54.56 History
History: 1975 c. 122;
1995 a. 38;
1999 a. 9;
2005 a. 387 s.
373; Stats. 2005 s. 54.56.
54.56 Annotation
The adoption of a child of a deceased parent does not terminate the decedent's parents' grandparental visitation rights under s. 880.155 [now this section]. Grandparental Visitation of C.G.F.
168 Wis. 2d 62, N.W.2d 803 (1992).
54.56 Annotation
Section 767.245 (5) [now s. 767.43 (5)] sets an appropriate standard for determining the best interests of a child under this section. The court did not exceed its authority under this section or violate a parent's constitutional rights to raise a child by ordering grandparent visitation, nor did it violate this section by ordering a guardian ad litem, mediation, and psychological evaluations. The court was not authorized by this section to order psychotherapeutic treatment that was arguably in the child's best interests, but outside the scope of visitation. F.R. v. T.B.
225 Wis. 2d 628,
593 N.W.2d 840 (Ct. App. 1999),
98-0819.
54.56 Annotation
Grandparent Visitation Rights. Rothstein. Wis. Law. Nov. 1992.
54.56 Annotation
The Effect of C.G.F. and Section 48.925 on Grandparental Visitation Petitions. Hughes. Wis. Law. Nov. 1992.
54.56 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.
54.56 Annotation
Under
Troxel v. Granville,
530 U.S. 57, the due process clause prevents a court from starting with a clean slate when assessing whether grandparent visitation is in the best interests of the child. Within the best interests framework, the court must afford a parent's decision special weight by applying a rebuttable presumption that the fit parent's decision regarding grandparent visitation is in the best interest of the child. It is up to the party advocating for nonparental visitation to rebut the presumption by presenting evidence that the offer is not in the child's best interests. Martin L. v. Julie R. L.
2007 WI App 37,
299 Wis. 2d 768,
731 N.W.2d 288,
06-0199.
54.56 Annotation
The award of overnights and a week during the summer in a grandparent visitation order was not contrary to law for being akin to a physical placement award found in divorce cases. There is no difference between the quantity of "physical placement" as that term is used in s. 767.001 (5) and the quantity of "visitation" as that word is used in this section. The proper amount of that time is a decision made by the family court in the best interests of the children. The quantity of time ordered does not depend on whether it is a visitation order or a physical placement order. Rick v. Opichka,
2010 WI App 23,
323 Wis. 2d 510,
780 N.W.2d 159,
09-0040.
54.56 Annotation
When children visit their grandparents and stay with them as a guest, the grandparents have the responsibility to make routine daily decisions regarding the child's care but may not make any decisions inconsistent with the major decisions made by a person having legal custody. The same is true of a parent who does not have joint legal custody, but does have a right to physical placement. In both instances, the same rules apply: routine daily decisions may be made, but nothing greater. Rick v. Opichka,
2010 WI App 23,
323 Wis. 2d 510,
780 N.W.2d 159,
09-0040.
54.57
54.57
Prohibiting visitation or physical placement if a parent kills other parent. 54.57(1)
(1) Except as provided in
sub. (2), in an action under this chapter that affects a minor, a court may not grant to a parent of the minor visitation or physical placement rights with the minor if the parent has been convicted under
s. 940.01 of the first-degree intentional homicide, or under
s. 940.05 of the 2nd-degree intentional homicide, of the minor's other parent, and the conviction has not been reversed, set aside or vacated.
54.57(2)
(2) Subsection (1) does not apply if the court determines by clear and convincing evidence that visitation or periods of physical placement would be in the best interests of the minor. The court shall consider the wishes of the minor in making the determination.
54.57 History
History: 1999 a. 9;
2005 a. 387 ss.
374 to
376; Stats. 2005 s. 54.57.
POST-APPOINTMENT MATTERS
54.60(1)(1)
Inventory required. The guardian of the estate shall prepare an inventory that lists all of the ward's income and assets, including interests in property and any marital property interest, regardless of how the asset is titled.
54.60(2)
(2) Contents of inventory. The inventory shall provide all of the following information with respect to each asset:
54.60(2)(b)
(b) The name and relationship to the ward of any co-owner.
54.60(2)(c)
(c) The marital property classification of the property and, for any property that is marital property, the spouse who has management and control rights with respect to the property.
54.60(3)
(3) Time for filing. The guardian of the estate shall file the initial inventory within 60 days after appointment, unless the court extends or reduces the time.
54.60(4)
(4) Notice of inventory. The court shall specify the persons to whom the guardian of the estate shall provide copies of the inventory.
54.60(5)
(5) Fee. The guardian of the estate shall pay from the ward's income and assets the fee specified in
s. 814.66 (1) (b) 2. at the time the inventory or other documents concerning the value of the income and assets are filed.
54.60(6)
(6) Appraisal. The court may order that the guardian of the estate appraise all or any part of the ward's assets.
54.60(7)
(7) Verification, examination in court. Every guardian of the estate shall verify by oath to the best of the guardian's information and belief that every inventory required of the guardian of the estate includes all income and assets of the ward. The court, at the request of any party or on its own motion may examine the guardian of the estate on oath as to the inventory or any supposed omission from the inventory.
54.60(8)
(8) Citation to file inventory and to account. If any guardian neglects to file the inventory or account when required by law, the court shall call the attention of the guardian of the estate to the neglect. If the guardian of the estate continues to neglect his or her duty, the court shall order the guardian of the estate to file the inventory, and the costs may be adjudged against the guardian of the estate.
54.60 History
History: 2005 a. 387 ss.
100,
384,
385,
405,
406.
54.62(1)(1)
Annual accounts. Except as provided in
sub. (3) or unless waived by a court, every guardian, including a corporate guardian, shall, prior to April 15 of each year, file an account under oath that specifies the amount of the ward's assets or income received and held or invested by the guardian, the nature and manner of the investment, and the guardian's receipts and expenditures during the preceding calendar year. The court may order the guardian to render and file, within 30 days, a like account for less than a year. In lieu of the filing of these accounts before April 15 of each year, the court may, by appropriate order upon motion of the guardian, direct the guardian of an estate to render and file the annual accountings within 60 days after the anniversary date of the guardian's qualification as guardian, with the accounting period from the anniversary date of qualification to the ensuing annual anniversary date. The guardian shall also report any change in the status of the surety upon the guardian's bond. If the court determines it to be in the ward's best interests, the court may specify the persons to whom the guardian shall distribute copies of the account.
54.62(2)
(2) Display of assets. Upon rendering the account the guardian shall produce for examination by the court, or by a person satisfactory to the court, evidence of all of the ward's securities, depository accounts, and other investments, which shall be described in the account in sufficient detail so that they may be readily identified. The court or person satisfactory to the court shall ascertain whether the evidence of securities, depository accounts, and other investments correspond with the account.
54.62(3)(a)(a) If a ward's income and assets do not exceed the amount specified in
s. 867.03 (1g) (intro.), the guardian need not file an account under
sub. (1) unless otherwise ordered to do so by the court. For the purposes of this paragraph, the value of the ward's income and assets does not include the ward's income, any burial trust possessed by the ward, or any term or other life insurance policy that is irrevocably assigned to pay for the disposition of the ward's remains at death.
54.62(3)(b)
(b) If the ward's income and assets, as calculated under
par. (a), increase above the amount specified in
s. 867.03 (1g) (intro.), the guardian shall so notify the court, which shall determine if an annual account under
sub. (1) or a final account under
s. 54.66 is required.
54.62(4)
(4) Annual accounts of married wards. 54.62(4)(a)(a) For a married ward, the court may waive filing of an annual account under
sub. (1) or permit the filing of a modified annual account, which shall be signed by the ward's guardian and spouse and shall consist of all of the following:
54.62(4)(a)1.
1. Total assets of the ward, as determined under
ch. 766, on January 1 of the year in question.
54.62(4)(a)2.
2. Income in the name of the ward, without regard to
ch. 766, and the ward's joint income.
54.62(4)(a)3.
3. Expenses incurred on behalf of the ward, including the ward's proportionate share of household expenses if the ward and the ward's spouse reside in the same household, without regard to
ch. 766.
54.62(4)(a)4.
4. Total marital property of the ward, as determined under
ch. 766, on December 31 of the year in question.
54.62(4)(b)
(b) The court shall provide notice of the waiver under
par. (a) to any adult child of the ward.
54.62(5)
(5) Examination of accounts. The account shall be examined as the court directs. If the account is not satisfactory, the court shall order action as justice requires and shall direct that notice be provided to the guardian personally or by certified mail. If notice is provided to the guardian under this subsection, the court may appoint a guardian ad litem for the ward.
54.62(6)
(6) Accounting by 3rd parties to guardian. If a guardian appointed by a court so requests, the court may order any person entrusted by the guardian with part of the estate of a ward to appear before the court and to render a full account, on oath, of the income or assets and of his or her action regarding the income or assets. If the person refuses to appear and render an account, the court may proceed against him or her as for contempt.
54.62(7)
(7) Notice of final action on an account. No action by the court on an account is final unless the guardian first provides notice to all of the following, as applicable:
54.62(7)(b)
(b) Any guardian ad litem appointed by the court.
54.62(7)(c)
(c) Any personal representative or special administrator appointed by the court.
54.62(8)
(8) Accounts; failure of a guardian to file. If a guardian fails to file the guardian's account as required by law or ordered by the court, the court may, upon its own motion or upon the petition of any interested party, order the guardian to show cause why the guardian should not immediately make and file the guardian's reports or accounts. The court shall direct that a copy of the order be served on the guardian at least 20 days before the date that the court has ordered the guardian to appear in court. If a guardian fails, neglects or refuses to make and file any report or account after having been cited by the court to do so, or if the guardian fails to appear in court as directed by a citation issued by the court, the court may, on its own motion or on the petition of any interested party, issue a warrant directed to the sheriff ordering that the guardian be brought before the court to show cause why the guardian should not be punished for contempt. If the court finds that the failure, refusal, or neglect is willful or inexcusable, the guardian may be fined not to exceed $250 or imprisoned not to exceed 10 days or both.
54.62(9)
(9) Accounting by guardians at any time. The court may at any time require an accounting by any guardian at a hearing, after providing notice to all interested persons, including sureties on the bond of a guardian.
54.62 History
History: 2005 a. 387 ss.
100,
426,
428,
429,
431,
432,
434,
435;
2007 a. 45.
54.625
54.625
Transfer of guardianship funds of a Menominee. The court that has appointed a guardian of the estate of any minor or individual found incompetent who is a legally enrolled member of the Menominee Indian tribe, as defined in
s. 49.385, or a lawful distributee, as defined in
s. 54.850 (3), of the member may direct the guardian to transfer the assets in the guardian's possession of the minor or individual found incompetent to the trustees of the trust created by the secretary of interior or his or her delegate that receives property of the minors or individuals found incompetent that is transferred from the United States or any agency thereof as provided by
P.L. 83-399, as amended, and the assets shall thereafter be held, administered, and distributed in accordance with the terms and conditions of the trust.
54.625 History
History: 1971 c. 41 s.
8; Stats. 1971 s. 880.195;
1977 c. 449;
1995 a. 27;
2005 a. 387 s.
408; Stats. 2005 s. 54.625.
54.63
54.63
Expansion of order of guardianship; procedure. 54.63(1)(1) If the guardian or another interested person submits to the court a written statement with relevant accompanying support requesting the removal of rights from the ward and transfer to the guardian of powers in addition to those specified in the order of appointment of the guardian, based on an expansion of the ward's incapacity, the court shall do all of the following:
54.63(1)(a)
(a) Appoint a guardian ad litem for the ward.
54.63(1)(b)
(b) Order that notice, including notice concerning potential court action if circumstances are extraordinary, be given to all of the following:
54.63(1)(b)1.
1. The county department of social services or human services if the ward is protectively placed or receives long-term support services as a public benefit.
54.63(1)(b)4.
4. The agent under the ward's power of attorney for health care under
ch. 155, if any, and the agent under the ward's durable power of attorney under
ch. 244, if any.
54.63(2)(a)(a) If, after 10 days after notice is provided under
sub. (1) (b), or earlier if the court determines that the circumstances are extraordinary, no person submits to the court an objection to the request under
sub. (1), the court may amend the order entered under
s. 54.46 (2) and enter a determination and the amended order that specifies any change in the powers of the guardian.
54.63(2)(b)
(b) If, within 10 days after notice is provided under
sub. (1) (b), a person submits to the court an objection to the request under
sub. (1), the court shall hold a hearing, unless the objector declines a hearing, under the procedure specified in
s. 54.64 (2).
54.63 History
History: 2005 a. 387;
2009 a. 319.
54.64
54.64
Review of incompetency and termination of guardianship. 54.64(1)(1)
Duration. Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the ward, until terminated by the court, or as provided under
sub. (3) or
(4).
54.64(2)(a)(a) A ward who is 18 years of age or older, any person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency, to have the guardian discharged and a new guardian appointed, or to have the guardianship limited and specific rights restored. The petition may be filed at any time after 180 days after any previous hearing under
s. 54.44, or at any time if the court determines that exigent circumstances, including presentation of new evidence, require a review. If a petition is filed, the court shall do all of the following:
54.64(2)(a)3.
3. Designate the persons who are entitled to notice of the hearing and designate the manner in which the notice shall be given.
54.64(2)(a)4.
4. Conduct a hearing at which the ward is present and has the right to a jury trial, if demanded.
54.64(2)(b)
(b) The ward has the right to counsel for purposes of the hearing under
par. (a). Notwithstanding any finding of incompetence for the ward, the ward may retain and contract for the payment of reasonable fees to an attorney, the selection of whom is subject to court approval, in connection with proceedings involving review of the terms and conditions of the guardianship, including the question of incompetence. The court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, the county of jurisdiction for the guardianship shall provide counsel at the county's expense.
54.64(2)(c)
(c) After a hearing under
par. (a) or on its own motion, a court may terminate or modify the guardianship, including restoring certain of the ward's rights.
54.64(2)(d)
(d) The court shall review and may terminate the guardianship of the person of an individual found incompetent upon marriage to any person who is not subject to a guardianship.
54.64(3)
(3) Termination of guardianship of the person. A guardianship of the person shall terminate if any of the following occurs:
54.64(3)(a)
(a) The court adjudicates a ward who was formerly found to be incompetent to be no longer incompetent or terminates the guardianship under
sub. (2) (d).
54.64(3)(b)
(b) The ward changes residence from this state to another state and a guardian is appointed in the new state of residence.
54.64(3)(c)
(c) A formerly minor ward attains age 18, unless the guardianship was ordered on the grounds of incompetency.
54.64(3)(d)
(d) A minor ward whose guardianship was not ordered on the grounds of incompetency marries.
54.64(4)
(4) Termination of guardianship of the estate. A guardianship of the estate shall terminate if any of the following occurs:
54.64(4)(a)
(a) The court adjudicates a ward who was formerly found to be incompetent to be no longer incompetent or a ward who was formerly found to be a spendthrift to be capable of handling his or her income and assets.
54.64(4)(b)
(b) The ward changes residence from this state to another state and a guardian is appointed in the new state of residence.
54.64(4)(d)
(d) A minor ward whose guardianship was not ordered on the grounds of incompetency marries and the court approves the termination.
