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48.978(3)(c)
(c)
Commencement of duty and authority of designated standby guardian. 48.978(3)(c)1.1. If a written designation under
par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent'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).
48.978(3)(c)2.
2. If a written designation under
par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent's death, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a certificate of the parent's death.
48.978(3)(c)3.
3. If a written designation under
par. (a) indicates that the parent intends for the duty and authority of the standby guardian to begin on the parent becoming debilitated and consenting to the beginning of the standby guardianship, the duty and authority of the standby guardian shall begin on the receipt by the standby guardian of a copy of a determination of debilitation under
sub. (4) and a copy of the parent's written consent to the beginning of that duty and authority signed by the parent in the presence of 2 witnesses, neither of whom may be the standby guardian, and by the standby guardian. If the parent is physically unable to sign that written consent, another person 18 years of age or over who is not the standby guardian may sign the written consent on behalf of the parent and at the direction of the parent, in the presence of the parent and 2 witnesses, neither of whom may be the standby guardian.
48.978(3)(c)4.
4. Subject to
par. (d) 2., the standby guardian shall file a petition under
par. (e) for judicial appointment as standby guardian of the child within 180 days after the date on which the standby guardianship begins. If the standby guardian fails to file that petition within those 180 days, the standby guardian's duty and authority shall end 180 days after the date on which the standby guardianship began. If the standby guardian files the petition after the expiration of those 180 days, the duty and authority of the standby guardian shall begin again on the date on which the petition is filed.
48.978(3)(d)
(d)
Suspension of duty and authority of designated standby guardian. 48.978(3)(d)1.1. The duty and authority of a standby guardian designated under
par. (a) shall be suspended on the receipt by the standby guardian of a copy of a determination of recovery or remission under
sub. (5).
48.978(3)(d)2.
2. If the standby guardian receives a determination of recovery or remission under
subd. 1. before the standby guardian files the petition under
par. (e), the standby guardian need not file the petition under
par. (e).
48.978(3)(d)3.
3. If the standby guardian receives a determination of recovery or remission under
subd. 1. after the standby guardian files the petition under
par. (e), but before the standby guardian is judicially appointed under
par. (g), the standby guardian shall file that determination with the court with which the petition is filed by the time of the next hearing on the petition or within 7 days after the date on which the standby guardian receives that determination, whichever is sooner. On compliance with this subdivision, the court shall dismiss the petition. If the standby guardian fails to file that determination with that court within those 7 days, the court may rescind the guardianship.
48.978(3)(d)4.
4. If the standby guardian receives a determination of recovery or remission under
subd. 1. after the standby guardian is judicially appointed under
par. (g), the standby guardian shall file that determination with the court that entered the guardianship order within 90 days after the date on which the standby guardian receives that determination. If the standby guardian fails to file that determination with that court within those 90 days, the court may rescind the guardianship order.
48.978(3)(d)5.
5. The duty and authority of a standby guardian that are suspended under
subd. 1. shall begin again as provided in
par. (c).
48.978(3)(e)
(e)
Petition for judicial appointment. A petition for judicial appointment as standby guardian of a child under this subsection shall be in the same form as a petition under
sub. (2) (b) and shall set forth with specificity the information specified in
sub. (2) (b) 1. to
4. and
7. to
11. The petition shall also contain a statement that the parent has become incapacitated, has died, or has become debilitated and has consented to the beginning of the duty and authority of the standby guardian. In addition, the petition shall be accompanied by the following documentation:
48.978(3)(e)1.
1. The written designation under
par. (a) signed or consented to by each parent of the child or, if a parent cannot with reasonable diligence be located or has refused to consent to the designation, the written designation under
par. (a) signed by one parent and a statement of the efforts made to find the other parent or of the fact that the other parent has refused to consent to the designation.
48.978(3)(e)2.
2. A copy of the determination of incapacity received under
par. (c) 1., the certificate of death received under
par. (c) 2. or the determination of debilitation and written consent received under
par. (c) 3.
48.978(3)(e)3.
3. If the petition is filed by a person who has been designated as an alternate standby guardian, a statement that the person designated as standby guardian is unwilling or unable to act as standby guardian and the factual basis for that statement.
48.978(3)(f)1.1. The petitioner shall cause the petition and notice of the time and place of the plea hearing under
subd. 2. to be served on all of the persons specified in
sub. (2) (c) 1. a. to
f. and on the parent who has made the written designation under
par. (a), if living. Service shall be made in the manner provided in
sub. (2) (c) 2.
48.978(3)(f)2.
2. The court shall hold a plea hearing, a fact-finding hearing and a dispositional hearing in the manner provided in
sub. (2) (d) to
(g) and shall enter a dispositional order as provided in
sub. (2) (j) and
(k) 1., except that at the fact-finding hearing any party may present evidence relevant to the issues specified in
par. (g), and at the conclusion of that hearing the court shall immediately proceed to a dispositional hearing, unless an adjournment is requested, if the court finds by clear and convincing evidence that the conditions specified in
par. (g) have been met.
48.978(3)(g)
(g)
Required findings by court. The court shall appoint a person to be a standby guardian under this subsection if, after making the following findings by clear and convincing evidence, the court determines that the appointment is in the best interests of the child:
48.978(3)(g)1.
1. That the person was designated as standby guardian in accordance with
pars. (a) and
(b).
48.978(3)(g)2.
2. That the standby guardian has received a determination of incapacity, a death certificate, or a determination of debilitation and written consent, as provided in
par. (c) 1.,
2. or
3., whichever is applicable.
48.978(3)(g)3.
3. That the child has no parent who is willing and able to exercise the duty and authority of guardianship.
48.978(3)(g)4.
4. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent or, if a parent has refused to consent to the designation of the standby guardian, the consent was unreasonably withheld.
48.978(3)(g)5.
5. That, if the petitioner is a person designated as an alternate standby guardian, the person designated as standby guardian is unwilling or unable to act as standby guardian.
48.978(3)(h)
(h)
Dispositional factors. In determining the appropriate disposition under
par. (g), 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:
48.978(3)(h)1.
1. Whether the person designated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
48.978(3)(h)2.
2. The willingness and ability of the person designated as standby guardian or alternate standby guardian to serve as the child's guardian.
48.978(3)(i)
(i)
Appearance by parent. If the parent who has made a written designation under
par. (a) is medically unable to appear at a hearing specified in
par. (f) 2., the court may dispense with the parent's appearance, except on the motion of a party and for good cause shown.
48.978(3)(j)1.1. A parent who has made a written designation under
par. (a) may, at any time before the filing of a petition under
par. (e), revoke a standby guardianship created under this subsection by executing a written revocation and notifying the standby guardian in writing of the revocation, making a subsequent written designation under
par. (a) or verbally revoking the standby guardianship in the presence of 2 witnesses.
48.978(3)(j)2.
2. After a petition under
par. (e) has been filed but before the standby guardian has been judicially appointed under
par. (g), a parent who has made a written designation under
par. (a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court with which the petition has been filed and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may dismiss the petition and rescind the guardianship if the court determines that dismissal of the petition and rescission of the guardianship are in the best interests of the child.
48.978(3)(j)3.
3. After the standby guardian has been judicially appointed under
par. (g), a parent who has made a written designation under
par. (a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court that entered the guardianship order and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may rescind the guardianship order if the court determines that rescission of the guardianship order is in the best interests of the child.
48.978(3)(k)1.1. A person whom a parent has designated as a standby guardian under
par. (a) may, at any time before the filing of a petition under
par. (e), renounce that designation by executing a written renunciation and notifying the parent, if living, in writing of that renunciation.
48.978(3)(k)2.
2. After a petition under
par. (e) has been filed, but before the standby guardian has been judicially appointed under
par. (g), a person whom a parent has designated as a standby guardian under
par. (a) may renounce that designation by executing a written renunciation, filing the renunciation with the court with which the petition has been filed and notifying the parent, if living, in writing of that renunciation. On compliance with this subdivision, the court may accept the renunciation and rescind the guardianship order if the court finds that the renunciation and rescission are in the best interests of the child.
48.978(3)(k)3.
3. A person who has been judicially appointed as a standby guardian under
par. (g) may, at any time after that appointment, resign that appointment by executing a written resignation, filing the resignation with the court that entered the guardianship order and notifying the parent who designated the person as a standby guardian under
par. (a), if living, in writing of that resignation. On compliance with this subdivision, the court may accept the resignation and rescind the guardianship order if the court determines that the resignation and rescission are in the best interests of the child.
48.978(4)
(4) Determination of incapacity or debilitation. 48.978(4)(a)1.1. A determination of incapacity or debilitation under this section shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the cause and nature of the parent's incapacity or debilitation and the extent and probable duration of the incapacity or debilitation.
48.978(4)(a)2.
2. If a standby guardian's identity is known to an attending physician making a determination of incapacity or debilitation, the attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian.
48.978(4)(b)
(b)
On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's incapacity or debilitation for purposes of this section.
48.978(4)(c)
(c)
Information to be provided to parent. On receipt of a determination of a parent's incapacity, a standby guardian shall inform the parent of all of the following, if the parent is able to comprehend that information:
48.978(4)(c)1.
1. That a determination of incapacity has been made and, as a result, the duty and authority of the standby guardian have begun.
48.978(5)
(5) Determination of recovery or remission. 48.978(5)(a)1.1. A determination that a parent has recovered or is in remission from his or her incapacity or debilitation shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the extent and probable duration of the recovery or remission.
48.978(5)(a)2.
2. If a standby guardian's identity is known to an attending physician making a determination of recovery or remission, the attending physician shall provide a copy of the determination of recovery or remission to the standby guardian.
48.978(5)(b)
(b)
On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's recovery or remission for purposes of this section.
48.978(6)
(6) Parental rights; duty and authority of standby guardian. 48.978(6)(a)(a)
Parental rights. The beginning of the duty and authority of a standby guardian under
sub. (2) or
(3) does not, in itself, divest a parent of any parental rights.
48.978(6)(b)1.1. Unless limited under
subd. 2., a standby guardian appointed under
sub. (2) or designated under
sub. (3) shall have all of the duties and authority specified in
s. 48.023.
48.978(6)(b)2.
2. The court may order or a parent may provide that the duties and authority of a standby guardian appointed under
sub. (2) or designated under
sub. (3) be limited. The duties and authority of a limited standby guardian shall be as specified by the order of appointment under
sub. (2) (j) 2. or the written designation under
sub. (3) (a). All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited standby guardian appointed under
sub. (2) or designated under
sub. (3) to the extent those provisions are relevant to the duties or authority of the limited standby guardian, except as limited by the order of appointment or written designation.
48.978(7)(a)(a) Except when a different right, remedy or procedure is provided under this section, the rights, remedies and procedures provided in
ch. 880 shall govern a standby guardianship created under this section.
48.978(7)(b)
(b) This section does not abridge the duties or authority of a guardian appointed under
ch. 880.
48.978(7)(c)
(c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian under
ch. 880.
48.978 History
History: 1997 a. 334.
MISCELLANEOUS PROVISIONS
48.98
48.98
Interstate placement of children. 48.98(1)
(1) No person may bring a child into this state or send a child out of this state for the purpose of placing the child in foster care or treatment foster care or for the purpose of adoption without a certificate from the department that the home is suitable for the child.
48.98(2)(a)(a) Any person, except a county department or licensed child welfare agency, who brings a child into this state for the purpose of placing the child in a foster home or treatment foster home shall, before the child's arrival in this state, file with the department a $1,000 noncancelable bond in favor of this state, furnished by a surety company licensed to do business in this state. The condition of the bond shall be that the child will not become dependent on public funds for his or her primary support before the child reaches age 18 or is adopted.
48.98(2)(b)
(b) By filing the bond required under
par. (a), the person filing the bond and the surety submit to the jurisdiction of the court in the county in which the person resides for purposes of liability on the bond, and appoint the clerk of the court as their agent upon whom any papers affecting their bond liability may be served.
48.98(2)(c)
(c) If upon affidavit of the department it appears to the court that the condition of the bond has been violated, the court shall order the person who filed the bond and the surety to show cause why judgment on the bond should not be entered for the department. If neither the person nor the surety appears for the hearing on the order to show cause, or if the court concludes after the hearing that the condition of the bond has been violated, the court shall enter judgment on the bond for the department against the person who filed the bond and the surety.
48.98(2)(d)
(d) The department shall periodically bill the person who filed the bond and the surety under
s. 46.03 (18) (b) or
46.10 for the cost of care and maintenance of the child until the child is adopted or becomes age 18, whichever is earlier. The guardian and surety shall also be liable under the bond for costs incurred by the department in enforcing the bond.
48.98(2)(e)
(e) The department may waive the bond requirement under
par. (a).
48.98(3)
(3) The person bringing or sending the child into or out of this state shall report to the department, at least once each year and at any other time required by the department, concerning the location and well-being of the child, until the child is 18 years of age or is adopted.
48.98(4)(a)(a) This section applies only to interstate placements of children which are not governed by
s. 48.988.
48.98(4)(b)
(b) Section 48.839 governs the placement of children who are not U.S. citizens and not under agency guardianship who are brought into this state from a foreign jurisdiction for the purpose of adoption.
48.98(5)
(5) The department may promulgate all rules necessary for the enforcement of this section.
48.981
48.981
Abused or neglected children and abused unborn children. 48.981(1)(ag)
(ag) "Agency" means a county department, the department in a county having a population of 500,000 or more or a licensed child welfare agency under contract with a county department or the department in a county having a population of 500,000 or more to perform investigations under this section.
48.981(1)(am)
(am) "Caregiver" means, with respect to a child who is the victim or alleged victim of abuse or neglect or who is threatened with abuse or neglect, any of the following persons:
48.981(1)(am)1.
1. The child's parent, grandparent, stepparent, brother, sister, stepbrother, stepsister, half brother or half sister.
