54.72 History
History: 2005 a. 387.
54.72 Annotation
When a temporary guardian committed a clear breach of trust, the trial court had sufficient basis to award the temporary guardian no compensation. Yamat v. Verma L.B.
214 Wis. 2d 207,
571 N.W.2d 860 (Ct. App. 1997),
96-2313.
54.72 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.
54.74
54.74
Compensation of guardian ad litem. Unless the court otherwise directs or unless a petition to the court under this chapter is dismissed, the court shall order reasonable compensation to be paid to a guardian ad litem appointed under
s. 54.40 (1) from the ward's income or assets, if sufficient, or, if insufficient, by the county of venue. If a petition to the court under this chapter is dismissed, the court shall order the petitioner to pay the compensation of the guardian ad litem. 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 a private attorney under
s. 977.08 (4m) (b). The guardian ad litem shall receive compensation for performing all duties required under
s. 54.40 (4) and for any other acts that are approved by the court and are reasonably necessary to promote the ward's best interests.
54.74 History
History: 2005 a. 387 s.
498.
54.74 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).
54.74 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.
54.75
54.75
Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in
s. 51.30 or
55.22 or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.
54.75 Annotation
Sub. (6) [now this section] requires the closing only of documents filed with the register in probate with respect to ch. 880 [now ch. 54] proceedings. 67 Atty. Gen. 130.
54.75 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.
VOLUNTARY PROCEEDINGS;
CONSERVATORS
54.76
54.76
Conservator; appointment; duties and powers; termination. 54.76(1)(1) Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her assets or income may voluntarily apply to the circuit court of the county of his or her residence for appointment of a conservator of the estate. Upon receipt of the application, the court shall fix a time and place for hearing the application and may direct to whom, including presumptive heirs, and in what manner notice of the hearing shall be given to a potential recipient of the notice, unless the potential recipient has waived receipt. The fee prescribed in
s. 814.66 (1) (b) shall be paid at the time of the filing of the inventory or other documents setting forth the value of the assets and income.
54.76(2)
(2) At the hearing for appointment of a conservator, the applicant shall be personally examined by the court and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated and any proposed standby conservator are suitable, the court may appoint the nominee as conservator and, if applicable, designate the proposed standby conservator as standby conservator and issue letters of conservatorship to the nominee after he or she files a bond in the amount fixed by the court.
54.76(3)
(3) Except as provided in
sub. (3g), a conservator has all the powers and duties of a guardian of the estate. An individual whose income and assets are under conservatorship may make gifts of his or her income and assets, subject to approval of the conservator.
54.76(3g)
(3g) If the individual has executed a durable power of attorney before the proceedings under this section, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the individual's conservator may not make decisions for the individual that may be made by the agent, unless the conservator is the agent.
54.76(3m)
(3m) A person may at any time bring a petition for the appointment of a standby conservator for an individual for whom a conservator has been appointed under
sub. (2).
54.76(3n)
(3n) At any hearing conducted under this section the court may designate one or more standby conservators for an individual for whom a conservator has been appointed under
sub. (2) whose appointment shall become effective immediately upon the death, unwillingness, unavailability, or inability to act, resignation, or court's removal of the initially appointed conservator or during a period, as determined by the initially appointed conservator or the court, when the initially appointed conservator is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby conservator shall be the same as those of the initially appointed conservator. The standby conservator shall receive a copy of the court order establishing or modifying the initial conservatorship and the order designating the standby conservator. Upon assuming office, the standby conservator shall so notify the court. Upon notification, the court shall designate this conservator as permanent or shall specify the time period for a limited standby conservatorship.
54.76(4)
(4) Any person, including an individual whose income and assets are under conservatorship, may apply to the court at any time for termination of the conservatorship. Upon receipt of the application, the court shall fix a time and place for hearing and may direct that 10 days' notice by mail be given to the individual's guardian of the person or agent under a power of attorney for health care, the conservator, any standby conservator, and the presumptive adult heirs of the individual whose income and assets are under conservatorship. A potential recipient of the notice may waive its receipt. At the hearing, the court shall, unless it is clearly shown that the individual whose income and assets are under conservatorship is incompetent, remove the conservator and order the income and assets restored to the individual. If, however, the court determines at the hearing that the individual whose income and assets are administered by a conservator is incapable of handling his or her income and assets, the court shall order the conservatorship continued, or, if the applicant so desires and a nominee is suitable, appoint a successor conservator. A conservatorship may only be terminated under a hearing under this subsection.
54.76(5)
(5) Appointment of a conservator does not constitute evidence of the competency or incompetency of the individual whose income and assets are being administered.
54.76(6)
(6) The court that appointed the conservator shall have continuing jurisdiction over the conservator. Any of the following, if committed by a conservator with respect to a conservatee or the conservatee's income or assets, constitutes cause for removal of the conservator under
sub. (7) (a) 5:
54.76(6)(a)
(a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.
54.76(6)(b)
(b) Committing fraud, waste, or mismanagement.
54.76(6)(c)
(c) Abusing or neglecting the conservatee or knowingly permitting others to do so.
54.76(6)(e)
(e) Failing to provide adequately for the personal needs of the conservatee from the available income and assets and any available public benefits.
54.76(6)(f)
(f) Failing to act in the best interests of the conservatee.
54.76(6)(g)
(g) Failing to disclose conviction for a crime that would have prevented appointment of the person as conservator.
54.76(7)(a)(a) The powers of a conservator may not be terminated without a hearing and may not be terminated unless any of the following occurs:
54.76(7)(a)1.
1. The court removes the conservator on the court's own motion or under
sub. (4).
54.76(7)(a)2.
2. The court appoints a guardian for the individual whose income and assets are conserved.
54.76(7)(a)3.
3. The individual whose income and assets are conserved dies.
54.76(7)(a)4.
4. The conservator or individual whose income and assets are conserved changes residence to another state.
54.76(7)(a)5.
5. The court finds cause, as specified in
sub. (6), for removal of the conservator.
54.76(7)(b)
(b) If anyone objects to termination of the conservatorship and alleges that the individual whose income and assets are conserved is appropriate for appointment of a guardian, the court may stay the hearing under
par. (a) for 14 days to permit any interested person to file a petition for guardianship. If no petition is filed, the court may terminate the conservatorship and may appoint a guardian ad litem for the individual.
54.76(8)
(8) If a court terminates a conservatorship or a conservator resigns, is removed, or dies, the conservator or the conservator's personal representative or special administrator shall promptly render a final account of the former conservatee's income and assets to the court and to the former conservatee, any guardian of the former conservatee, or any deceased conservatee's personal representative or special administrator, as appropriate. If the conservator dies and the conservator and the deceased conservatee's personal representative or special administrator are the same person, the deceased conservatee's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the conservatee's estate.
54.76(9)(a)(a) If a conservator resigns, is removed, or dies, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor conservator. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor conservator be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a conservator.
54.76(9)(b)
(b) If the appointment under
par. (a) is made without hearing, the successor conservator shall provide notice to the individual for whom a conservator has been appointed and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor conservator. The notice shall be served personally or by mail not later than 10 days after the appointment.
54.76 History
History: 2005 a. 387 ss.
100,
452 to
456; Stats. 2005 s. 54.76.
54.76 Annotation
A gift by a competent conservatee without the approval of the conservator was void. Zobel v. Fenendael,
127 Wis. 2d 382,
379 N.W.2d 887 (Ct. App. 1985).
54.76 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) [now s. 55.08 (1)] 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,
00-1137.
54.76 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.
UNIFORM GUARDIANSHIP ACTS
54.850
54.850
Definitions. In this subchapter:
54.850(1)
(1) "Administration" means any proceeding relating to a decedent's estate whether testate or intestate.
54.850(2)
(2) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.
54.850(3)
(3) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under the decedent's will or under the statutes of intestate succession.
54.850 History
History: 2005 a. 387.
54.852
54.852
United States uniform veterans guardianship act. 54.852(1)(1)
Definitions. As used in this section:
54.852(1)(a)
(a) "Administrator" means the secretary of the U.S. department of veterans affairs or his or her successor.
54.852(1)(b)
(b) "Benefits" means all moneys paid or payable by the United States through the U.S. department of veterans affairs.
54.852(1)(c)
(c) "Estate" means income on hand and assets acquired partially or wholly with "income."
54.852(1)(d)
(d) Notwithstanding
s. 54.01 (10), "guardian" means any fiduciary for the person or estate of a ward.
54.852(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.
54.852(1)(f)
(f) "U.S. department of veterans affairs" means the U.S. department of veterans affairs, its predecessors or successors.
54.852(1)(g)
(g) Notwithstanding
s. 54.01 (37), "ward" means an individual who receives benefits from the U.S. department of veterans affairs.
54.852(2)
(2) Administrator as party in interest. 54.852(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.
54.852(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.
54.852(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.
54.852(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.
54.852(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.
54.852(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 U.S. department of veterans affairs and shall set forth the amount of moneys then due and the amount of probable future payments.
54.852(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.
54.852(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.
54.852(6)
(6) Evidence of necessity for guardian of infant. Where a petition is filed for the appointment of a guardian for a minor, a certificate of the administrator or the administrator's authorized representative, setting forth the age of such minor as shown by the records of the U.S. department of veterans affairs and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the U.S. department of veterans affairs shall be prima facie evidence of the necessity for such appointment.
54.852(7)
(7) Evidence of necessity for guardian for incompetent. Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the administrator or the administrator's duly authorized representative, that such person has been rated incompetent by the U.S. department of veterans affairs on examination in accordance with the laws and regulations governing such U.S. department of veterans affairs and that the appointment of a guardian is a condition precedent to the payment of any moneys due such ward by the U.S. department of veterans affairs, shall be prima facie evidence of the necessity for such appointment.
54.852(8)
(8) Notice. Upon the filing of a petition for the appointment of a guardian under this section, notice shall be given to the ward, to such other persons, and in such manner as is provided by statute, and also to the U.S. department of veterans affairs as provided by this section.
54.852(9)(a)(a) Upon the appointment of a guardian, the guardian shall execute and file a bond to be approved by the court in an amount not less than the estimated value of the personal estate and anticipated income of the ward during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship law. The court may from time to time require the guardian to file an additional bond.
54.852(9)(b)
(b) Where a bond is tendered by a guardian with personal sureties, there shall be at least 2 such sureties and they shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and shall state that each is worth the sum named in the bond as the penalty thereof over and above all the surety's debts and liabilities and the aggregate of other bonds on which the surety is principal or surety and exclusive of property exempt from execution. The court may require additional security or may require a corporate surety bond, the premium thereon to be paid from the ward's estate.
54.852(10)
(10) Petitions and accounts, notices and hearings. 54.852(10)(a)(a) Every guardian shall file his or her accounts as required by this chapter and shall be excused from filing accounts in the case as provided by
s. 54.66 (2).
54.852(10)(b)
(b) The guardian, at the time of filing any account, shall exhibit all securities or investments held by the guardian to an officer of the bank or other depository wherein said securities or investments are held for safekeeping or to an authorized representative of the corporation which is surety on the guardian's bond, or to the judge or clerk of a court of record, or, upon request of the guardian or other interested party, to any other reputable person designated by the court, who shall certify in writing that he or she has examined the securities or investments and identified them with those described in the account, and shall note any omissions or discrepancies. If the depository is the guardian, the certifying officer shall not be the officer verifying the account. The guardian may exhibit the securities or investments to the judge of the court, who shall endorse on the account and copy thereof a certificate that the securities or investments shown therein as held by the guardian were each in fact exhibited to the judge and that those exhibited to the judge were the same as those shown in the account, and noting any omission or discrepancy. That certificate and the certificate of an official of the bank in which are deposited any funds for which the guardian is accountable, showing the amount on deposit, shall be prepared and signed in duplicate and one of each be filed by the guardian with the guardian's account.
54.852(10)(c)
(c) At the time of filing in the court any account, a certified copy thereof shall be sent by the guardian to the office of the U.S. department of veterans affairs having jurisdiction over the area in which the court is located. A signed duplicate or a certified copy of any petition, motion or other pleading pertaining to an account, or to any matter other than an account, and which is filed in the guardianship proceedings or in any proceeding for the purpose of removing the disability of minority or mental incapacity, shall be furnished by the person filing the same to the proper office of the U.S. department of veterans affairs. Unless waived in writing, written notice of the time and place of any hearing shall be given to the office of U.S. department of veterans affairs concerned and to the guardian and any others entitled to notice not less than 15 days prior to the date fixed for the hearing. The notice may be given by mail in which event it shall be deposited in the mails not less than 15 days prior to said date. The court, or clerk thereof, shall mail to said office of the U.S. department of veterans affairs a copy of each order entered in any guardianship proceeding wherein the administrator is an interested party.
54.852(10)(d)
(d) If the guardian is accountable for property derived from sources other than the U.S. department of veterans affairs, the guardian shall be accountable as required under the applicable law of this state pertaining to the property of minors or persons of unsound mind who are not beneficiaries of the U.S. department of veterans affairs, and as to such other property shall be entitled to the compensation provided by such law. The account for other property may be combined with the account filed in accordance with this section.
54.852(11)
(11) Penalty for failure to account. If any guardian shall fail to file with the court any account as required by this section, or by an order of the court, when any account is due or within 30 days after citation issues as provided by law, or shall fail to furnish the U.S. department of veterans affairs a true copy of any account, petition or pleading as required by this section, such failure may in the discretion of the court be ground for removal.
54.852(12)
(12) Compensation of guardians. Guardians shall be compensated as provided in
s. 54.72.
54.852(13)
(13) Investments. Every guardian shall invest the surplus funds of the ward's estate in such securities or property as authorized under the laws of this state but only upon prior order of the court; except that the funds may be invested, without prior court authorization, in direct unconditional interest-bearing obligations of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States. A signed duplicate or certified copy of the petition for authority to invest shall be furnished the proper office of the U.S. department of veterans affairs, and notice of hearing thereon shall be given said office as provided in the case of hearing on a guardian's account.
54.852(14)
(14) Maintenance and support. A guardian shall not apply any portion of the income or the estate for the support or maintenance of any person other than the ward, the spouse and the minor children of the ward, except upon petition to and prior order of the court after a hearing. A signed duplicate or certified copy of said petition shall be furnished the proper office of the U.S. department of veterans affairs and notice of hearing thereon shall be given said office as provided in the case of hearing on a guardian's account or other pleading.
