54.20(2)(k)
(k) In all cases in which the court determines that it is advantageous to continue the business of a ward, continue the business on any terms and conditions specified in the order of the court.
54.20(2)(L)
(L) Apply to the court for adjustment of any claims against the ward incurred before entry of the order appointing the guardian or the filing of a lis pendens as provided in
s. 54.47. The court shall by order fix the time and place it will adjust claims and the time within which all claims shall be presented. Notice of these times and the place shall be given by publication as provided in
s. 879.05 (4), and
ch. 859 generally shall apply. 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 over which the circuit court has jurisdiction.
54.20(3)
(3) Powers that do not require court approval. The guardian of the estate may do any of the following on behalf of the ward without first receiving the court's approval:
54.20(3)(a)
(a) Provide support from the ward's income and assets for an individual whom the ward is legally obligated to support.
54.20(3)(b)
(b) Enter into a contract, other than a contract under
sub. (2) or that is otherwise prohibited under this chapter.
54.20(3)(c)
(c) Exercise options of the ward to purchase securities or other property.
54.20(3)(d)
(d) Authorize access to or release of the ward's confidential financial records.
54.20(3)(f)
(f) Retain any real or personal property that the ward possesses when the guardian is appointed or that the ward acquires by gift or inheritance during the guardian's appointment.
54.20(3)(g)
(g) Subject to
ch. 786, sell, mortgage, pledge, lease, or exchange any asset of the ward at fair market value.
54.20(3)(h)
(h) Invest and reinvest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in accordance with
ch. 881.
54.20(3)(i)
(i) Notwithstanding
ch. 881, after such notice as the court directs, and subject to
ch. 786, invest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in the real or personal property that is determined by the court to be in the best interests of the estate of the ward.
54.20(3)(j)
(j) Settle all claims and accounts of the ward and appear for and represent the ward in all actions and proceedings except those for which another person is appointed.
54.20(3)(k)
(k) Take any other action, except an action specified under
sub. (2), that is reasonable or appropriate to the duties of the guardian of the estate.
54.20 History
History: 2005 a. 387 ss.
100,
380,
383,
390,
391,
393,
395,
396,
399,
415,
417.
54.20 Annotation
The standard for a trial court's exercise of discretion for a guardian of a married person 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).
54.20 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.
54.20 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),
98-3285.
54.20 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,
99-3012.
54.20 Note
NOTE: The above annotations relate to guardianships under ch. 880, stats., prior to the revision of and renumbering of that chapter to ch. 54 by
2005 Wis. Act 387.
54.21
54.21
Petition to transfer ward's assets to another. 54.21(1)(b)
(b) "Other individual" means any of the following:
54.21(1)(b)3.
3. The guardian ad litem of the ward's minor child, if any.
54.21(1)(b)5.
5. Any of the ward's siblings who has an ownership interest in property that is co-owned with the ward.
54.21(1)(c)
(c) "Will, trust, or other instrument" includes a revocable or irrevocable trust, a durable power of attorney, or a marital property agreement.
54.21(2)
(2) A guardian or other individual who seeks an order authorizing and directing the guardian of the estate to transfer any of a ward's income or assets to or for the benefit of any person shall submit to the court a petition that specifies all of the following:
54.21(2)(a)
(a) Whether a proceeding by anyone seeking this authority with respect to the ward's income and assets was previously commenced and, if so, a description of the nature of the proceeding and the disposition made of it.
54.21(2)(b)
(b) The amount and nature of the ward's financial obligations, including moneys currently and prospectively required to provide for the ward's maintenance, support, and well-being and to provide for others dependent upon the ward for support, regardless of whether the ward is legally obligated to provide the support. If the petitioner has access to a copy of a court order or written agreement that specifies support obligations of the ward, the petitioner shall attach the copy to the petition.
54.21(2)(c)
(c) The income and assets of the ward that is the subject of the petition, the proposed disposition of the property, and the reasons for the disposition.
54.21(2)(d)
(d) The wishes, if ascertainable, of the ward.
54.21(2)(e)
(e) As specified in
sub. (3), whether the ward has previously executed a will or similar instrument.
54.21(2)(f)
(f) A description of any significant gifts or patterns of gifts that the ward has made.
54.21(2)(g)
(g) The current and likely future effect of the proposed transfer of assets on the ward's eligibility for public benefits, including medical assistance or a benefit under
s. 46.27.
54.21(2)(h)
(h) Whether the guardian of the person and the guardian of the estate, if not the petitioner, agree with or object to the transfer.
54.21(2)(i)
(i) The names, post-office addresses, and relationships to the ward of all of the following:
54.21(2)(i)1.
1. Any presumptive adult heirs of the ward who can be ascertained with reasonable diligence.
54.21(2)(i)2.
2. If the ward has previously executed a will, trust, or other instrument, the named or described beneficiaries, if known, under the most recent will, trust, or other instrument executed by the ward.
54.21(3)(a)(a) If a ward has previously executed a will, trust, or other instrument for nontestamentary transfer and the petitioner is able, with reasonable diligence, to obtain a copy, the petitioner shall provide the copy to the court, together with a statement that specifies all of the following:
54.21(3)(a)2.
2. The manner in which the terms of the will, trust, or other instrument for nontestamentary transfer became known to the petitioner for nontestamentary transfer.
54.21(3)(a)3.
3. The basis for the petitioner's belief that the copy is of the ward's most recently executed will, trust, or other instrument.
54.21(3)(b)
(b) If the petitioner is unable to obtain a copy of the most recently executed will or other dispositive estate planning document or is unable to determine if the ward has previously executed a will or other dispositive estate planning document, the petitioner shall provide a statement to the court that specifies the efforts that were made by the petitioner to obtain a copy or ascertain the information.
54.21(3)(c)
(c) If a copy of the most recently executed will or other dispositive estate planning document is not otherwise available, the court may order the person who has the original will or other dispositive estate planning document to provide a photocopy to the court for in camera examination. The court may provide the photocopy to the parties to the proceeding unless the court finds that doing so is contrary to the ward's best interests.
54.21(3)(d)
(d) The petitioner and the court shall keep confidential the information in a will or other dispositive estate planning document, or a copy of the will or other dispositive estate planning document, under this subsection, and may not, unless otherwise authorized, disclose that information.
54.21(4)
(4) The petitioner shall serve notice upon all of the following, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named in the notice, for the order described in the petition:
54.21(4)(a)
(a) If not the same as the petitioner, the guardian of the person and the guardian of the estate.
54.21(4)(b)
(b) Unless the court dispenses with notice under this subsection, the persons specified in
sub. (2) (i), if known to the petitioner.
54.21(4)(c)
(c) The county corporation counsel, if the county has an interest in the matter.
54.21(5)
(5) The court shall consider all of the following in reviewing the petition:
54.21(5)(b)
(b) Whether the duration of the ward's impairment is likely to be sufficiently brief so as to justify dismissal of the proceedings in anticipation of the ward's recovered ability to decide whether, and to whom, to transfer his or her assets.
54.21(5)(c)
(c) Whether the proposed transfer will benefit the ward, the ward's income and assets, or members of the ward's immediate family.
54.21(5)(d)
(d) Whether the donees or beneficiaries under the proposed disposition are reasonably expected objects of the ward's generosity and whether the proposed disposition is consistent with any ascertained wishes of the ward or known estate plan or pattern of lifetime gifts that he or she has made.
54.21(5)(e)
(e) Whether the proposed disposition will produce tax savings that will significantly benefit the ward, his or her dependents, or other persons for whom the ward would be concerned.
54.21(5)(g)
(g) Any other factors that the court determines are relevant.
54.21(6)
(6) The court may grant the petition under
sub. (2) and enter an order authorizing and directing the guardian of the estate to take action requested in the petition, if the court finds and records all of the following:
54.21(6)(a)
(a) That the ward has incapacity to perform the act for which approval is sought and the incapacity is not likely to change positively within a reasonable period of time.
54.21(6)(b)
(b) That a competent individual in the position of the ward would likely perform the act under the same circumstances.
54.21(6)(c)
(c) That, before the ward had incapacity to perform the act for which approval is sought, he or she did not manifest intent that is inconsistent with the act.
54.21(7)
(7) Nothing in this section requires a guardian to file a petition under this section and a guardian is not liable or accountable to any person for having failed to file a petition under this section.
54.21 History
History: 2005 a. 387.
54.22
54.22
Petition for authority to sell, mortgage, pledge, lease, or exchange ward's property. Notwithstanding
s. 54.20 (3) (g),
(h), and
(i), a person interested in the estate of a ward may petition the court to require the guardian to sell, mortgage, pledge, lease, or exchange any asset of the estate of the ward. Following the petition and upon any notice and hearing that the court requires, the court may so order, subject to
ch. 786, 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 that is in the best interest of the ward.
54.22 History
History: 2005 a. 387 s.
400.
54.22 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) [now this section]. 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.
54.22 Note
NOTE: The above annotations relate to guardianships under ch. 880, stats., prior to the revision of and renumbering of that chapter to ch. 54 by
2005 Wis. Act 387.
54.25
54.25
Duties and powers of guardian of the person. 54.25(1)(1)
Duties. A guardian of the person shall do all of the following:
54.25(1)(a)
(a) 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 (2). That county department shall develop reporting requirements for the guardian of the person. The report shall include the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement as to whether or not the ward is living in the least restrictive environment consistent with the needs of the ward.
54.25(1)(b)
(b) Endeavor to secure any necessary care or services for the ward that are in the ward's best interests, based on all of the following:
54.25(1)(b)1.
1. Regular inspection, in person, of the ward's condition, surroundings, and treatment.
54.25(1)(b)2.
2. Examination of the ward's patient health care records and treatment records and authorization for redisclosure as appropriate.
54.25(1)(b)3.
3. Attendance and participation in staff meetings of any facility in which the ward resides or is a patient, if the meeting includes a discussion of the ward's treatment and care.
54.25(1)(b)4.
4. Inquiry into the risks and benefits of, and alternatives to, treatment for the ward, particularly if drastic or restrictive treatment is proposed.
54.25(1)(b)5.
5. Specific consultation with providers of health care and social services in making all necessary treatment decisions.
54.25(2)(a)(a)
Rights and powers of a guardian of the person. A guardian of the person has only those rights and powers that the guardian is specifically authorized to exercise by statute, rule, or court order. Any other right or power is retained by the ward, unless the ward has been declared incompetent to exercise the right under
par. (c) or the power has been transferred to the guardian under
par. (d).
54.25(2)(b)
(b)
Rights retained by individuals determined incompetent. An individual determined incompetent retains the power to exercise all of the following rights, without consent of the guardian:
54.25(2)(b)1.
1. To have access to and communicate privately with the court and with governmental representatives, including the right to have input into plans for support services, the right to initiate grievances, including under state and federal law regarding resident or patient rights, and the right to participate in administrative hearings and court proceedings.
54.25(2)(b)2.
2. To have access to, communicate privately with, and retain legal counsel. Fees are to be paid from the income and assets of the ward, subject to court approval.
54.25(2)(b)3.
3. To have access to and communicate privately with representatives of the protection and advocacy agency under
s. 51.62 and the board on aging and long-term care.
54.25(2)(b)4.
4. To protest a residential placement made under
s. 55.055, and to be discharged from a residential placement unless the individual is protectively placed under
ch. 55 or the requirements of
s. 55.135 (1) are met.
