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protective placement and protective services situations which were previously enumerated in s. 880.33 (2) (c), which is repealed.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.
880.38
880.38
Guardian of the person of incompetent. 880.38(1)
(1) A guardian of the person of an incompetent, upon order of the court, may have custody of the person, may receive all notices on behalf of the person and may act in all proceedings as an advocate of the person, but may not have the power to bind the ward or the ward's property, or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the property. A guardian of the person of an incompetent or a temporary guardian of the person of an incompetent may not make a permanent protective placement of the ward unless ordered by a court under
s. 55.06 but may admit a ward to certain residential facilities under
s. 55.05 (5) or make an emergency protective placement under
s. 55.06 (11). The guardian of the person has the power to apply for placement under
s. 55.06 and for commitment under
s. 51.20 or
51.45 (13).
880.38(2)
(2) A guardian of the person shall endeavor to secure necessary care, services or appropriate protective placement on behalf of the ward.
880.38(3)
(3) A guardian of the person of an incompetent appointed under
s. 880.33 shall make an annual report on the condition of the ward to the court that ordered the guardianship and to the county department designated under
s. 55.02. That county department shall develop reporting requirements for the guardian of the person. The report shall include, but not be limited to, the location of the ward, the health condition of the ward, any recommendations regarding the ward and a statement of whether or not the ward is living in the least restrictive environment consistent with the needs of the ward. The guardian may fulfill the requirement under this subsection by submitting the report required under
s. 55.06 (10).
880.38 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).
880.38 Annotation
The guardian of an incompetent in a persistent vegetative state may consent to the withdrawal or withholding of life-sustaining medical treatment without prior court approval if the guardian determines that the withdrawal or withholding is in the ward's best interests. In Matter of Guardianship of L.W.
167 Wis. 2d 53,
482 N.W.2d 60 (1992).
880.38 Annotation
The guardian of a person who became incompetent after voluntarily entering a nursing home with 16 or more beds may not consent to the person's continued residence in the home. Upon the appointment of a guardian, the court must hold a protective placement hearing. Guardianship of Agnes T.
189 Wis. 2d 520,
525 N.W.2d 268 (1995).
880.38 Annotation
The holding in Guardianship of L.W. does not extend to persons who are not in a persistent vegetative state. However, if the guardian of the person not in a persistent vegetative state demonstrates by a clear statement of the ward made while competent that withdrawal of medical treatment is desired, it is in the patient's best interest to honor those wishes. Spahn v. Eiseberg,
210 Wis. 2d 558,
563 N.W.2d 485 (1997).
880.38 Annotation
A circuit court must hold some form of hearing on the record, either a full due process hearing or a summary hearing, to continue a protective placement. The circuit court must also make findings based on the factors enumerated in s. 55.06 (2) in support of the need for continuation. County of Dunn v. Goldie H. 2001 WI 102,
245 Wis. 2d 538,
629 N.W.2d 189.
880.38 Annotation
Guardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
880.39
880.39
Guardianship of person; exemption from civil liability. Any guardian of the person is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.
880.39 History
History: 1987 a. 366.
UNIFORM VETERANS' GUARDIANSHIP ACT
880.60
880.60
United States uniform veterans' guardianship act. 880.60(1)(1)
Definitions. As used in this section:
880.60(1)(a)
(a) "Administrator" means the administrator of veterans' affairs of the United States or the administrator's successor.
880.60(1)(b)
(b) "Benefits" means all moneys paid or payable by the United States through the U.S. department of veterans affairs.
880.60(1)(c)
(c) "Estate" means income on hand and assets acquired partially or wholly with "income."
880.60(1)(d)
(d) "Guardian" means any fiduciary for the person or estate of a ward.
880.60(1)(e)
(e) "Income" means moneys received from the U.S. department of veterans affairs and revenue or profit from any property wholly or partially acquired therewith.
880.60(1)(f)
(f) "U.S. department of veterans affairs" means the U.S. department of veterans affairs, its predecessors or successors.
880.60(1)(g)
(g) "Ward" means a beneficiary of the U.S. department of veterans affairs.
880.60(2)
(2) Administrator as party in interest. 880.60(2)(a)(a) The administrator shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any present or former ward whose estate includes assets derived in whole or in part from benefits heretofore or hereafter paid by the U.S. department of veterans affairs.
880.60(2)(b)
(b) Not less than 15 days prior to a hearing in a suit or proceeding described in
par. (a), notice in writing of the time and place of the hearing shall be given by mail, unless notice is waived in writing, to the office of the U.S. department of veterans affairs having jurisdiction over the area in which the suit or proceeding is pending.
880.60(3)
(3) Application. Whenever, pursuant to any law of the United States or regulation of the U.S. department of veterans affairs, it is necessary, prior to payment of benefits, that a guardian be appointed, the appointment may be made in the manner hereinafter provided.
880.60(4)
(4) Limitation on number of wards. No person or corporate entity other than a county having a population of 100,000 or more or a bank or trust company shall be guardian of more than 5 wards at one time, unless all the wards are members of one family. A county shall act only for patients in its county hospital or mental hospital and for residents of its county home or infirmary, and shall serve without fee. Upon presentation of a petition by an attorney of the U.S. department of veterans affairs or other interested person, alleging that a guardian is acting in a fiduciary capacity for more than 5 wards and requesting the guardian's discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting from the guardian and shall discharge the guardian from guardianship in excess of 5 and appoint a successor.
880.60(5)(a)(a) A petition for the appointment of a guardian may be filed by any relative or friend of the ward or by any person who is authorized by law to file such a petition. If there is no person so authorized or if the person so authorized refuses or fails to file such a petition within 30 days after mailing of notice by the U.S. department of veterans affairs to the last-known address of the person, if any, indicating the necessity for the same, a petition for appointment may be filed by any resident of the state.
880.60(5)(b)
(b) The petition for appointment shall set forth the name, age, place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that the ward is entitled to receive benefits payable by or through the veterans' administration and shall set forth the amount of moneys then due and the amount of probable future payments.
880.60(5)(c)
(c) The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward and the name, age, relationship, if any, occupation and address of the proposed guardian and if the nominee is a natural person, the number of wards for whom the nominee is presently acting as guardian. Notwithstanding any law as to priority of persons entitled to appointment, or the nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian, if the court determines it is for the best interest of the ward.
880.60(5)(d)
(d) In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent by the U.S. department of veterans affairs on examination in accordance with the laws and regulations governing the U.S. department of veterans affairs.
