54.25(2)(d)3.
3. In exercising powers and duties delegated to the guardian of the person under this paragraph, the guardian of the person shall, consistent with meeting the individual's essential requirements for health and safety and protecting the individual from abuse, exploitation, and neglect, do all of the following:
54.25(2)(d)3.a.
a. Place the least possible restriction on the individual's personal liberty and exercise of constitutional and statutory rights, and promote the greatest possible integration of the individual into his or her community.
54.25(2)(d)3.b.
b. Make diligent efforts to identify and honor the individual's preferences with respect to choice of place of living, personal liberty and mobility, choice of associates, communication with others, personal privacy, and choices related to sexual expression and procreation. In making a decision to act contrary to the individual's expressed wishes, the guardian shall take into account the individual's understanding of the nature and consequences of the decision, the level of risk involved, the value of the opportunity for the individual to develop decision-making skills, and the need of the individual for wider experience.
54.25(2)(d)3.c.
c. Consider whether the ward's estate is sufficient to pay for the needed services.
54.25 Annotation
The guardian of an incompetent person in a persistent vegetative state may consent to the withdrawal or withholding of life-sustaining medical treatment without prior court approval if the guardian determines that the withdrawal or withholding is in the ward's best interests. In Matter of Guardianship of L.W.
167 Wis. 2d 53,
482 N.W.2d 60 (1992).
54.25 Annotation
The guardian of a person who became incompetent after voluntarily entering a nursing home with 16 or more beds may not consent to the person's continued residence in the home. Upon the appointment of a guardian, the court must hold a protective placement hearing. Guardianship of Agnes T.
189 Wis. 2d 520,
525 N.W.2d 268 (1995). See also s. 54.34 (2m).
54.25 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.
54.25 Annotation
The holding in
Guardianship of L.W. does not extend to persons who are not in a persistent vegetative state. However, if the guardian of the person not in a persistent vegetative state demonstrates by a clear statement of the ward made while competent that withdrawal of medical treatment is desired, it is in the patient's best interest to honor those wishes. Spahn v. Eiseberg,
210 Wis. 2d 557,
563 N.W.2d 485 (1997),
95-2719.
54.25 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.
PROCEDURES
54.30
54.30
Jurisdiction and venue. 54.30(1)
(1)
Jurisdiction. Except as provided in
s. 54.38 (1), the circuit court has subject matter jurisdiction over all petitions for guardianship. A guardianship of the estate of any individual, once granted, shall extend to all of the ward's income and assets in this state and shall exclude the jurisdiction of every other circuit court, except as provided in
ch. 786. Jurisdiction under this subsection also extends to the petition by a foreign guardian for the receipt and acceptance of a foreign guardianship, except as provided in
s. 54.38 (1m) and, if the petition is granted, to the accepted guardianship.
54.30(2)
(2) Venue. All petitions for guardianship of residents of the state shall be directed to the circuit court of the county of residence of the proposed ward or of the county in which the proposed ward is physically present. A petition for guardianship of the person or estate of a nonresident may be directed to the circuit court of any county in which the nonresident or any assets of the nonresident may be found or of the county in which the petitioner proposes that the proposed ward resides. A petition for receipt and acceptance of a foreign guardianship shall be directed to the circuit court of the county in which the foreign ward resides or intends to reside.
54.30(3)(a)(a)
Original proceeding. The court in which a petition is first filed shall determine venue. The court shall direct that proper notice be given to any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under
sub. (2) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, if it is satisfied that an earlier filing took place in another court, summarily dismiss the petition. If any potentially responsible or affected county or party objects to the court's finding of venue, the court may refer the issue to the department for a determination of the county of residence under
s. 51.40 (2) (g) and may suspend ruling on the motion for change of venue until the determination under
s. 51.40 (2) (g) is final.
54.30(3)(b)
(b) Change of residence of ward. If a ward changes residence from one county to another county within the state, venue may be transferred to the ward's new county of residence under the following procedure:
54.30(3)(b)1.
1. An interested person shall file a petition for change of venue in the county in which venue for the guardianship currently lies.
54.30(3)(b)2.
2. The person filing the petition under
subd. 1. shall give notice to the corporation counsel of the county in which venue for the guardianship currently lies and to the register in probate and corporation counsel for the county to which change of venue is sought.
54.30(3)(b)3.
3. If no objection to the change of venue is made within 15 days after the date on which notice is given under
subd. 2., the circuit court of the county in which venue for the guardianship currently lies may enter an order changing venue. If objection to the change of venue is made within 15 days after the date on which notice is given under
subd. 2., the circuit court of the county in which venue for the guardianship currently lies shall set a date for a hearing within 7 days after the objection is made and shall give notice of the hearing to the corporation counsel of that county and to the corporation counsel and register in probate of the county to which change of venue is sought.
54.30 History
History: 2005 a. 387 ss.
100,
306,
313 to
316.
54.30 Annotation
Standards for courts to follow when confronted with the transfer of interstate guardianships based on principles of comity and the orderly administration of justice are set out. Grant County Department of Social Services v. Unified Board of Grant and Iowa Counties,
2005 WI 106,
283 Wis. 2d 258,
700 N.W.2d 863,
03-0634.
54.30 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.
54.34
54.34
Petition for guardianship or for receipt and acceptance of a foreign guardianship. 54.34(1)
(1) Any person may petition for the appointment of a guardian for an individual. The petition shall state all of the following, if known to the petitioner:
54.34(1)(a)
(a) The name, date of birth, residence, and post-office address of the proposed ward and, if the proposed ward is a minor, whether the minor has been adopted.
54.34(1)(b)
(b) The specific nature of the proposed ward's alleged incapacity or spendthrift habits.
54.34(1)(c)
(c) The approximate value of the proposed ward's property and a general description of its nature.
54.34(1)(d)
(d) Any assets of the proposed ward previously derived from or benefits of the proposed ward now due and payable from the U.S. department of veterans affairs.
54.34(1)(e)
(e) Any other claim, income, compensation, pension, insurance or allowance to which the proposed ward may be entitled.
54.34(1)(f)
(f) Whether the proposed ward has any guardian presently.
54.34(1)(g)
(g) The name and post-office address of any person nominated as guardian by the petitioner.
54.34(1)(h)
(h) The names and post-office addresses of all interested parties.
54.34(1)(i)
(i) The name and post-office address of the person or institution, if any, that has care and custody of the proposed ward or the facility, if any, that is providing care to the proposed ward.
54.34(1)(j)
(j) The interest of the petitioner, and, if a public official is the petitioner, the authority of the petitioner to act.
54.34(1)(k)
(k) Whether the proposed ward is a recipient of a public benefit, including medical assistance or a benefit under
s. 46.27.
54.34(1)(L)
(L) The agent under any current, valid power of attorney for health care or durable power of attorney that the proposed ward has executed.
54.34(1)(m)
(m) Whether the petitioner is requesting a full or limited guardianship and, if limited, the specific authority sought by the petitioner for the guardian or the specific rights of the individual that the petitioner seeks to have removed or transferred.
54.34(1)(n)
(n) Whether the proposed ward, if married, has children who are not children of the current marriage.
54.34(1)(p)
(p) Whether the petitioner is aware of any guardianship or conservatorship or related pending or ordered proceeding involving the proposed ward in another state or county and, if so, the details of the guardianship, conservationship, or related processings.
54.34(2)
(2) A petition for guardianship may include an application for protective placement or protective services or both under
ch. 55.
54.34(2m)
(2m) Whenever a petition for guardianship on the ground of incompetency is filed with respect to an individual who resides in a facility licensed for 16 or more beds, a petition for protective placement of the individual shall also be filed.
54.34(3)
(3) A petition for the receipt and acceptance by this state of a foreign guardianship of a foreign ward who resides in or intends to move to this state may include other petitions related to the foreign guardianship, such as a petition to modify the terms of the foreign guardianship, and shall include all of the following:
54.34(3)(a)
(a) A certified copy of the foreign guardianship order that includes all of the following:
54.34(3)(a)1.
1. All attachments that describe the duties and powers of the foreign guardian.
54.34(3)(a)2.
2. All amendments or modifications to the foreign guardianship order that were entered after issuance of the original foreign guardianship order, including any order to transfer the foreign guardianship.
54.34(3)(b)
(b) The address of the foreign court that issued the foreign guardianship order.
54.34(3)(c)
(c) A listing of any other guardianship petitions for the foreign ward that are pending or that have been filed in any jurisdiction at any time within 24 months before the filing of the petition under this subsection and the names and addresses of the courts in which the petitions have been filed.
54.34(3)(d)
(d) The petitioner's name, residence, current address, and any relationship of the petitioner to the foreign ward other than as foreign guardian.
54.34(3)(e)
(e) The name, age, principal residence, and current address of the foreign ward.
54.34(3)(f)
(f) The name and address of any spouse of the foreign ward and any adult children, parents, or adult siblings of the foreign ward. If the foreign ward has no spouse, adult child, parent, or adult sibling, the name and address of at least one adult who is next closest in degree of kinship, as specified in
s. 990.001 (16), to the ward, if available.
54.34(3)(g)
(g) The name and address of any person other than the foreign guardian who is responsible for the care or custody of the foreign ward.
54.34(3)(h)
(h) The name and address of any legal counsel of the foreign ward, including any guardian ad litem appointed by the foreign court.
54.34(3)(i)
(i) The reason for the transfer of the foreign guardianship.
54.34(3)(j)
(j) A general statement of the foreign ward's property, its location, its estimated value, and the source and amount of any other anticipated income or receipts.
54.34 Annotation
Failure of a petitioner for a guardianship to name persons who obviously had an interest does not cancel the jurisdiction of the court, and when the interested persons had actual knowledge of the hearing and contested it, the court could appoint a guardian. Guardianship of Marak,
59 Wis. 2d 139,
207 N.W.2d 648 (1973).
54.34 Annotation
Sub. (1) (e) is broad enough to include a claim for support. By providing that a guardianship petition include such a potential claim, it follows that the legislature envisioned that the circuit court has the authority to adjudicate such a claim. As ch. 880 does not otherwise address support nor provide guidelines as to how to determine support, a circuit court conducting a ch. 880 [now ch. 54] proceeding may look to ch. 767 for guidance. Amy Z. v. Jon T.
2004 WI App 73,
272 Wis. 2d 662,
679 N.W.2d 903,
03-0606.
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.
54.34 Annotation
Someone's Afoot: Wisconsin's Foreign Guardianship Transfer Law. Simatic. 95 MLR (No. 3 2012).
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:
