notice, for an order to require the public utility to return the interest in the property to the petitioner. The circuit court shall grant the petition and shall make a formal order returning the petitioner's interest in the property. The order shall operate to divest any title of the public utility to the property subject to the petition and to automatically discharge any lis pendens filed in relation to the condemnation of the property.

SB391, s. 20 Section 20. 32.22 (6) (b) of the statutes is amended to read:

SB391,27,16 32.22 (6) (b) If any owner is a minor or an individual adjudicated incompetent person, a special guardian shall be appointed under s. 32.05 (4).

SB391, s. 21 Section 21. 32.64 of the statutes is repealed.

SB391, s. 22 Section 22. 36.27 (2) (a) 5. of the statutes is amended to read:

SB391,27,22 36.27 (2) (a) 5. Any minor student under guardianship in this state pursuant to ch. 48 or 880 whose legal guardian has been a bona fide resident of this state for at least 12 months next preceding the beginning of any semester or session for which such student registers at an institution.

SB391, s. 23 Section 23. 40.08 (9) of the statutes is amended to read:

SB391,28,5 40.08 (9) Payments of benefits to minors and incompetents individuals found incompetent. In any case in which a benefit amount becomes payable to a minor or to a person adjudged mentally an individual adjudicated incompetent, the department may waive guardianship proceedings, and pay the benefit to the person providing for or caring for the minor, or to the spouse or the, parent, or other relative by blood or adoption providing for or caring for the individual adjudicated incompetent person.

SB391, s. 24 Section 24. 45.36 (1) (b) of the statutes is amended to read:

SB391,28,12 45.36 (1) (b) "Duly authorized representative" means any person authorized in writing by the veteran to act for the veteran, or a legally constituted representative if the veteran is adjudicated incompetent or deceased. Where for proper reason no representative has been or will be appointed, the veteran's spouse, an adult child, or, if the veteran is unmarried, either parent shall be recognized as the duly authorized representative.

SB391, s. 25 Section 25. 46.011 (intro.) of the statutes is amended to read:

SB391,28,14 46.011 Definitions. (intro.) In chs. 46, 48, 50, 51, 54, 55 and 58:

SB391, s. 26 Section 26. 46.27 (1) (e) of the statutes is amended to read:

SB391,28,18 46.27 (1) (e) "Voluntary" means according to a person's an individual's free choice, if competent, or by choice of a his or her guardian, if the individual is adjudicated incompetent.

SB391, s. 27 Section 27. 46.977 (1) (a) of the statutes is amended to read:

SB391,28,21 46.977 (1) (a) "Guardian" has the meaning provided given in s. 880.01 (3) 54.01 (10).

SB391, s. 28 Section 28. 46.977 (2) (a) of the statutes is amended to read:

SB391,29,5 46.977 (2) (a) Annually, prior to April 30, an organization may apply to the department for a grant under this section for the purpose of recruiting, training, monitoring and assisting guardians for persons determined to be individuals found incompetent under ch. 880 54. By June 30, the department shall determine which organizations will receive a grant during the following fiscal year based on the criteria under par. (c). No grant may be awarded unless the applicant provides matching funds equal to 10% of the amount of the award. The department shall make grants under this section from the appropriation under s. 20.435 (7) (cg).

SB391, s. 29 Section 29. 46.977 (2) (b) 1. of the statutes is amended to read:

SB391,29,8 46.977 (2) (b) 1. Recruit individuals or organizations to act as guardians for persons determined to be individuals found incompetent under ch. 880 54.

SB391, s. 30 Section 30. 46.977 (2) (c) 2. of the statutes is amended to read:

SB391,29,12 46.977 (2) (c) 2. The extent to which the proposed program will effectively recruit, train, monitor and assist guardians for persons determined to be individuals found incompetent under ch. 880 54.

SB391, s. 31 Section 31. 48.14 (2) (b) of the statutes is amended to read:

SB391,29,17 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), 48.977, and 48.978 and ch. 880 54 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.

SB391, s. 32 Section 32. 48.14 (11) of the statutes is amended to read:

SB391,29,19 48.14 (11) Granting visitation privileges under s. 880.155 54.56.

SB391, s. 33 Section 33. 48.345 (intro.) of the statutes is amended to read:

SB391,30,10 48.345 Disposition of child or unborn child of child expectant mother adjudged in need of protection or services. (intro.) If the judge finds that the child is in need of protection or services or that the unborn child of a child expectant mother is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan, except that the order may not place any child not specifically found under chs. 46, 49, 51, 54, or 115 and 880 to be developmentally disabled, mentally ill, or to have a disability specified in s. 115.76 (5) in facilities which that exclusively treat those categories of children, and the court may not place any child expectant mother of an unborn child in need of protection or services outside of the child expectant mother's home unless the court finds that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The dispositions under this section are as follows:

SB391, s. 34 Section 34. 48.347 (intro.) of the statutes is amended to read: