54.34 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.
54.36
54.36
Examination of proposed ward. 54.36(1)
(1) Whenever it is proposed to appoint a guardian on the ground that a proposed ward allegedly has incompetency or is a spendthrift, a physician or psychologist, or both, shall examine the proposed ward and furnish a written report stating the physician's or psychologist's professional opinion regarding the presence and likely duration of any medical or other condition causing the proposed ward to have incapacity or to be a spendthrift. The privilege under
s. 905.04 does not apply to the report. The petitioner shall provide a copy of the report to the proposed ward or his or her counsel, the guardian ad litem, and the petitioner's attorney, if any. Prior to the examination on which the report is based, the guardian ad litem, physician, or psychologist shall inform the proposed ward that statements made by the proposed ward may be used as a basis for a finding of incompetency or a finding that he or she is a spendthrift, that he or she has a right to refuse to participate in the examination, absent a court order, or speak to the physician or psychologist, and that the physician or psychologist is required to report to the court even if the proposed ward does not speak to the physician or psychologist. The issuance of such a warning to the proposed ward prior to each examination establishes a presumption that the proposed ward understands that he or she need not speak to the physician or psychologist. Nothing in this section prohibits the use of a report by a physician or psychologist that is based on an examination of the proposed ward by the physician or psychologist before filing the petition for appointment of a guardian, but the court will consider the recency of the report in determining whether the report sufficiently describes the proposed ward's current state and in determining the weight to be given to the report.
54.36(2)
(2) A petitioner or guardian ad litem may petition the court for an order requiring the proposed ward to submit to an examination by a licensed physician or psychologist pursuant to
s. 804.10 (1).
54.36(3)
(3) A physician or psychologist who examines a proposed ward under a court order requiring the examination may, without the informed consent of the proposed ward, obtain access to the patient health care records and treatment records of the proposed ward.
54.36 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).
54.36 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.
54.36 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.
54.38(1)(1)
Form and delivery of notice. A notice shall be in writing. A copy of the petition, motion, or other required document shall be attached to the notice. Unless otherwise provided, notice may be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Failure of the petitioner to provide notice to all interested persons shall deprive the court of jurisdiction unless receipt of notice is waived by the interested person or under
sub. (2) (b) 4.
54.38(1m)
(1m) Notice of petition for receipt and acceptance of a foreign guardianship. 54.38(1m)(a)(a) Notice of a petition for receipt and acceptance of a foreign guardianship, unless otherwise provided, shall be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Notice shall be served by the petitioner on all of the following:
54.38(1m)(a)1.
1. The foreign ward. The notice under this subdivision shall be delivered personally, shall be in plain language and large type, and shall include all of the following:
54.38(1m)(a)1.a.
a. A statement that the foreign ward has the right to a hearing on the petition under
s. 54.44 and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person.
54.38(1m)(a)1.b.
b. A description of the procedures by which the foreign ward may exercise his or her right to a hearing.
54.38(1m)(a)1.c.
c. A description of the consequences to the foreign ward of a transfer of the foreign guardianship from the foreign jurisdiction to this state.
54.38(1m)(a)2.
2. The foreign court from which the foreign guardianship is sought to be transferred. Notice under this subdivision shall include a request that the foreign court provide all of the following:
54.38(1m)(a)2.a.
a. Certification that the foreign court has no knowledge that the foreign guardian has engaged in any acts specified in
s. 54.68 (2) (a) to
(i), failed to perform any duties of a guardian required by the foreign jurisdiction or the foreign court, or performed any acts prohibited to a guardian by the foreign jurisdiction or the foreign court.
54.38(1m)(a)2.b.
b. Copies of all documents filed with the foreign court that are relevant to the foreign guardianship, including the initial petition for the foreign guardianship and other filed documents relevant to the appointment of the guardian; any reports and recommendations of any guardian ad litem or other individual appointed by the foreign court to evaluate the appropriateness of the foreign guardianship; any reports of health care or mental health care practitioners that describe the capacity of the foreign ward to care for himself or herself or to manage his or her affairs; any periodic status reports on the condition of the foreign ward and his or her assets; and any order to transfer the foreign guardianship.
54.38(1m)(a)3.
3. All interested persons other than the foreign ward, including any foreign legal counsel appointed or retained for the foreign ward and any foreign guardian ad litem appointed for the foreign ward. Notice under this subdivision shall include a statement that informs persons receiving notice of the right to object to the receipt and acceptance of the foreign guardianship and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person, mailed, or sent by facsimile transmission.
54.38(1m)(b)
(b) Any of the following shall deprive the court of jurisdiction to hear the petition for receipt and acceptance of the foreign guardianship:
54.38(1m)(b)2.
2. Failure by the foreign court to provide the certifications and copies within 30 days after receipt of the notice specified in
par. (a) 2. or to give indication of compliance within a reasonable period of time.
54.38(2)
(2) Notice of hearing, service, and delivery. Upon the filing of a petition for guardianship of the person or of the estate, including appointment or change of a guardian, if the court is satisfied as to compliance with
s. 54.34, the court shall, except as provided in
sub. (3), order the petitioner to serve notice on the proposed ward and guardian, if any, and to deliver notice to interested persons of the time and place of the hearing, as follows:
54.38(2)(a)
(a) On the proposed ward or ward by personal service and an existing guardian, if any, by personal service or by registered or certified mail at least 10 days before the time set for hearing. If the proposed ward or ward is in custody or confinement, the petitioner shall have notice served by registered or certified mail on the proposed ward's or ward's custodian, who shall immediately serve it on the proposed ward or ward. The process server or custodian shall inform the proposed ward or ward of the complete contents of the notice and petition, motion, or other required document; certify on the notice that the process server or custodian served and informed the proposed ward or ward; and return the certificate and notice to the court.
54.38(2)(b)
(b) Personally or by mail at least 10 days before the time set for hearing, to all of the following:
54.38(2)(b)4.
4. Any other interested persons, unless specifically waived by the court.
54.38(2)(b)5.
5. The agent under any durable power of attorney or power of attorney for health care of the ward.
54.38(2)(b)6.
6. Any person who has legal or physical custody of the proposed ward.
54.38(2)(b)7.
7. Any public or private agency, charity, or foundation from which the proposed ward is receiving aid or assistance.
54.38(3)
(3) Notice of hearing for appointment of guardian for a minor. If the proposed ward is a minor, the court shall order delivery of notice by the petitioner of the time and place of the hearing to all of the following:
54.38(3)(b)
(b) The proposed ward's parent, unless the parent's parental rights have been judicially terminated.
54.38(3)(c)
(c) The proposed ward, if the proposed ward is over 14 years of age.
54.38(3)(d)
(d) Any other person that has the legal or physical custody of the minor.
54.38(4)
(4) Rehearings. Notice of a rehearing to determine if a ward is a proper subject to continue under guardianship shall be given as required under
subs. (1),
(2), and
(3).
54.38(5)
(5) Notice of appointment of guardian of a minor ward. If for any reason the court fails to appoint as guardian the nominee of the minor, the guardian who qualifies shall give notice of the guardian's appointment to the minor by certified mail addressed to the minor's last-known post-office address and shall file an affidavit of the mailing with the court within 10 days after the notice is given.
54.38(6)
(6) Notice of petition and hearing for temporary guardianship. The petitioner for appointment of a temporary guardian shall give notice of the petition to the proposed ward. The notice shall be served before or at the time the petition is filed or as soon thereafter as possible and shall include notice of the right to counsel and of the right to petition for reconsideration or modification of the temporary guardianship at any time under
s. 54.50 (3) (d) The petitioner shall serve notice of the order for hearing on the proposed ward before the hearing or not later than 3 calendar days after the hearing. If the petitioner serves notice after the hearing is conducted and the court has entered an order, the petitioner shall include the court's order with the notice of the order for hearing.
54.40
54.40
Guardian ad litem; appointment; duties; termination. 54.40(1)(1)
Appointment. The court shall appoint a guardian ad litem when a petition for appointment of a guardian is brought under
s. 54.34 (1), when a petition for receipt and acceptance of a foreign guardianship is brought under
s. 54.34 (3), to review the scope of a guardianship, to provide protective placement to an individual or order protective services under
ch. 55, to review any protective placement under
s. 55.18, to terminate a protective placement under
s. 55.17, to expand an order of guardianship under
s. 54.63, to review incompetency and terminate a guardianship under
s. 54.64, to review the conduct of a guardian under
s. 54.68, or at any other time that the court determines it is necessary.
54.40(2)
(2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state and in compliance with
SCR chapter 36. No one who is an interested person in a proceeding, appears as counsel in a proceeding on behalf of any party, or is a relative or representative of an interested person may be appointed guardian ad litem in that proceeding or in any other proceeding that involves the same proposed ward or ward.
54.40(3)
(3) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the proposed ward or ward 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 is not bound by, the wishes of the proposed ward or ward or the positions of others as to the best interests of the proposed ward or ward. The guardian ad litem has none of the rights or duties of a guardian.
54.40(4)
(4) General duties. A guardian ad litem shall do all of the following:
54.40(4)(a)
(a) Interview the proposed ward or ward and explain the contents of the petition, the applicable hearing procedure, the right to counsel, and the right to request or continue a limited guardianship.
54.40(4)(b)
(b) Advise the proposed ward or ward, both orally and in writing, of that person's rights to be present at the hearing, 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.
54.40(4)(c)
(c) Interview the proposed guardian, the proposed standby guardian, if any, and any other person seeking appointment as guardian and report to the court concerning the suitability of each individual interviewed to serve as guardian and concerning the statement under
s. 54.15 (8).
54.40(4)(d)1.1. Review any power of attorney for health care under
ch. 155, any durable power of attorney under
ch. 244 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.
54.40(4)(d)2.
2. Interview any agent appointed by the proposed ward under any document specified in
subd. 1.
54.40(4)(d)3.
3. Report to the court concerning whether or not the proposed ward's advance planning is adequate to preclude the need for guardianship.
54.40(4)(ds)
(ds) Notify the guardian of the right to be present at and participate in the hearing, to present and cross-examine witnesses, to receive a copy of any evaluation under
s. 55.11 (1) (intro.) or
(2), and to secure and present a report on an independent evaluation under
s. 54.42 (3).
54.40(4)(e)
(e) Request that the court order additional medical, psychological, or other evaluation, if necessary.
54.40(4)(f)
(f) If applicable, inform the court and petitioner's attorney or, if none, the petitioner that the proposed ward or ward 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 ward's best interests or that the proposed ward's or ward's position on these matters is ambiguous. If the guardian ad litem recommends that the hearing be held in a place other than a courtroom, the guardian ad litem shall provide the information under this paragraph as soon as possible.
54.40(4)(g)
(g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner's counsel, if any.
54.40(4)(h)
(h) Attend all court proceedings related to the guardianship.
54.40(4)(i)
(i) Present evidence concerning the best interests of the proposed ward or ward, if necessary.
54.40(4)(j)
(j) Report to the court on any matter that the court requests.
54.40(5)
(5) Communication to a jury. In jury trials under this chapter or
ch. 55, the court or guardian ad litem may tell the jury that the guardian ad litem represents the best interests of the proposed ward or ward.
54.40(6)
(6) 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 ward. 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 individual for whom the appointment is made may request that the court terminate any extension or reappointment. The guardian ad litem may appeal or may participate in an appeal. 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.
54.40 History
History: 2005 a. 264 ss.
213 to
215;
2005 a. 387 ss.
100,
477 to
487,
496,
497; Stats. 2005 s. 54.40;
2007 a. 45;
2007 a. 96 ss.
155 to
159;
2009 a. 319.
54.40 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).
54.40 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.
54.42
54.42
Rights of proposed ward or ward. 54.42(1)(a)(a) The proposed ward or ward has the right to counsel, if any of the following occurs:
54.42(1)(a)2.
2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.
54.42(1)(a)3.
3. The court determines that the interests of justice require counsel for the proposed ward or ward.
54.42(1)(b)
(b) Any attorney obtained under
par. (a) or appointed under
par. (c) shall be an advocate for the expressed wishes of the proposed ward or ward.
54.42(1)(c)
(c) If
par. (a) 1.,
2., or
3. applies but the proposed ward or ward is unable to obtain legal counsel, the court shall appoint legal counsel. If the proposed ward or ward is represented by counsel appointed under
s. 977.08 in a proceeding under a petition for protective placement brought under
s. 55.075, the court shall order the counsel appointed under
s. 977.08 to represent the proposed ward or ward.
54.42(2)
(2) Right to jury trial. The proposed ward or ward has the right to a trial by a jury if demanded by the proposed ward or ward, his or her attorney, or the guardian ad litem, except that the right is waived unless demanded at least 48 hours before the time set for the hearing. The number of jurors for such a trial is determined under
s. 756.06 (2) (b). The proposed ward or ward, his or her attorney, or the guardian ad litem each has the right to present and cross-examine witnesses, including any physician or licensed psychologist who reports to the court concerning the proposed ward.
54.42(3)
(3) Right to independent examination. If requested by the proposed ward, ward, or anyone on the proposed ward's or ward's behalf, the proposed ward or ward has the right at his or her own expense, or if indigent at the expense of the county where the petition is heard on the merits, to secure an independent medical or psychological examination relevant to the issue involved in any hearing under this chapter, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.
54.42(4)
(4) Right to payment of expenses in contesting proceedings. If a guardian is appointed, the court shall, if the court determines it reasonable, allow payment from the ward's income or assets of expenses incurred by the ward in contesting the appointment. These expenses are payable before other attorney or guardian ad litem fees.
54.42(5)
(5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.
54.42(6)
(6) Right to hearing in accessible location. The proposed ward or ward has the right to have any hearing regarding the guardianship conducted in a location and manner that is accessible to the proposed ward or ward.
54.42 Annotation
The right to counsel guaranteed under sub. (1) (b) includes the ward's right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court. Jennifer M. v. Mauer,
2010 WI App 8,
323 Wis. 2d 126,
779 N.W.2d 436,
08-1985.
54.44(1)(1)
Time of hearing; provision of reports. 54.44(1)(a)(a)
Time of hearing for petition. A petition for guardianship, other than a petition under
par. (b) or
(c) or
s. 54.50 (1), shall be heard within 90 days after it is filed. The guardian ad litem and attorney for the proposed ward or ward shall be provided with a copy of the report of the examining physician or psychologist under
s. 54.36 (1) at least 96 hours before the time of the hearing.
54.44(1)(b)
(b)
Time of hearing for certain appointments. A petition for guardianship of an individual who has been admitted to a nursing home or a community-based residential facility under
s. 50.06 shall be heard within 60 days after it is filed. If an individual under
s. 50.06 (3) alleges that an individual is making a health care decision under
s. 50.06 (5) (a) that is not in the best interests of the incapacitated individual or if the incapacitated individual verbally objects to or otherwise actively protests the admission, the petition shall be heard as soon as possible within the 60-day period.
54.44(1)(c)
(c)
Time of hearing for petition for receipt and acceptance of a foreign guardianship.
