54.10(3)(a)(a) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual based on a finding that the individual is incompetent only if the court finds by clear and convincing evidence that all of the following are true:
54.10(3)(a)1.
1. The individual is aged at least 17 years and 9 months.
54.10(3)(a)2.
2. For purposes of appointment of a guardian of the person, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.
54.10(3)(a)3.
3. For purposes of appointment of a guardian of the estate, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that any of the following applies:
54.10(3)(a)3.a.
a. The individual has property that will be dissipated in whole or in part.
54.10(3)(a)3.b.
b. The individual is unable to provide for his or her support.
54.10(3)(a)3.c.
c. The individual is unable to prevent financial exploitation.
54.10(3)(a)4.
4. The individual's need for assistance in decision making or communication is unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, or other means that the individual will accept.
54.10(3)(b)
(b) Unless the proposed ward is unable to communicate decisions effectively in any way, the determination under
par. (a) may not be based on mere old age, eccentricity, poor judgment, or physical disability.
54.10(3)(c)
(c) In appointing a guardian under this subsection, declaring incompetence to exercise a right under
s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under
s. 54.18,
54.20, or
54.25 (2) (d), the court shall consider all of the following:
54.10(3)(c)2.
2. The medical or psychological report provided under
s. 54.36 (1) and any additional medical, psychological, or other evaluation ordered by the court under
s. 54.40 (4) (e) or offered by a party and received by the court.
54.10(3)(c)3.
3. Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship, including by executing a durable power of attorney under
ch. 244, a power of attorney for health care, as defined in
s. 155.01 (10), a trust, or a jointly held account.
54.10(3)(c)4.
4. Whether other reliable resources are available to provide for the individual's personal needs or property management, and whether appointment of a guardian is the least restrictive means to provide for the individual's need for a substitute decision maker.
54.10(3)(c)5.
5. The preferences, desires, and values of the individual with regard to personal needs or property management.
54.10(3)(c)6.
6. The nature and extent of the individual's care and treatment needs and property and financial affairs.
54.10(3)(c)7.
7. Whether the individual's situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
54.10(3)(c)8.
8. Whether the individual can adequately understand and appreciate the nature and consequences of his or her impairment.
54.10(3)(c)9.
9. The individual's management of the activities of daily living.
54.10(3)(c)10.
10. The individual's understanding and appreciation of the nature and consequences of any inability he or she may have with regard to personal needs or property management.
54.10(3)(c)11.
11. The extent of the demands placed on the individual by his or her personal needs and by the nature and extent of his or her property and financial affairs.
54.10(3)(c)12.
12. Any physical illness of the individual and the prognosis of the individual.
54.10(3)(c)13.
13. Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.
54.10(3)(c)14.
14. Any medication with which the individual is being treated and the medication's effect on the individual's behavior, cognition, and judgment.
54.10(3)(c)15.
15. Whether the effect on the individual's evaluative capacity is likely to be temporary or long term, and whether the effect may be ameliorated by appropriate treatment.
54.10(3)(d)
(d) Before appointing a guardian under this subsection, declaring incompetence to exercise a right under
s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under
s. 54.18,
54.20, or
54.25 (2) (d), the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual's competency to exercise legal rights and may obtain assistance in the manner provided in
s. 55.11 (1) whether or not protective placement is made.
54.10(3)(e)
(e) In appointing a guardian under this subsection, the court shall authorize the guardian to exercise only those powers under
ss. 54.18,
54.20, and
54.25 (2) (d) that are necessary to provide for the individual's personal needs and property management and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention.
54.10(3)(f)1.1. If the court appoints a guardian of the person under this subsection, the court shall determine if, under
18 USC 922 (g) (4), the individual is prohibited from possessing a firearm. If the individual is prohibited, the court shall order the individual not to possess a firearm, order the seizure of any firearm owned by the individual, and inform the individual of the requirements and penalties under
s. 941.29.
54.10(3)(f)2.a.a. If a court orders under
subd. 1. an individual not to possess a firearm, the individual may petition that court or the court in the county where the individual resides to cancel the order.
54.10(3)(f)2.b.
b. The court considering the petition under
subd. 2. a. shall grant the petition if the court determines that the circumstances regarding the appointment of a guardian under this subsection and the individual's record and reputation indicate that the individual is not likely to act in a manner dangerous to public safety and that the granting of the petition would not be contrary to public interest.
54.10(3)(f)2.c.
c. If the court grants the petition under
subd. 2. b., the court shall cancel the order under
subd. 1. and order the return of any firearm ordered seized under
subd. 1.
54.10(3)(f)3.
3. In lieu of ordering the seizure under
subd. 1., the court may designate a person to store the firearm until the order under
subd. 1. is canceled under
subd. 2. c.
54.10(3)(f)4.
4. If the court orders under
subd. 1. an individual not to possess a firearm or cancels under
subd. 2. c. an order issued under
subd. 1., the court clerk shall notify the department of justice of the order or cancellation and provide any information identifying the individual that is necessary to permit an accurate firearms restrictions record search under
s. 175.35 (2g) (c). No other information from the individual's court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose information provided under this subdivision only as part of a firearms restrictions record search under
s. 175.35 (2g) (c) or under rules the department of justice promulgates under
s. 175.35 (2g) (d).
54.10(4)
(4) If the court appoints both a guardian of the person and a guardian of the estate for an individual other than an individual found to be a spendthrift, the court may appoint separate persons to be guardian of the person and of the estate, or may appoint one person to act as both.
54.10(5)
(5) The court may appoint coguardians of the person or coguardians of the estate, subject to any conditions that the court imposes.
54.10 Annotation
Under former s. 880.03, in evaluating a petition for a permanent guardianship on behalf of a minor filed by a non-parent when a parent objects, a court must first determine whether the party bringing the guardianship petition has shown that the child is in need of a guardian because there exist extraordinary circumstances requiring medical aid or the prevention of harm. Absent a showing of such extraordinary circumstances or need for a guardian, the court cannot appoint a guardian. Robin K. v. Lamanda M.
2006 WI 68,
291 Wis. 2d 333,
718 N.W.2d 38,
04-0767.
54.10 Annotation
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor's nomination of a guardian becomes moot. Nicholas C. L. v. Julie R. L.
2006 WI App 119,
293 Wis. 2d 819,
719 N.W.2d 508,
05-1754.
54.10 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.
54.10 Annotation
Section 752.31 (2) (d) and (3) provide that appeals in protective placement cases under ch. 55 are heard by a single court of appeals judge while the general rule under s. 752.31 (1) is that cases disposed of on the merits, including guardianship orders under ch. 54, are heard by a 3-judge panel. When an appeal is taken from a single action granting both a guardianship and protective placement petition, the appeal is to be decided by a 3-judge panel. Waukesha County v. Genevieve M.
2009 WI App 173,
322 Wis. 2d 131,
776 N.W.2d 640,
09-1755.
54.10 Annotation
Barstad,
118 Wis. 2d 549, rejected the "best interests" standard in custody disputes between parents and third parties. Barstad has not been quashed by the enactment of ch. 54. A best interests standard that does not consider a parent's constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a 3rd party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O.
2009 WI App 176,
322 Wis. 2d 615,
777 N.W.2d 664,
08-2456.
54.12
54.12
Exceptions to appointment of guardian. 54.12(1)(1)
Small estates. If a minor or an individual found incompetent, except for his or her incapacity, is entitled to possess assets valued at the amount specified in
s. 867.03 (1g) or less, any court in which an action or proceeding involving the assets is pending may, without requiring the appointment of a guardian, order that the register in probate do one of the following:
54.12(1)(a)
(a) Deposit the property in an interest-bearing account in a bank or other financial institution insured by an agency of the federal government or invest the property in interest-bearing obligations of the United States. The fee for services of the register in probate in depositing and disbursing the funds under this paragraph is prescribed in
s. 814.66 (1) (n).
54.12(1)(b)
(b) Make payment to the parent of the minor or to the person having actual custody of the minor.
54.12(1)(d)
(d) Make payment to the person having actual or legal custody of the incompetent or to the person providing for the care and maintenance of the individual found incompetent for the benefit of the individual found incompetent.
54.12(1)(e)
(e) Make payment to the agent under a durable power of attorney of the ward.
54.12(1)(f)
(f) Make payment to the trustee of any trust created for the benefit of the ward.
54.12(2)
(2) Informal administration. If an individual found incompetent, except for his or her incapacity, a minor, or a spendthrift is entitled to possession of assets of a value of the amount specified in
s. 867.03 (1g) (intro.) or less from an estate administered through informal administration under
ch. 865, the personal representative may, without the appointment of a guardian, do any of the following:
54.12(2)(a)
(a) With the approval of the register in probate, take one of the actions specified in
sub. (1) (a) to
(f).
54.12(2)(b)
(b) With the approval of the guardian ad litem of the minor or individual found incompetent, take one of the actions specified in
sub. (1) (a) to
(f) and file proof of the action taken and of the approval of the guardian ad litem with the probate registrar instead of filing a receipt under
s. 865.21.
54.12(3)
(3) Uniform gifts and transfers to minors. If a minor, except for his or her incapacity, is entitled to possession of personal property of any value, any court in which an action or proceeding involving the property is pending may, without requiring the appointment of a guardian, order payment, subject to any limitations the court may impose, to a custodian for the minor designated by the court under
ss. 54.854 to
54.898 or under the uniform gifts to minors act or uniform transfers to minors act of any other state.
NOMINATION OF GUARDIAN;
POWERS AND DUTIES; LIMITATIONS
54.15
54.15
Selection of guardian; nominations; preferences; other criteria. The court shall consider all of the following in determining who is appointed as guardian:
54.15(1)
(1) Opinions of proposed ward and family. The court shall take into consideration the opinions of the proposed ward and of the members of his or her family as to what is in the best interests of the proposed ward. However, the best interests of the proposed ward shall control in making the determination when the opinions of the family are in conflict with those best interests.
54.15(1m)
(1m) Potential conflicts of interest. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest.
54.15(2)
(2) Agent under durable power of attorney. The court shall appoint as guardian of the estate an agent under a proposed ward's durable power of attorney, unless the court finds that the appointment of an agent is not in the best interests of the proposed ward.
54.15(3)
(3) Agent under a power of attorney for health care. The court shall appoint as guardian of the person the agent under a proposed ward's power of attorney for health care, unless the court finds that the appointment of the agent is not in the best interests of the proposed ward.
54.15(4)
(4) Person nominated by proposed ward. 54.15(4)(a)(a) Any individual other than a minor aged 14 years or younger may, if the individual does not have incapacity to such an extent that he or she is unable to form a reasonable and informed preference, execute a written instrument, in the same manner as the execution of a will under
s. 853.03, nominating another to be appointed as guardian of his or her person or estate or both if a guardian is in the future appointed for the individual. The court shall appoint this nominee as guardian unless the court finds that the appointment is not in the best interests of the proposed ward.
54.15(4)(b)
(b) A minor who is 14 years or older may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is outside of the state, or if other good reason exists, the court may dispense with the minor's right of nomination.
54.15(4)(c)
(c) If neither parent of a minor who is 14 years or older is suitable and willing to be appointed guardian, the court may appoint the nominee of the minor.
54.15(5)
(5) Parent of a proposed ward. If one or both of the parents of a minor or an individual with developmental disability or with serious and persistent mental illness are suitable and willing, the court shall appoint one or both as guardian unless the court finds that the appointment is not in the proposed ward's best interest. The court shall consider a proposed ward's objection to the appointment of his or her parent.
54.15(6)
(6) Testamentary nomination by proposed ward's parents. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not in the minor's best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.
54.15(7)
(7) Private nonprofit corporation or other entity. A private nonprofit corporation organized under
ch. 181,
187, or
188 or an unincorporated association that is approved by the court may be appointed as guardian of the person or of the estate or both, of a proposed ward, if no suitable individual is available as guardian and the department, under rules promulgated under this chapter, finds the corporation or association to be a suitable agency to perform such duties.
54.15 Cross-reference
Cross-reference: See also ch.
DHS 85, Wis. adm. code.
54.15(8)
(8) Statement of acts by proposed guardian. 54.15(8)(a)(a) At least 96 hours before the hearing under
s. 54.44, the proposed guardian shall submit to the court a sworn and notarized statement as to whether any of the following is true:
54.15(8)(a)1.
1. The proposed guardian is currently charged with or has been convicted of a crime, as defined in
s. 939.12.
54.15(8)(a)2.
2. The proposed guardian has filed for or received protection under the federal bankruptcy laws.
54.15(8)(a)3.
3. Any license, certificate, permit, or registration of the proposed guardian that is required under
chs. 440 to
480 or by the laws of another state for the practice of a profession or occupation has been suspended or revoked.
54.15(8)(b)
(b) If
par. (a) 1.,
2.,
3., or
4. applies to the proposed guardian, he or she shall include in the sworn and notarized statement a description of the circumstances surrounding the applicable event under
par. (a) 1.,
2.,
3., or
4.
54.15(9)
(9) Limitation on number of wards of guardian. No individual may have guardianship of the person of more than 5 adult wards who are unrelated to the individual, except that a court may, under circumstances that the court determines are appropriate, waive this limitation to authorize appointment of the individual as guardian of the person of additional adult wards who are unrelated to the individual. A corporation or association that is approved by the department under
sub. (7) is not limited in the number of adult wards for which the corporation or association may accept appointment by a court as guardian.
54.15 Annotation
An unfit parent's nomination of a person to serve as guardian of his or her children should be weighed by the court. In re Guardianship of Schmidt,
71 Wis. 2d 317,
237 N.W.2d 919 (1976).
54.15 Annotation
A parent's fundamental liberty interest in the care, custody, and control of a child is not violated if his or her nomination of a guardian is not presumed to be in the child's best interests when the parent is unable to have custody and provide care. The preference in sub. (2) [now sub. (5)] does not address a parent's wishes for another to act as guardian when the parent is not suitable to act as guardian. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M.
2004 WI App 45,
270 Wis. 2d 411,
678 N.W.2d 285,
02-2640.
54.15 Annotation
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor's nomination of a guardian becomes moot. Nicholas C. L. v. Julie R. L.
2006 WI App 119,
293 Wis. 2d 819,
719 N.W.2d 508,
05-1754.
54.15 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.
54.15 Annotation
Barstad,
118 Wis. 2d 549, rejected the "best interests" standard in custody disputes between parents and third parties. Barstad has not been quashed by the enactment of ch. 54. A best interests standard that does not consider a parent's constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a 3rd party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O.
2009 WI App 176,
322 Wis. 2d 615,
777 N.W.2d 664,
08-2456.
54.15 Annotation
"Parent" as defined in s. 48.02 (13) as "either a biological parent . . . or a parent by adoption," applies to an action for guardianship of a minor. The action is a proceeding under ch. 48 as s. 48.14 provides that the juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under ch. 54. Application of a definition of "parent" that might include persons who are not biological or adoptive parents also runs afoul of Barstad. Under Barstad, a person who is not a biological or adoptive parent of a child is a 3rd party who cannot become the child's guardian over the biological or adoptive parent's objection absent compelling reasons, such as the unfitness of the biological or adoptive parent. Wendy M. v. Helen K.,
2010 WI App 90,
327 Wis. 2d 749;
787 N.W.2d 848,
09-0720.
54.18
54.18
General duties and powers of guardian; limitations; immunity. 54.18(1)(1) A ward retains all his or her rights that are not assigned to the guardian or otherwise limited by statute. A guardian acting on behalf of a ward may exercise only those powers that the guardian is authorized to exercise by statute or court order. A guardian may be granted only those powers necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention.
