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.
880.19(2)(b)
(b) The guardian of the estate may, with the approval of the court, after such notice as the court directs, retain any real or personal property possessed by the ward at the time of the appointment of the guardian or subsequently acquired by the ward by gift or inheritance for such period of time as shall be designated in the order of the court approving such retention, without regard to
ch. 881.
880.19(3)
(3) Continuation of business. In all cases where the court deems it advantageous to continue the business of a ward, such business may be continued by the guardian of the estate on such terms and conditions as may be specified in the order of the court.
880.19(4)(a)(a) The guardian of the estate may, without approval of the court, invest and reinvest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in accordance with
ch. 881.
880.19(4)(b)
(b) The guardian of the estate may, with the approval of the court, after such notice as the court directs, invest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in such real or personal property as the court determines to be in the best interests of the guardianship estate, without regard to
ch. 881.
880.19(4)(c)
(c) No guardian shall lend guardianship funds to himself or herself.
880.19(5)(a)(a) The guardian of the estate may, without approval of the court, sell any property of the guardianship estate acquired by the guardian pursuant to
sub. (4).
880.19(5)(b)
(b) The court, on the application of the guardian of the estate or of any other person interested in the estate of any ward, after such notice if any, as the court directs, may authorize or require the guardian to sell, mortgage, pledge, lease or exchange any property of the guardianship estate upon such terms as the court may order, for the purpose of paying the ward's debts, providing for the ward's care, maintenance and education and the care, maintenance and education of the ward's dependents, investing the proceeds or for any other purpose which is in the best interest of the ward.
880.19(5)(c)
(c) No guardian shall purchase property of the ward, unless sold at public sale with the approval of the court, and then only if the guardian is a spouse, parent, child, brother or sister of the ward or is a cotenant with the ward in the property.
880.19(5)(d)
(d) The provisions of this subsection insofar as they apply to real estate shall be subject to
ch. 786.
880.19(6)
(6) Trust companies, exemption from investment restraints. The limitations of this section relating to retention, sale, investment or reinvestment of any asset shall not be applicable to any bank or trust company authorized to exercise trust powers.
880.19 History
History: 1971 c. 41 ss.
8,
12; Stats. 1971 s. 880.19;
1973 c. 85;
1975 c. 94 s.
91 (9);
1979 c. 32 s.
92 (14);
1993 a. 486.
880.19 Annotation
A guardian is not authorized to make gifts from the guardianship estate to effectuate an estate plan that would avoid future death taxes. Michael S.B. v. Berns,
196 Wis. 2d 920,
540 N.W.2d 11 (Ct. App. 1995),
95-0580.
880.19 Annotation
An interested party without a direct financial stake in the action had standing to appeal an order order permitting the termination of the ward's life lease in real estate. Carla S. v. Frank B. 2001 WI App 97,
242 Wis. 2d 605,
626 N.W.2d 330.
880.19 Annotation
Transfer of a disabled ward's property to a newly-established "Medicaid Payback Trust" was in his best interest and authorized by ss. 49.454 (4) and 880.19 (5) (b). Marjorie A. G. v. Dodge County Department of Human Services, 2003 WI App 52,
261 Wis. 2d 679,
659 N.W.2d 438,
02-1121.
880.191
880.191
Inventories, accounts. 880.191(1)
(1)
Verification, examination in court. Every guardian shall verify by the guardian's oath every inventory required of the guardian and verification shall be to the effect that the inventory is true of all property which belongs to his or her decedent's estate or his or her ward, which has come to the guardian's possession or knowledge, and that upon diligent inquiry the guardian has not been able to discover any property belonging to the estate or ward which is not included therein. The court, at the request of any party interested, or on its own motion, may examine the guardian on oath in relation thereto, or in relation to any supposed omission.
880.191(2)
(2) Citation to file inventory and to account. If any guardian neglects to file the inventory or account when required by law, the circuit judge shall call the guardian's attention to the neglect. If the guardian still neglects his or her duty in the premises, the court shall order the guardian to file the inventory and the costs may be adjudged against the guardian.
880.191 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.191;
1977 c. 449;
1993 a. 486.
880.192
880.192
Fraud, waste, mismanagement. If the circuit court has reason to believe that any guardian within its jurisdiction has filed a false inventory, claims property or permits others to claim and retain property belonging to the estate which he or she represents, is guilty of waste or mismanagement of the estate or is unfit for the proper performance of duties, the court shall appoint a guardian ad litem for any minor or incompetent person interested and shall order the guardian to file the account. If upon the examination of the account the court deems it necessary to proceed further, a time and place for the adjustment and settlement of the account shall be fixed by the court, and at least 10 days' notice shall be given to the guardian ad litem and to all persons interested. If, upon the adjustment of the account, the court is of the opinion that the interests of the estate and of the persons interested require it, the guardian may be removed and another appointed.
880.192 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.192;
1977 c. 449.
880.195
880.195
Transfer of Menominees guardianship funds to trust. The circuit court which has appointed a guardian of the estate of any minor or incompetent who is a member of the Menominee Indian tribe as defined in
s. 49.385 or a lawful distributee thereof may direct the guardian to transfer the assets of the minor or incompetent in the guardian's possession to the trustees of the trust created by the secretary of interior or his or her delegate which receives property of the minors or incompetents transferred from the United States or any agency thereof as provided by
P.L. 83-399, as amended, and the assets shall thereafter be held, administered and distributed in accordance with the terms and conditions of the trust.
880.195 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.195;
1977 c. 449;
1995 a. 27.
880.21
880.21
Use of estate for benefit of wards. 880.21(1)
(1)
Application of personal property and income. Every guardian shall apply the personal property or the income therefrom or from the real estate, as far as may be necessary for the suitable education, maintenance and support of the ward and of the ward's family, if there be any legally dependent upon the ward for support, and for the care and protection of the ward's real estate. The parents, brothers and sisters of incompetent veterans of all wars are declared members of the incompetent veteran's family, and all payments heretofore made pursuant to court order to any dependent member of the family of any such incompetent, as herein defined, are ratified and approved.
880.21(2)
(2) For supplementing parent's support of minor. If any minor has property which is sufficient for his or her maintenance and education in a manner more expensive than his or her parents can reasonably afford, regard being had to the situation and circumstances of the family, the expenses of the minor's education and maintenance may be defrayed out of his or her property in whole or in part, as shall be judged reasonable and be directed by the circuit court.
880.21 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.21;
1977 c. 449;
1993 a. 486.
880.215
880.215
Lis pendens, void contracts. A certified copy of the petition and order for hearing provided for in
ss. 880.07 and
880.08 may be filed in the office of the register of deeds for the county; and if a guardian shall be appointed upon such application all contracts, except for necessaries at reasonable prices, and all gifts, sales and transfers of property made by such insane or incompetent person or spendthrift, after the filing of a certified copy of such petition and order as aforesaid, shall be void. The validity of a contract made by a person under limited guardianship is not void, however, unless the determination is made by the court in its finding under
s. 880.33 (3) that the ward is incapable of exercising the power to make contracts.
880.215 History
History: 1971 c. 41 ss.
8,
12; Stats. 1971 s. 880.215;
1973 c. 284;
1997 a. 304.
880.22(1)(1)
Payment. Every general guardian shall pay the just debts of the ward out of the ward's personal estate and the income of the ward's real estate, if sufficient, and if not, then out of the ward's real estate upon selling the same as provided by law. But a temporary guardian shall pay the debts of his or her ward only on order of the court.
880.22(2)
(2) Proceedings to adjust claims. The guardian or a creditor of any ward may apply to the court for adjustment of claims against the ward incurred prior to entry of the order appointing the guardian or the filing of a lis pendens as provided in
s. 880.215. The court shall by order fix the time and place it will adjust claims and the time within which all claims must be presented or be barred. Notice of the time and place so fixed and limited shall be given by publication as in estates of decedents; and all statutes relating to claims against and in favor of estates of decedents shall apply. As in the settlement of estates of deceased persons, after the court has made the order no action or proceeding may be commenced or maintained in any court against the ward upon any claim of which the circuit court has jurisdiction.
880.22 History
History: 1971 c. 41 ss.
8,
12; Stats. 1971 s. 880.22;
1977 c. 449;
1993 a. 486.
880.22 Annotation
This section does not authorize payment of attorney fees from the guardianship estate that were incurred by those commencing and prosecuting the guardianship action. Community Care of Milwaukee County v. Evelyn O.
214 Wis. 2d 433,
571 N.W.2d 700 (Ct. App. 1997).
880.23
880.23
Actions. The guardian shall settle all accounts of the ward and may demand, sue for, collect and receive all debts and claims for damages due him or her, or may, with the approval of the circuit court, compound and discharge the same, and shall appear for and represent his or her ward in all actions and proceedings except where another person is appointed for that purpose.
880.23 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.23;
1977 c. 449.
880.23 Annotation
A guardian may not sue for the loss of society and companionship of a ward, nor bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc.
229 Wis. 2d 271,
600 N.W.2d 21 (Ct. App. 1999).
880.24
880.24
Compensation allowed from estate. 880.24(1)
(1)
Fees and expenses of guardian. Every guardian shall be allowed the amount of the guardian's reasonable expenses incurred in the execution of the guardian's trust including necessary compensation paid to attorneys, accountants, brokers and other agents and servants. The guardian shall also have such compensation for the guardian's services as the court, in which the guardian's accounts are settled, deems to be just and reasonable.
880.24(2)
(2) Ward's expenses in proceedings. When a guardian is appointed the court may allow reasonable expenses incurred by the ward in contesting the appointment.
880.24(3)(a)(a) Except as provided in
par. (b), when a guardian is appointed, the court shall award from the ward's estate payment of the petitioner's reasonable attorney fees and costs, including those fees and costs, if any, related to protective placement of the ward, unless the court finds, after considering all of the following, that it would be inequitable to do so:
