AB629: Bill Text

A Wisconsin court that has jurisdiction to appoint a guardian may decline to exercise its jurisdiction if it determines that another state's court is a more appropriate forum. The bill provides procedures for the Wisconsin court to decline jurisdiction and specifies factors the court must consider in determining whether it is an appropriate forum. The bill specifies actions the court may take if it determines it acquired jurisdiction to appoint a guardian of the person or issue an order to appoint a guardian of the estate because of unjustifiable conduct. In addition, the bill specifies actions the court may and must take if petitions for appointment of a guardian of the person or issuance of an order to appoint a guardian of the estate are filed in more than one state.

Subchapter III: Transfer of guardianship

Under the bill, a guardian of the person or the estate appointed in Wisconsin may petition the court to transfer the guardianship to another state. Notice of a transfer petition must be given to the persons that would be entitled to notice of a petition for the appointment of a guardian in Wisconsin. Upon request of the guardian, the individual subject to the guardianship, or a person who is required to be notified of the transfer petition or if the court so decides, the court must hold a hearing on a transfer petition. The bill requires the court to issue an order provisionally granting the transfer petition and to direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the other state's court and if other circumstances are satisfied. Upon the Wisconsin court's receipt of a provisional order accepting the proceeding from the court to which the proceeding is to be transferred and the documents required to terminate a guardianship in Wisconsin, the court must issue a final order confirming the transfer and terminating the guardianship.

Under the bill, to confirm transfer of a guardianship to Wisconsin, the guardian of the person or the estate is required to petition the Wisconsin court to accept the guardianship and include a certified copy of the other state's provisional order of transfer. The bill eliminates the list of additional information required to be included with that petition under current law. Notice of a petition to accept the transfer must be given to those persons entitled to notice of a petition for the appointment of a guardian in both Wisconsin and the state from which the guardianship would be transferred. The bill, therefore, eliminates the list of individuals entitled to notice of receipt and acceptance of a foreign guardianship under current law. Under the bill, upon request of the guardian, the individual subject to the guardianship, or a person required to be notified of the petition to accept the transfer, or on the court's own accord, the court must hold a hearing on the petition to accept the transfer. The bill requires the court to issue a provisional order granting the petition to accept transfer unless a certain objection is made or the guardian is ineligible for appointment in this state. Upon receipt of a final order from a court of another state transferring the proceeding to Wisconsin, the Wisconsin court must issue the final order accepting the proceeding and appointing the guardian in Wisconsin. The court must determine, no later than 60 days after the final order accepting transfer, whether the guardianship needs to be modified to conform to Wisconsin law. If a petitioner requests the expansion of the guardian's powers granted in another state, the court must hold a hearing. In granting a petition to accept transfer, the Wisconsin court must recognize a guardianship order from the other state including the determination of the incapacity of the respondent and the appointment of the guardian. Even if a Wisconsin court denies a petition to accept transfer of a guardianship from another state, the guardian may seek appointment as guardian in Wisconsin under Wisconsin law if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer. The court may appoint a guardian ad litem at any time to represent the respondent's interests and must appoint a guardian ad litem if there is an objection to a transfer or to the acceptance of a transfer.

Subchapter IV: Registration and recognition of orders from other states

Under the bill, a guardian of the person or the estate who has been appointed in another state, whose appointment petition as a guardian is not pending in Wisconsin, and who has notified the appointing court of intent to register, may register the guardianship order in Wisconsin by following certain procedures. Upon registration of a guardianship from another state, the bill allows the guardian to exercise all powers authorized in the order of appointment in Wisconsin, except as prohibited under or limited by Wisconsin laws. Under the bill, a Wisconsin court may grant any relief available to enforce a registered order.

Uniformity

The bill requires that consideration be given to the need to promote uniformity of the law with respect to its subject matter among the state that enacts it.

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:

AB629,1 Section 1. Chapter 53 of the statutes is created to read:

AB629,4,4 Chapter 53 uniform adult guardianship jurisdiction

AB629,4,6 Subchapter I General Provisions

AB629,5,9 53.01 Purpose; construction. This chapter applies to the process of determining jurisdiction over the person for the purpose of a guardianship proceeding or matter. The chapter is intended to supplement but not replace the procedure for petitioning for a guardianship under ch. 54 and for protective placement or services under ch. 55. The purpose of this chapter is to resolve potential conflicts regarding jurisdiction between states and to make uniform the laws with respect to this chapter among those states. To the extent there is a conflict in procedure between this chapter and the provisions of ch. 54 or 55, the procedures in ch. 54 or 55 supersede the conflicting provision of this chapter.

AB629,5,10 53.02 Definitions. In this chapter:

AB629,5,11 (1) “Abuse” has the meaning given in s. 46.90 (1) (a).

AB629,5,12 (2) “Financial exploitation” has the meaning given in s. 46.90 (1) (ed).

AB629,5,19 (3) “Guardian of the estate” means a person appointed by the court of any state to administer the property of an adult on the basis of a finding of incapacity or incompetence or on the basis of being found to be a spendthrift, including a person appointed guardian of the estate under s. 54.10 (2) or (3) and including a conservator appointed in another state where that term is used for a role similar to that of a guardian of the estate under s. 54.10 (2) or (3). “Guardian of the estate” does not include a person appointed voluntary conservator under s. 54.76 (2).

AB629,5,22 (4) “Guardian of the person" means a person appointed by the court to make decisions regarding the person of an adult, including a guardian of the person appointed under s. 54.10 (3).

AB629,5,24 (5) “Guardianship of the person order" means an order appointing a guardian of the person.

AB629,6,3 (6) “Guardianship of the person proceeding" means a judicial proceeding in which an order for the appointment of a guardian of the person is sought or has been issued.

AB629,6,10 (7) “Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least 6 consecutive months immediately before the filing of a petition for an order appointing a guardian of the estate or the appointment of a guardian of the person; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least 6 consecutive months ending within the 6 months prior to the filing of the petition.

AB629,6,11 (8) “Incapacity” has the meaning given in s. 54.01 (15).

AB629,6,12 (9) “Neglect” has the meaning given in s. 46.90 (1) (f).

AB629,6,16 (10) “Party" means the respondent, petitioner, guardian of the person, guardian of the estate, interested person, as defined in s. 54.01 (17), or any other person allowed by the court to participate in a guardianship of the person proceeding or proceeding for the appointment of a guardian of the estate.

AB629,6,17 (11) “Person" has the meaning given in s. 990.01 (26).

AB629,6,19 (12) “Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

AB629,6,20 (13) “Residence” has the meaning given in s. 55.01 (6t).

AB629,6,22 (14) “Respondent" means an adult for whom an order appointing a guardian of the estate or the appointment of a guardian of the person is sought.

AB629,6,23 (15) “Self-neglect” has the meaning given in s. 46.90 (1) (g).

AB629,7,3 (16) “Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence considering the factors in s. 53.21.

AB629,7,7 (17) “State," notwithstanding s. 990.01 (40), means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

AB629,7,10 53.03 International application. A court of this state may treat a foreign country as if it were a state for the purpose of applying this subchapter and subchs. II, III, and V.

AB629,7,16 53.04 Communication between courts. (1) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in sub. (2), the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.

AB629,7,18 (2) Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.

AB629,7,22 53.05 Cooperation between courts. (1) In a guardianship of the person proceeding or proceeding for appointment of a guardian of the estate in this state, a court of this state may request the appropriate court of another state to do any of the following:

AB629,7,23 (a) Hold an evidentiary hearing.

AB629,7,25 (b) Order a person in that state to produce evidence or give testimony under procedures of that state.

AB629,8,1 (c) Order that an evaluation or assessment be made of the respondent.

AB629,8,2 (d) Order any appropriate investigation of a person involved in a proceeding.

AB629,8,6 (e) Forward to the court of this state a certified copy of the transcript or other record of a hearing under par. (a) or any other proceeding, any evidence otherwise produced under par. (b), and any evaluation or assessment prepared in compliance with an order under par. (c) or (d).

AB629,8,10 (f) Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the individual subject to a guardianship of the person or of the estate.

AB629,8,13 (g) Issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 CFR 160.103.

AB629,8,18 (2) If a court of another state in which a guardianship of the person proceeding or proceeding to appoint a guardianship of the estate is pending requests assistance of the kind provided in sub. (1), a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

AB629,8,25 53.06 Taking testimony in another state. (1) In a guardianship of the person proceeding or proceeding for the appointment of a guardian of the estate, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.

AB629,9,5 (2) In a guardianship of the person proceeding or proceeding for the appointment of a guardian of the estate, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.

AB629,9,8 (3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.

AB629,9,10 subchapter ii jurisdiction

AB629,9,13 53.21 Significant-connection factors. In determining under ss. 53.23 and 53.31 whether a respondent has a significant connection with a particular state, the court shall consider all of the following:

AB629,9,15 (1) The location of and strength of connection to the respondent's family, other significant social connections, and service providers.

AB629,9,18 (2) The location of other persons required to be notified of the guardianship of the person proceeding or proceeding to appoint a guardian of the estate and the location of substantial evidence relating to the respondent.

AB629,9,20 (3) The length of time the respondent at any time was physically present in the state, past or current status as a resident, and the duration of any absence.

AB629,9,21 (4) The location of the resident's property.

AB629,9,24 (5) The extent to which the respondent has ties to the state, such as voting registration, state or local tax return filing, vehicle registration, driver's license, work, social relationship, and receipt of services.

AB629,10,3 53.22 Exclusive basis. This subchapter provides the exclusive basis for personal jurisdiction for a court of this state to appoint a guardian of the person or issue an order appointing a guardian of the estate for an adult.

AB629,10,6 53.23 Jurisdiction. A court of this state has personal jurisdiction to appoint a guardian of the person or issue an order appointing a guardian of the estate for a respondent if any of the following is satisfied:

AB629,10,7 (1) This state is the respondent's home state.

AB629,10,9 (2) On the date the petition is filed, this state is a significant-connection state and any of the following is satisfied:

AB629,10,12 (a) The respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum.

AB629,10,16 (b) The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and before the court makes the appointment or issues the order all of the following are satisfied:

AB629,10,18 1. A petition for an appointment or order is not filed in the respondent's home state.

AB629,10,22 2. An objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding, or, if an objection has been made, the objector has not established that exercise of jurisdiction by the court would be contrary to the interests of the respondent.

AB629,10,24 3. The court in this state concludes that it is an appropriate forum under the factors set forth in s. 53.26.

AB629,11,5 (3) This state does not have jurisdiction under either sub. (1) or (2), the respondent's home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the constitutions of this state and the United States.

AB629,11,6 (4) The requirements for special jurisdiction under s. 53.24 are met.

AB629,11,8 53.24 Special jurisdiction. (1) A court of this state lacking jurisdiction under s. 53.23 (1) to (3) has special jurisdiction to do any of the following:

AB629,11,11 (a) Appoint a temporary guardian of the person or guardian of the estate under s. 54.50 in accordance with the standards and procedures and for the time periods specified in s. 54.50.

AB629,11,13 (b) Issue an order with respect to real or tangible personal property located in this state.

AB629,11,17 (c) Appoint a guardian of the person or guardian of the estate for an individual subject to a guardianship of the person or of the estate for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to s. 53.31.

AB629,11,22 (2) If a petition for the appointment of a temporary guardian is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the appointment of a temporary guardian.

AB629,12,2 53.25 Exclusive and continuing jurisdiction. Except as otherwise provided in s. 53.24, a court that has appointed a guardian of the person or issued an order appointing a guardian of the estate consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

AB629,12,6 53.26 Appropriate forum. (1) A court of this state having jurisdiction under s. 53.23 to appoint a guardian of the person or issue an order appointing a guardian of the estate may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.

AB629,12,11 (2) If a court of this state declines to exercise its jurisdiction under sub. (1), it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian of the person or issuance of an order appointing a guardian of the estate be filed promptly in another state.

AB629,12,13 (3) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including all of the following:

AB629,12,14 (a) Any expressed preference of the respondent.

AB629,12,17 (b) Whether abuse, neglect, self-neglect, or financial exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, self-neglect, or financial exploitation.

AB629,12,19 (c) The length of time the respondent was physically present in or had established residence in this or another state.

AB629,12,20 (d) The distance of the respondent from the court in each state.

AB629,12,21 (e) The financial circumstances of the respondent's estate.

AB629,12,22 (f) The nature and location of the evidence.

AB629,12,24 (g) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence.

AB629,13,2 (h) The familiarity of the court of each state with the facts and issues in the proceeding.

AB629,13,4 (i) If an appointment is made, the court's ability to monitor the conduct of the guardian of the person or guardian of the estate.

AB629,13,8 53.27 Jurisdiction declined by reason of conduct. (1) If at any time a court of this state determines that it acquired jurisdiction to appoint a guardian of the person or issue an order appointing a guardian of the estate because of unjustifiable conduct, the court may do any of the following:

AB629,13,9 (a) Decline to exercise jurisdiction.

AB629,13,15 (b) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or to prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian of the person or issuance of an order appointing a guardian of the estate is filed in a court of another state having jurisdiction.

AB629,13,16 (c) Continue to exercise jurisdiction after considering all of the following: