880.08(3)(am)3.
3. A minor proposed ward over 14 years of age unless the minor appears at the hearing.
880.08(3)(am)4.
4. Any other person, agency, institution, welfare department or other entity having the legal or actual custody of the minor.
880.08(3)(e)
(e) No notice under
par. (am) need be given to parents whose rights have been judicially terminated.
880.08(4)
(4) Rehearings. Notice of a rehearing to determine if a ward is a proper subject to continue under guardianship shall be given as required for the appointment of a guardian.
880.08 Annotation
Those opposing the presence of an alleged incompetent at the hearing must prove that inability to attend is more probable than not. Sub. (1) specifies the mode of proof: the guardian ad litem must certify in writing to the court the specific reasons why the person is unable to attend. When this requirement is not met, the trial court lacks competency to proceed. A guardian ad litem's oral explanation that the alleged incompetent waives his or her right to be present at the hearing is inadequate. Knight v. Milwaukee County, 2002 WI App 194, 256 Wis. 2d. 1000,
651 N.W.2d 890,
00-0929.
880.09
880.09
Nomination; selection of guardians. The court shall consider nominations made by any interested person and, in its discretion, shall appoint a proper guardian, having due regard for the following:
880.09(1)
(1) Nomination by minor. A minor over 14 years may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is without the state, or if other good reason exists, the court may dispense with the right of nomination.
880.09(2)
(2) Preference. If one or both of the parents of a minor, a developmentally disabled person or a person with other like incapacity are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects. The court shall appoint a corporate guardian under
s. 880.35 only if no suitable individual guardian is available.
880.09(3)
(3) Effect of nomination by minor. If neither parent is suitable and willing, the court may appoint the nominee of a minor.
880.09(4)
(4) Guardian of the person nominated by will. Subject to the rights of a surviving parent, a parent may by will nominate a guardian of the person of his or her minor child.
880.09(5)
(5) Guardian of the estate nominated by will. A parent may by will nominate a guardian of the estate of the parent's minor child and may waive the requirement of a bond as to such estate derived through the will.
880.09(6)
(6) Testamentary guardianship of certain persons. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate of any of his or her minor children who are in need of guardianship. For a person over the age of 18 found to be in need of guardianship under
s. 880.33 by reason of a developmental disability or other like incapacity, a parent may by will nominate a testamentary guardian.
880.09(7)
(7) Anticipatory nomination; preference. Any person other than a minor may, at such time as the person has sufficient capacity to form an intelligent preference, execute a written instrument, in the same manner as the execution of a will under
s. 853.03, nominating a person to be appointed as guardian of his or her person or property or both in the event that a guardian is in the future appointed. Such nominee shall be appointed as guardian by the court unless the court finds that the appointment of such nominee is not in the best interests of the person for whom, or for whose property, the guardian is to be appointed.
880.09 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.09;
1973 c. 284;
1975 c. 393;
1977 c. 449;
1993 a. 486.
880.09 Annotation
An unfit parent's nomination of a person to serve as guardian of his or her children should be weighed by the court. In re Guardianship of Schmidt,
71 Wis. 2d 317,
237 N.W.2d 919 (1976).
880.09 Annotation
A parent's fundamental liberty interest in the care, custody, and control of a child is not violated if his or her nomination of a guardian is not presumed to be in the child's best interests when the parent is unable to have custody and provide care. The preference in sub. (2) does not address a parent's wishes for another to act as guardian when the parent is not suitable to act as guardian. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M. 2004 WI App 45,
270 Wis. 2d 411,
678 N.W.2d 285,
02-2640.
880.10
880.10
Notice of appointment. If for any reason the court fails to appoint as guardian the nominee of the minor, the guardian who qualifies shall give notice of the guardian's appointment to the minor by certified mail addressed to the minor's last-known post-office address and an affidavit of such mailing shall be filed with the court within 10 days after the issuance of letters.
880.10 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.10;
1993 a. 486.
880.12
880.12
Determination and order appointing guardian. 880.12(1)(1) The court shall after hearing determine whether the person is a proper subject for guardianship. If the person is found to be in need of a guardian, the court shall appoint one or more guardians but not more than one guardian of the person shall be appointed unless they be husband and wife. The order shall specify the amount of the bond, if any, to be given.
880.12(2)
(2) In appointing a guardian for a person who has been admitted to a nursing home or a community-based residential facility under
s. 50.06, the court shall make a finding as to whether the person's incompetence is potentially reversible.
880.12 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.12;
1993 a. 187.
880.125
880.125
Sufficiency of bond. In any action or proceeding wherein funds are to be paid to a guardian, the trial court or court approving disbursement of such funds shall, prior to payment or approval, be satisfied as to the sufficiency of the penal sum of the guardian's bond.
880.125 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.125.
880.13(1)(1)
Form of bond. Upon the appointment of a guardian of the estate of a ward, except as provided under
s. 880.60 (9), the court may require a bond given in accordance with
ch. 878 and
s. 895.345, conditioned upon the faithful performance of the duties of the guardian.
880.13(2)(a)(a) Unless required under
s. 880.60 (9), the court may waive the requirement of a bond at any time in its discretion or if so requested in a will wherein a nomination appears.
880.13(2)(b)
(b) Whenever a guardian has or will have possession of funds with a total value of $40,000 or less, the court may direct deposit of the funds in an insured account of a bank, credit union, savings bank or savings and loan association in the name of the guardian and the ward and payable only upon further order of the court. In such event the court may waive the requirement of a bond.
880.13(3)
(3) Blanket bond for employee guardian or conservator. The circuit court may designate one or more persons who are county institutional employees, whose duty it is to act as guardian of one or more estates of incompetent persons upon appointment by the court, or as conservator for the estates of persons making application therefor, who are residents of the county home, patients of the county hospitals or county mental hospitals. The appointments shall be made subject to this chapter. The person, before entering upon duties, shall take an official oath. The court may waive the requirement of a bond or may require the person to give bond, with sufficient sureties, to the judge of the court, in a sum not less than $1,000 subject to court approval. The bond shall cover the person so designated and appointed in all guardianships and conservatorships to which the person has been or shall be appointed by the court. Additional bonds may be required from time to time. The expense of surety upon the bonds shall be paid by the county treasurer on the order of the circuit judge. The term of the person appointed shall terminate upon resignation or removal and approval of the person's accounts by the court.
880.14
880.14
When letters to be issued. When a guardian has given bond as required and the bond has been approved by the judge, letters under the seal of the court shall be issued to the guardian.
880.14 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.14;
1993 a. 486.
880.15
880.15
Temporary guardian. 880.15(1)(1)
Appointment. If, after consideration of a petition for temporary guardianship, the court finds that the welfare of a minor, spendthrift or an alleged incompetent requires the immediate appointment of a guardian of the person or of the estate, or of both, it may appoint a temporary guardian for a period not to exceed 60 days unless further extended for 60 days by order of the court. The court may extend the period only once. The authority of the temporary guardian shall be limited to the performance of duties respecting specific property, or to the performance of particular acts, as stated in the order of appointment. All provisions of the statutes concerning the powers and duties of guardians shall apply to temporary guardians except as limited by the order of appointment. The temporary guardian shall make the reports the court directs and shall account to the court upon termination of authority. The court assigned to exercise jurisdiction under
chs. 48 and
938 has exclusive jurisdiction over the appointment of a temporary guardian of a minor for medical purposes but shall proceed in accordance with this section.
880.15(1m)
(1m) Adoption by temporary guardian. No person appointed temporary guardian of a child under this section may adopt the child without complying with the adoption procedures of
ch. 48.
880.15(1s)
(1s) Notice of petition. The person petitioning for appointment of a temporary guardian shall cause notice to be given under
s. 880.08 of that petition to the minor, spendthrift or alleged incompetent and, if the appointment is made, shall give notice of the appointment to the ward. The time limits of
s. 880.08 do not apply to notice given under this subsection. The notice shall be served before or at the time the petition is filed or as soon thereafter as possible and shall include notice of the right to counsel and of the right to petition for reconsideration or modification of the temporary guardianship under
s. 880.34 within 30 days of receipt of the notice.
880.15(2)
(2) Bond of temporary guardian. Every temporary guardian appointed under
sub. (1) shall before entering upon the duties of his or her trust give bond to the judge of the circuit court in such sum and with such sureties the court designates and approves.
880.15(3)
(3) Cessation of powers. If the temporary guardianship is not sooner terminated the duties and powers of the temporary guardian shall cease upon the issuing of letters of permanent guardianship to the guardian of the ward, or, if the ward is a minor, upon his becoming of age, or when it shall be judicially determined that any other disability of the temporary ward which was the cause of the temporary guardianship has terminated. Upon termination of the temporary guardian's duties and powers, a temporary guardian of the person shall file with the court any report that the court requires. A temporary guardian of the estate shall, upon termination of duties and powers, account to the court and deliver to the person or persons entitled to them all the estate of the ward in his or her hands. Any action which has been commenced by the temporary guardian may be prosecuted to final judgment by the successor or successors in interest, if any.
880.15 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.15;
1977 c. 354,
418,
449;
1979 c. 175;
1981 c. 379;
1995 a. 77.
880.155
880.155
Visitation by grandparents and stepparents. 880.155(1)(1) In this section, "stepparent" means the surviving spouse of a deceased parent of a minor child, whether or not the surviving spouse has remarried.
880.155(2)
(2) If one or both parents of a minor child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the child, whether or not the person with custody is married. The grandparent or stepparent may file the petition in a guardianship or temporary guardianship proceeding under this chapter that affects the minor child or may file the petition to commence an independent action under this chapter. Except as provided in
sub. (3m), the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child has notice of the hearing and if the court determines that visitation is in the best interest of the child.
880.155(3)
(3) Whenever possible, in making a determination under
sub. (2), the court shall consider the wishes of the child.
880.155(3m)(a)(a) Except as provided in
par. (b), the court may not grant visitation privileges to a grandparent or stepparent under this section if the grandparent or stepparent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated.
880.155(3m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
880.155(4)
(4) The court may issue any necessary order to enforce a visitation order that is granted under this section, and may from time to time modify such visitation privileges or enforcement order upon a showing of good cause.
880.155(4m)(a)(a) If a grandparent or stepparent granted visitation privileges with respect to a child under this section is convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of a parent of the child, and the conviction has not been reversed, set aside or vacated, the court shall modify the visitation order by denying visitation with the child upon petition, motion or order to show cause by a person having custody of the child, or upon the court's own motion, and upon notice to the grandparent or stepparent granted visitation privileges.
880.155(4m)(b)
(b) Paragraph (a) does not apply if the court determines by clear and convincing evidence that the visitation would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
880.155(5)
(5) This section applies to every minor child in this state whose parent or parents are deceased, regardless of the date of death of the parent or parents.
880.155 History
History: 1975 c. 122;
1995 a. 38;
1999 a. 9.
880.155 Annotation
The adoption of a child of a deceased parent does not terminate the decedent's parents' grandparental visitation rights under s. 880.155. Grandparental Visitation of C.G.F.
168 Wis. 2d 62, N.W.2d 803 (1992).
880.155 Annotation
Section 767.245 (5) sets an appropriate standard for determining the best interests of a child under this section. The court did not exceed its authority under this section or violate a parent's constitutional rights to raise a child by ordering grandparent visitation, nor did it violate this section by ordering a guardian ad litem, mediation, and psychological evaluations. The court was not authorized by this section to order psychotherapeutic treatment that was arguably in the child's best interests, but outside the scope of visitation. F.R. v. T.B.
225 Wis. 2d 628,
593 N.W.2d 840 (Ct. App. 1999).
880.155 Annotation
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
880.155 Annotation
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
880.157
880.157
Prohibiting visitation or physical placement if a parent kills other parent. 880.157(1)
(1) Except as provided in
sub. (2), in an action under this chapter that affects a minor child, a court may not grant to a parent of the child visitation or physical placement rights with the child if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the child's other parent, and the conviction has not been reversed, set aside or vacated.
880.157(2)
(2) Subsection (1) does not apply if the court determines by clear and convincing evidence that visitation or periods of physical placement would be in the best interests of the child. The court shall consider the wishes of the child in making the determination.
880.157 History
History: 1999 a. 9.
880.16
880.16
When a guardian may be removed. 880.16(1)
(1)
Nomination by minor. When a minor ward has attained the age of 14 years a guardian of the minor ward's person, upon notice as required by the court, may be removed on petition of the ward for the purpose of having another person appointed guardian if it is for the best interest of the ward.
880.16(2)
(2) Removal for cause. When any guardian fails or neglects to discharge the guardian's trust the court may remove the guardian after such notice as the court shall direct to such guardian and all others interested.
880.16(3)(a)(a) A citation to a guardian to appear in circuit court may be served in the manner provided for substituted service for summons in the court if the guardian has absconded or keeps himself or herself concealed so as to avoid personal service or if the guardian is a nonresident of this state or has absented himself or herself therefrom for a period of one year.
880.16(3)(b)
(b) Upon filing proof of service and at the time fixed in the citation such court shall consider such matter and take proof and grant such relief as shall be just; and any order or judgment made in said proceedings shall be binding upon such guardian and shall be prima facie evidence of all facts therein recited.
880.16(4)
(4) Fraud as to ward's estate. Upon complaint made to the circuit court by any guardian or ward, or by any creditor or other person interested in the estate, or by any person having any prospective interest therein, as heir or otherwise, against any person suspected of having concealed, stolen or conveyed away any of the money, goods, effects or instruments in writing belonging to the ward the court may cite and examine such suspected person and proceed with the person as to such charge in the same manner as is provided with respect to persons suspected of concealing or stealing the effects of a deceased person in
s. 879.61.
880.16 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.16;
1977 c. 449 ss.
458,
497;
1993 a. 486.
880.17
880.17
Successor guardian. 880.17(1)(1)
Appointment. When a guardian dies, is removed by order of the court, or resigns and the resignation is accepted by the court, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor guardian. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided under this chapter for an original appointment of a guardian.
880.17(2)
(2) Notice. If the appointment under
sub. (1) is made without hearing, the successor guardian shall provide notice to the ward and all interested persons of the appointment, the right to counsel and the right to petition for reconsideration of the successor guardian. The notice shall be served personally or by mail not later than 10 days after the appointment.
880.17 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.17;
1993 a. 486;
1995 a. 73.
880.173
880.173
Guardian of the estate of a married person. 880.173(1)(1) A guardian of the estate appointed under this chapter for a married person may exercise with the approval of the court, except as limited under
s. 880.37, any management and control right over the marital property or property other than marital property and any right in the business affairs which the married person could exercise under
ch. 766 if the person were not determined under
s. 880.12 to be a proper subject for guardianship. Under this section, a guardian may consent to act together in or join in any transaction for which consent or joinder of both spouses is required or may execute a marital property agreement with the other spouse, but may not make, amend or revoke a will.
880.173(2)
(2) The powers under
sub. (1) are in addition to powers otherwise provided for a guardian of the estate.
880.173 History
History: 1983 a. 186;
1985 a. 37.
880.173 Annotation
The standard for a trial court's exercise of discretion is whether the proposed action will benefit the ward, the estate, or members of the ward's immediate family. In Matter of Guardianship of F.E.H.
154 Wis. 2d 576,
453 N.W.2d 882 (1990).
880.175
880.175
Petition for placement of assets in trust. Upon petition by the guardian, a parent, the spouse, any issue or next of kin of any person, assets of the person may, in the discretion of the court and upon its order, after such notice as the court may require, be transferred to the trustee or trustees of an existing revocable living trust created by the person for the benefit of himself or herself and those dependent upon the person for support, or to the trustee or trustees of a trust created for the exclusive benefit of the person, if a minor, which distributes to him or her at age 18 or 21, or to his or her estate, or as he or she appoints if he or she dies prior to age 18 or 21.
880.175 History
History: 1971 c. 41 s.
8;
1971 c. 171;
1971 c. 228 ss.
36,
37; Stats. 1971 s. 880.175;
1977 c. 409.
880.18
880.18
Inventory. When a guardian of the estate has been appointed an inventory shall be made in the same manner and subject to the same requirements as are provided for the inventory of a decedent's estate. An appraisal of all or any part of the ward's estate shall be made when ordered by the court.
880.18 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.18.
880.19
880.19
Management of ward's estate. 880.19(1)
(1)
General duties. The guardian of the estate shall take possession of all of the ward's real and personal property, and of rents, income, issues and benefits therefrom, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof. Subject to such possession the title of all such estate and to the increment and proceeds thereof shall be in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to account for it faithfully, to perform all other duties required of the guardian by law and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto.
880.19(2)(a)(a) The guardian of the estate may, without the approval of the court, retain any real or personal property possessed by the ward at the time of appointment of the guardian or subsequently acquired by the ward by gift or inheritance without regard to
ch. 881, so long as such retention constitutes the exercise of the judgment and care under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
