880.33(8)(b)
(b) If the proposed incompetent has executed a power of attorney for health care under
ch. 155, find that the power of attorney for health care instrument should remain in effect. If the court so finds, the court shall so order and shall limit the power of the guardian to make those health care decisions for the ward that are not to be made by the health care agent under the terms of the power of attorney for health care instrument, unless the guardian is the health care agent under those terms.
880.33(9)
(9) All the rights and privileges afforded a proposed incompetent under this section shall be given to any person who is alleged to be ineligible to register to vote or to vote in an election by reason that such person is incapable of understanding the objective of the elective process. The determination of the court shall be limited to a finding that the elector is either eligible or ineligible to register to vote or to vote in an election by reason that the person is or is not capable of understanding the objective of the elective process. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under
s. 6.48,
6.92,
6.925 or
6.93 with the responsibility for determining challenges to registration and voting which may be directed against that elector. The determination may be reviewed as provided in
s. 880.34 (4) and
(5) and any subsequent determination of the court shall be likewise communicated by the clerk of court.
880.33 History
History: 1973 c. 284;
1975 c. 393,
421;
1977 c. 29,
187;
1977 c. 203 s.
106;
1977 c. 299,
318,
394,
418,
447;
1979 c. 110,
356;
1981 c. 379;
1987 a. 366; Sup. Ct. Order, 151 Wis. 2d xxii, xxxiv;
1989 a. 200; Sup. Ct. Order, 153 Wis. 2d xxim xxv (1989);
1991 a. 32,
39;
1993 a. 16,
316;
1995 a. 27 s.
9126 (19); Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997);
1997 a. 237.
Effective date note
Judicial Council Note, 1990: Sub. (3) is amended by striking reference to the right to testify in judicial or administrative proceedings. The statute conflicts with s. 906.01, as construed in State v. Hanson,
149 Wis. 2d 474 (1989) and State v. Dwyer,
149 Wis. 2d 850 (1989). [Re Order eff. 1-1-91]
880.33 Annotation
A "common sense" finding of incompetency was insufficient for placement under s. 55.06. If competent when sober, an alcoholic has the right to choose to continue an alcoholic lifestyle. Guardianship & Protective Placement of Shaw,
87 Wis. 2d 503,
275 N.W.2d 143 (Ct. App. 1979).
880.33 Annotation
The written report of a physician or psychologist under sub. (1) is hearsay and not admissible in a contested hearing without in-court testimony of the preparing expert. In Matter of Guardianship of R.S.
162 Wis. 2d 197,
470 N.W.2d 260 (1991).
880.33 Annotation
A guardian may not be given authority to forcibly administer psychotropic drugs to a ward. An order for the forcible administration of psychotropic drugs may only be made in a ch. 51 proceeding. State ex rel. Roberta S. v. Waukesha DHS,
171 Wis. 2d 266,
491 N.W.2d 114 (Ct. App. 1992).
880.33 Annotation
The expenses of a guardian ad litem in guardianship proceedings are correctly assessed to the ward under s. 757.48. Assessment of the costs of a medical expert are within the discretion of the court. Elgin and Carol W. v. DHFS,
221 Wis. 2d 36,
584 N.W.2d 195 (Ct. App. 1998).
880.33 Annotation
The statutory provisions for an interested person's formal participation in guardianship and protective placement hearings are specific and limited. No statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections. A court could consider such participation helpful and in its discretion allow an interested person to participate to the extent it considers appropriate. Coston v. Joseph P.
222 Wis. 2d 1,
586 N.W.2d 52 (Ct. APP. 1998).
880.33 Annotation
Section 907.03 does not allow the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. While in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions, procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B. 2003 WI App 223,
267 Wis. 2d 310,
671 N.W.2d 377,
03-0967.
880.33 Annotation
A proposed ward's rightful refusal to participate in a court-ordered evaluation will not obstruct a guardianship and protective placement proceeding. Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon. Walworth County v. Therese B. 2003 WI App 223,
267 Wis. 2d 310,
671 N.W.2d 377,
03-0967.
880.33 Annotation
Sub. (6) requires the closing only of documents filed with the register in probate with respect to ch. 880 proceedings. 67 Atty. Gen. 130.
880.33 Annotation
A guardian has general authority to consent to medication for a ward, but may consent to psychotropic medication only in accordance with ss. 880.07 (1m) and 880.33 (4m) and (4r). The guardian's authority to consent to medication or medical treatment of any kind is not affected by an order for protective placement or services.
OAG 5-99.
880.331
880.331
Guardian ad litem in incompetency cases. 880.331(1)(1)
Appointment. The court shall appoint a guardian ad litem whenever it is proposed that the court appoint a guardian on the ground of incompetency under
s. 880.33, protectively place a person or order protective services under
s. 55.06, review any protective placement or protective service order under
s. 55.06 or terminate a protective placement under
s. 55.06.
880.331(2)
(2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
880.331(3)
(3) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the proposed ward or alleged incompetent as to guardianship, protective placement and protective services. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the proposed ward or alleged incompetent or the positions of others as to the best interests of the proposed ward or alleged incompetent. The guardian ad litem has none of the rights or duties of a general guardian.
880.331(4)
(4) General duties. A guardian ad litem shall do all of the following:
880.331(4)(a)
(a) Interview the proposed ward or alleged incompetent and explain the applicable hearing procedure, the right to counsel and the right to request or continue a limited guardianship.
880.331(4)(b)
(b) Advise the proposed ward or alleged incompetent, both orally and in writing, of that person's rights to a jury trial, to an appeal, to counsel and to an independent medical or psychological examination on the issue of competency, at county expense if the person is indigent.
880.331(4)(c)
(c) Request that the court order additional medical, psychological or other evaluation, if necessary.
880.331(4)(d)
(d) If applicable, inform the court that the proposed ward or alleged incompetent objects to a finding of incompetency, the present or proposed placement or the recommendation of the guardian ad litem as to the proposed ward's or alleged incompetent's best interests or that the proposed ward's or alleged incompetent's position on these matters is ambiguous.
880.331(4)(e)
(e) Present evidence concerning the best interests of the proposed ward or alleged incompetent, if necessary.
880.331(4)(f)
(f) Report to the court on any other relevant matter that the court requests.
880.331(5)
(5) Duties in reviews. In any review of a protective placement under
s. 55.06 or of a protective service order under
s. 55.05, the guardian ad litem shall do all of the following:
880.331(5)(a)
(a) Interview the ward to explain the review procedure, the right to an independent evaluation, the right to counsel and the right to a hearing.
880.331(5)(b)
(b) Provide the information under
par. (a) to the ward in writing.
880.331(5)(c)
(c) Secure an additional evaluation of the ward, if necessary.
880.331(5)(d)
(d) Review the annual report and relevant reports on the ward's condition and placement.
880.331(5)(e)
(e) Review the ward's condition, placement and rights with the guardian.
880.331(5)(f)
(f) If relevant, report to the court that the ward objects to the finding of continuing incompetency, the present or proposed placement, the position of the guardian or the recommendation of the guardian ad litem as to the best interests of the ward or if there is ambiguity about the ward's position on these matters.
880.331(5)(g)
(g) If relevant, report to the court that the ward requests the appointment of counsel or an adversary hearing.
880.331(6)
(6) Communication to a jury. In jury trials under
ch. 55 or
880, the court or guardian ad litem may tell the jury that the guardian ad litem represents the interests of the proposed ward or alleged incompetent.
880.331(7)
(7) Termination and extension of appointment. The appointment of a guardian ad litem under
sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates, even if counsel has been appointed for the proposed ward or alleged incompetent. The court may extend that appointment, or reappoint a guardian ad litem whose appointment under this section has terminated, by an order specifying the scope of responsibilities of the guardian ad litem. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request that the court terminate any extension or reappointment. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal.
880.331(8)
(8) Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue, unless the court otherwise directs or unless the guardian ad litem is appointed for a minor, in which case the compensation of the guardian ad litem shall be paid by the minor's parents or the county of venue as provided in
s. 48.235 (8). If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under
s. 977.08 (4m) (b).
880.331 History
History: Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1993 a. 16;
1995 a. 27;
1997 a. 237.
880.331 Note
Judicial Council Note, 1990: This is a new section which more comprehensively identifies the situations in which a guardian ad litem should be appointed, the duration of such appointments and the guardian ad litem's duties. Sub. (1) requires such an appointment whenever it is proposed to appoint a guardian pursuant to s. 880.33, to protectively place a person, to provide protective services in lieu of placement under s. 55.06 (for instances in which a finding of incompetency is first required), to terminate a protective placement under s. 55.06 and upon the annual review required by State ex rel. Watts v. Combined Community Services Board of Milwaukee,
122 Wis. 2d 65 (1985).
880.331 Annotation
Sub. (2) identifies the qualifications for a guardian ad litem.
880.331 Annotation
Sub. (3) enumerates the general responsibilities of the guardian ad litem, consistent with the similar definition for other situations in which guardian ad litems are appointed.
880.331 Annotation
Sub. (4) continues the specific duties in guardianship, protective placement and protective services situations which were previously enumerated in s. 880.33 (2) (c), which is repealed. Sub. (4) refers to alleged incompetents. This is done recognizing that the term may sometimes apply to persons already adjudicated as incompetent.
880.331 Annotation
Sub. (5) is new and enumerates the duties of the guardian ad litem in reviews, consistent with the Watts decision.
880.331 Annotation
A particularly troublesome issue is addressed in subs. (4) (d) and (5) (f). The position of the committee is that the guardian ad litem is to notify the court if the proposed ward objects to the listed matters so that adversary counsel can be appointed. In practice, the proposed ward may not be clear about his or her view of these matters. In such situations, the guardian ad litem is required to notify the court so the court can decide whether there is an objection. If there is, adversary counsel is to be appointed.
880.331 Annotation
Sub. (6) addresses the subject of jury communication and is new, as is sub. (8) on fees. Fees for indigent proposed wards are to be paid by the county. In other situations the court may direct such payment to be made by any other appropriate person.
880.331 Annotation
Sub. (7) provides for the termination of the appointment upon the conclusion of the matter, unless the court extends the appointment or unless the guardian ad litem decides not to participate in an appeal. Even if adversary counsel is appointed, the guardian ad litem is to continue to represent the best interests as opposed to wishes of the ward. The subsection leaves to the court's discretion whether there are useful specific functions the guardian ad litem can perform after the final order which lead to reappointment or extension. Such an extension or reappointment may be until the annual review required by Watts, but the scope of the duties must be specified. The court may extend the guardian ad litem's responsibilities to include any review, but this does not occur unless the court expressly so orders. [Re Order effective Jan. 1, 1990]
880.331 Annotation
There must be an annual review of each protective placement by a judicial officer. The requirements of ss. 51.15 and 51.20 must be afforded to protectively placed individuals facing involuntary commitment under s. 55.06 (9) (d) and (e). State ex rel. Watts v. Combined Community Services,
122 Wis. 2d 65,
362 N.W.2d 104 (1985).
880.331 Annotation
A substantial relationship test applies for determining the need for attorney disqualification. Adversary counsel for the subject of an involuntary commitment may not be named guardian ad litem when the procedure is converted to a guardianship. Guardianship of Tamara L.P.
177 Wis. 2d 770,
503 N.W.2d 333 (Ct. App. 1993).
880.331 Annotation
The court's power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under
SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct.
192 Wis. 2d 1,
531 N.W.2d 32 (1995).
880.34
880.34
Duration of guardianship; review. 880.34(1)
(1) Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the incompetent, or until terminated by the court. Upon reaching the age of majority, an incompetent subject to guardianship under this chapter shall be reviewed by the court for the purpose of determining whether the guardianship should be continued or modified. The court shall make a specific finding of any rights under
s. 880.33 (3) which the individual is competent to exercise at the time.
880.34(2)
(2) The court shall review and may terminate the guardianship of the person of an incompetent upon marriage to any person who is not subject to a guardianship.
880.34(3)
(3) A ward of the age of 18 or over, any interested person on the ward's behalf, or the ward's guardian may petition the court which made such appointment or the court in the ward's county of residence to have the guardian discharged and a new guardian appointed, or to have the guardian of the ward's property designated as a limited guardian.
880.34(4)
(4) A ward who is 18 years of age or older, any interested person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency. Upon such a petition for review, the court shall conduct a hearing at which the ward shall be present and shall have the right to a jury trial, if demanded. The ward shall also have the right to counsel and the court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, counsel shall be provided at the expense of the ward's county of legal settlement.
880.34(5)
(5) After a hearing under
sub. (4) or on its own motion, a court may terminate or modify a guardianship of an incompetent.
880.34(6)(a)1.
1. Order the county department responsible for ensuring that the person receives appropriate protective services to review, at least once every 12 months from the date of the appointment, the status of the person and file a written evaluation with the court, the person and the person's guardian. Guardianship and protective services orders for psychotropic medication under
ch. 55 shall be reviewed annually. The evaluation shall include a description of facts and circumstances that indicate whether there is a substantial likelihood, based on the person's treatment record, that the person would meet the standard specified under
s. 880.07 (1m) (c) if protective services, including psychotropic medication, were withdrawn. The substantial likelihood need not be evidenced by episodes in the person's history that are specified in
s. 880.07 (1m) (cm). The evaluation shall also include recommendations for discharge or changes in the treatment plan or services, if appropriate.
880.34(6)(a)2.
2. Annually, appoint a guardian ad litem to meet with the person and to review the evaluations under
subd. 1. The guardian ad litem shall inform the person and the guardian of all of the following:
880.34(6)(a)2.b.
b. The right to an independent evaluation under
par. (d) of the person's need for a guardian for the purpose of consenting to or refusing psychotropic medication and the need for and appropriateness of the current treatment or services.
880.34(6)(a)2.c.
c. The right to a hearing under
par. (e) on the need for a guardian for the purpose of consenting to or refusing protective services, including psychotropic medication, and the need for and appropriateness of the current treatment or services.
880.34(6)(b)
(b) The court shall ensure that the person is represented by full legal counsel if requested by the person, the guardian or the guardian ad litem.
880.34(6)(c)
(c) The guardian ad litem shall file with the court a written report stating the guardian ad litem's conclusions with respect to all of the following:
880.34(6)(c)1.
1. Whether an independent evaluation should be conducted under
par. (d).
880.34(6)(c)2.
2. Whether the person continues to be a proper subject for guardianship under
s. 880.33 (4m) (a) and protective services, including psychotropic medication.
880.34(6)(c)3.
3. Whether a change in the treatment plan or protective services, including psychotropic medication, is warranted.
880.34(6)(c)4.
4. Whether the person or the guardian requests a change in status, treatment plan or protective services.
880.34(6)(c)5.
5. Whether a hearing should be held on the continued need for guardianship under
s. 880.33 (4m) (a) and protective services, including psychotropic medication.
880.34(6)(d)
(d) Following review of the evaluation under
par. (a) 1. and the guardian ad litem's report under
par. (c), the court shall order an independent evaluation of the person's need for continued guardianship under
s. 880.33 (4m) (a) and protective services or the appropriateness of the treatment plan or protective services, if requested by the person, the guardian or the guardian ad litem or if the court determines that an independent evaluation is necessary.
880.34(6)(e)
(e) The court shall order a hearing under this subsection upon request of the person, the guardian, the guardian ad litem or any interested person. The court may hold a hearing under this subsection on its own motion.
880.34(6)(f)
(f) The court shall do one of the following after holding a hearing under this subsection or, if no hearing is held, after reviewing the guardian ad litem's report and other information filed with the court:
880.34(6)(f)1.
1. Order continuation of the guardianship under
s. 880.33 (4m) (a) and protective services order, without modification. The standard for continuation of protective services, including psychotropic medication, is a substantial likelihood, based on the person's treatment record, that the person would meet the standard specified under
s. 880.07 (1m) (c) if protective services, including psychotropic medication, were withdrawn. The substantial likelihood need not be evidenced by episodes in the person's history that are specified in
s. 880.07 (1m) (cm).
880.35
880.35
Nonprofit corporation as guardian. A private nonprofit corporation organized under
ch. 181,
187 or
188 is qualified to act as guardian of the person or of the property or both, of an individual found to be in need of guardianship under
s. 880.33, if the department of health and family services, under rules established under
ch. 55, finds the corporation a suitable agency to perform such duties.
880.35 Cross-reference
Cross Reference: See also ch.
HFS 85, Wis. adm. code.
880.36
880.36
Standby guardianship. 880.36(1)
(1) A petition for the appointment of a standby guardian of the person or property or both of a minor or person found incompetent under
s. 880.08 to assume the duty and authority of guardianship on the death, incapacity or resignation of the initially appointed guardian may be brought under this chapter at any time. A petition for the appointment of a standby guardian of the person or property or both of a minor to assume the duty and authority of guardianship on the incapacity, death, or debilitation and consent, of the minor's parent shall be brought under
s. 48.978.
880.36(2)
(2) At any hearing conducted under this section the court may designate one or more standby guardians of the person or property whose appointment shall become effective immediately upon the death, incapacity, or resignation of the initially appointed guardian. The powers and duties of the standby guardian shall be the same as those of the initially appointed guardian. The standby guardian shall receive a copy of the court order establishing or modifying the initial guardianship, and the order designating the standby guardian. Upon assuming office, the standby guardian shall so notify the court.
880.37
880.37
Application for limited guardianship of property. 880.37(1)(1) An incompetent person who is 18 years of age or older, a guardian or any person authorized to petition for guardianship of a person may apply to a court for a limited guardianship of property. Consonant with the least restrictive limitation of rights, when the person demonstrates to the satisfaction of the court that the person is capable of managing in whole or in part the person's wages, earnings, income or assets, the court may appoint a limited guardian of such person's property, or in the event one person is appointed or serving as both guardian of the person and of the property of such person, a guardian of the person with limited powers as guardian of the property. Such limited guardianship shall be used until the person has established himself or herself as reasonably capable of managing personal affairs without supervision.
880.37(2)
(2) A limited guardian of the property shall receive, manage, disburse and account for all property, both real and personal, of the person not resulting from wages or earnings.
880.37(3)
(3) Unless otherwise specified by the court, the person of 18 years of age or over for whom a limited guardian of the property has been appointed shall have the right to:
880.37(3)(a)
(a) Receive and expend any and all wages or other earnings from the person's employment; and
880.37(3)(b)
(b) Contract and legally bind himself or herself for any sum of money not exceeding $300 or one month's wages or earnings, whichever is greater.
880.37(4)
(4) Notwithstanding
sub. (3), the court may place such other limitations upon the rights of a person subject to limited guardianship of property under this section as it determines are in the best interests of the person.
880.37(5)
(5) The appointment of a limited guardian of property shall have no bearing on any of the rights specified in
s. 880.33 (3) except upon specific finding of the court based upon clear and convincing evidence of the need for such limitations. In no event shall the appointment of a limited guardian constitute evidence of or a presumption as to the incompetence of the ward in any area not mentioned in the court order.
