48.978(3)(e)2.
2. A copy of the determination of incapacity received under par.
(c) 1., the certificate of death received under par.
(c) 2. or the determination of debilitation and written consent received under par.
(c) 3. 48.978(3)(e)3.
3. If the petition is filed by a person who has been designated as an alternate standby guardian, a statement that the person designated as standby guardian is unwilling or unable to act as standby guardian and the factual basis for that statement.
48.978(3)(f)1.1. The petitioner shall cause the petition and notice of the time and place of the plea hearing under subd.
2. to be served on all of the persons specified in sub.
(2) (c) 1. a. to
f. and on the parent who has made the written designation under par.
(a), if living. Service shall be made in the manner provided in sub.
(2) (c) 2. 48.978(3)(f)2.
2. The court shall hold a plea hearing, a fact-finding hearing and a dispositional hearing in the manner provided in sub.
(2) (d) to
(g) and shall enter a dispositional order as provided in sub.
(2) (j) and
(k) 1., except that at the fact-finding hearing any party may present evidence relevant to the issues specified in par.
(g), and at the conclusion of that hearing the court shall immediately proceed to a dispositional hearing, unless an adjournment is requested, if the court finds by clear and convincing evidence that the conditions specified in par.
(g) have been met.
48.978(3)(g)
(g)
Required findings by court. The court shall appoint a person to be a standby guardian under this subsection if, after making the following findings by clear and convincing evidence, the court determines that the appointment is in the best interests of the child:
48.978(3)(g)1.
1. That the person was designated as standby guardian in accordance with pars.
(a) and
(b).
48.978(3)(g)2.
2. That the standby guardian has received a determination of incapacity, a death certificate, or a determination of debilitation and written consent, as provided in par.
(c) 1.,
2. or
3., whichever is applicable.
48.978(3)(g)3.
3. That the child has no parent who is willing and able to exercise the duty and authority of guardianship.
48.978(3)(g)4.
4. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent or, if a parent has refused to consent to the designation of the standby guardian, the consent was unreasonably withheld.
48.978(3)(g)5.
5. That, if the petitioner is a person designated as an alternate standby guardian, the person designated as standby guardian is unwilling or unable to act as standby guardian.
48.978(3)(h)
(h)
Dispositional factors. In determining the appropriate disposition under par.
(g), the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
48.978(3)(h)1.
1. Whether the person designated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
48.978(3)(h)2.
2. The willingness and ability of the person designated as standby guardian or alternate standby guardian to serve as the child's guardian.
48.978(3)(i)
(i)
Appearance by parent. If the parent who has made a written designation under par.
(a) is medically unable to appear at a hearing specified in par.
(f) 2., the court may dispense with the parent's appearance, except on the motion of a party and for good cause shown.
48.978(3)(j)1.1. A parent who has made a written designation under par.
(a) may, at any time before the filing of a petition under par.
(e), revoke a standby guardianship created under this subsection by executing a written revocation and notifying the standby guardian in writing of the revocation, making a subsequent written designation under par.
(a) or verbally revoking the standby guardianship in the presence of 2 witnesses.
48.978(3)(j)2.
2. After a petition under par.
(e) has been filed but before the standby guardian has been judicially appointed under par.
(g), a parent who has made a written designation under par.
(a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court with which the petition has been filed and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may dismiss the petition and rescind the guardianship if the court determines that dismissal of the petition and rescission of the guardianship are in the best interests of the child.
48.978(3)(j)3.
3. After the standby guardian has been judicially appointed under par.
(g), a parent who has made a written designation under par.
(a) may revoke a standby guardianship created under this subsection by executing a written revocation, filing the revocation with the court that entered the guardianship order and notifying the standby guardian in writing of the revocation. On compliance with this subdivision, the court may rescind the guardianship order if the court determines that rescission of the guardianship order is in the best interests of the child.
48.978(3)(k)1.1. A person whom a parent has designated as a standby guardian under par.
(a) may, at any time before the filing of a petition under par.
(e), renounce that designation by executing a written renunciation and notifying the parent, if living, in writing of that renunciation.
48.978(3)(k)2.
2. After a petition under par.
(e) has been filed, but before the standby guardian has been judicially appointed under par.
(g), a person whom a parent has designated as a standby guardian under par.
(a) may renounce that designation by executing a written renunciation, filing the renunciation with the court with which the petition has been filed and notifying the parent, if living, in writing of that renunciation. On compliance with this subdivision, the court may accept the renunciation and rescind the guardianship order if the court finds that the renunciation and rescission are in the best interests of the child.
48.978(3)(k)3.
3. A person who has been judicially appointed as a standby guardian under par.
(g) may, at any time after that appointment, resign that appointment by executing a written resignation, filing the resignation with the court that entered the guardianship order and notifying the parent who designated the person as a standby guardian under par.
(a), if living, in writing of that resignation. On compliance with this subdivision, the court may accept the resignation and rescind the guardianship order if the court determines that the resignation and rescission are in the best interests of the child.
48.978(4)
(4) Determination of incapacity or debilitation. 48.978(4)(a)1.1. A determination of incapacity or debilitation under this section shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the cause and nature of the parent's incapacity or debilitation and the extent and probable duration of the incapacity or debilitation.
48.978(4)(a)2.
2. If a standby guardian's identity is known to an attending physician making a determination of incapacity or debilitation, the attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian.
48.978(4)(b)
(b)
On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's incapacity or debilitation for purposes of this section.
48.978(4)(c)
(c)
Information to be provided to parent. On receipt of a determination of a parent's incapacity, a standby guardian shall inform the parent of all of the following, if the parent is able to comprehend that information:
48.978(4)(c)1.
1. That a determination of incapacity has been made and, as a result, the duty and authority of the standby guardian have begun.
48.978(5)
(5) Determination of recovery or remission. 48.978(5)(a)1.1. A determination that a parent has recovered or is in remission from his or her incapacity or debilitation shall be in writing, shall be made to a reasonable degree of medical certainty by an attending physician and shall contain the opinion of the attending physician regarding the extent and probable duration of the recovery or remission.
48.978(5)(a)2.
2. If a standby guardian's identity is known to an attending physician making a determination of recovery or remission, the attending physician shall provide a copy of the determination of recovery or remission to the standby guardian.
48.978(5)(b)
(b)
On request of standby guardian. If requested by a standby guardian, an attending physician shall make a determination regarding a parent's recovery or remission for purposes of this section.
48.978(6)
(6) Parental rights; duty and authority of standby guardian. 48.978(6)(a)(a)
Parental rights. The beginning of the duty and authority of a standby guardian under sub.
(2) or
(3) does not, in itself, divest a parent of any parental rights.
48.978(6)(b)1.1. Unless limited under subd.
2., a standby guardian appointed under sub.
(2) or designated under sub.
(3) shall have all of the duties and authority specified in s.
48.023.
48.978(6)(b)2.
2. The court may order or a parent may provide that the duties and authority of a standby guardian appointed under sub.
(2) or designated under sub.
(3) be limited. The duties and authority of a limited standby guardian shall be as specified by the order of appointment under sub.
(2) (j) 2. or the written designation under sub.
(3) (a). All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited standby guardian appointed under sub.
(2) or designated under sub.
(3) to the extent those provisions are relevant to the duties or authority of the limited standby guardian, except as limited by the order of appointment or written designation.
48.978(7)(a)
(a) Except when a different right, remedy or procedure is provided under this section, the rights, remedies, and procedures provided in ch.
54 shall govern a standby guardianship created under this section.
48.978(7)(b)
(b) This section does not abridge the duties or authority of a guardian appointed under ch.
880, 2003 stats., or ch.
54.
48.978(7)(c)
(c) Nothing in this section prohibits an individual from petitioning a court for the appointment of a guardian under ch.
54.
48.979
48.979
Delegation of power by parent. 48.979(1)(a)
(a) A parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, as provided in par.
(am), any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. A delegation of powers under this paragraph does not deprive the parent of any of his or her powers regarding the care and custody of the child.
48.979(1)(am)
(am) A delegation of powers to an agent under par.
(a) may remain in effect for no longer than one year, except that such a delegation may remain in effect for longer than one year if the delegation is to a relative of the child or the delegation is approved by the court as provided in sub.
(1m).
48.979(1)(b)
(b) If a delegation of powers to an agent under par.
(a) is facilitated by an entity, as defined in s.
48.685 (1) (b), that entity shall obtain the information specified in s.
48.685 (2) (b) with respect to the proposed agent and any nonclient resident, as defined in s.
48.685 (1) (bm), of the proposed agent. Subject to s.
48.685 (5), if that information indicates that the proposed agent may not be a contractor, as defined in s.
48.685 (1) (ar), of the entity or that a nonclient resident of the proposed agent may not be permitted to reside with the proposed agent for a reason specified in s.
48.685 (4m) (b) 1. to
5., the entity may not facilitate a delegation of powers to the proposed agent under par.
(a). The entity shall provide the department of health services with information about each person who is denied a delegation of powers or permission to reside under this paragraph for a reason specified in s.
48.685 (4m) (b) 1. to
5. 48.979(1)(bm)
(bm) A parent may not delegate under par.
(a) his or her powers regarding the care and custody of a child who is subject to the jurisdiction of the court under s.
48.13,
48.14,
938.12,
938.13, or
938.14 unless the court approves the delegation.
48.979(1)(c)
(c) A parent who has legal custody of a child may not place the child in a foster home, group home, shelter care facility, or inpatient treatment facility by means of a delegation of powers under par.
(a). Those placements may be made only by means of a court order or as provided in s.
48.63 or
51.13.
48.979(1)(d)
(d) A delegation of powers under par.
(a) does not prevent or supersede any of the following:
48.979(1)(d)1.
1. An agency, a sheriff, or a police department from receiving and investigating a report of suspected or threatened abuse or neglect of the child under s.
48.981.
48.979(1)(dm)
(dm) A delegation of powers under par.
(a) regarding the care and custody of an Indian child for any length of time is subject to the requirements of s.
48.028 (5) (a). A delegation of powers under par.
(a) regarding the care and custody of an Indian child for longer than one year is also subject to the requirements of s.
48.028 (3) (c),
(4) (a), and
(7) (a),
(c),
(e), and
(f).
48.979(1)(e)
(e) A parent who has delegated his or her powers regarding the care and custody of a child under par.
(a) may revoke that delegation at any time by executing a written revocation and notifying the agent in writing of the revocation. A written revocation invalidates the delegation of powers except with respect to acts already taken in reliance on the delegation of powers.
48.979(1m)(a)(a) A parent who wishes a delegation of powers under sub.
(1) (a) to an agent who is not a relative of the child to remain in effect for longer than one year, the agent to whom the parent wishes to delegate those powers, or an organization that is facilitating that delegation shall file a petition with the court requesting the court's approval of that delegation. The petition shall be entitled “In the interest of .... (child's name), a person under the age of 18." The petitioner shall attach a draft copy of the power of attorney delegating those powers to the petition and shall state in the petition all of the following:
48.979(1m)(a)1.
1. The name, address, and date of birth of the child who is the subject of the delegation of powers and whether the child has been adopted.
48.979(1m)(a)3.
3. The name and address of the person nominated as agent and the relationship of the agent to the child.
48.979(1m)(a)4.
4. Whether the parent wishes to delegate to the agent full parental power regarding the care and custody of the child or partial parental power regarding the care and custody of the child and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers.
48.979(1m)(a)5.
5. The proposed term of the delegation of powers, the reasons for the delegation of powers, and whether the parent proposes to provide any support to the agent during that term. If so, the petition shall indicate the amount of that support.
48.979(1m)(a)6.
6. Facts and circumstances showing that the delegation of powers would be in the best interests of the child and that the person nominated as agent is fit, willing, and able to exercise those powers.
48.979(1m)(a)7.
7. If the delegation of powers is being facilitated by an entity, as defined in s.
48.685 (1) (b), facts and circumstances showing that the entity has complied with sub.
(1) (b) and is permitted under sub.
(1) (b) to facilitate that delegation.
48.979(1m)(a)9.
9. Whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch.
822.
48.979(1m)(a)10.
10. Whether the child may be subject to s.
48.028 or
938.028 or the federal Indian Child Welfare Act,
25 USC 1901 to
1963, and, if the child may be subject to those sections or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.
48.979(1m)(b)
(b) Except as provided in par.
(bm), the court shall hold a hearing on a petition filed under par.
(a) within 45 days after the filing of the petition. The petitioner shall cause the petition and notice of the time and place of the hearing to be served at least 10 days before the time of the hearing on the child, if 12 years of age or over; the child's guardian ad litem and counsel, if any; the parents of the child; the person nominated as agent; any guardian, legal custodian, and physical custodian of the child; any organization that is facilitating the delegation of power; and, if the child is an Indian child, the Indian child's Indian custodian, if any, and tribe, if known. The petition and notice shall be served in person or by 1st class mail. The petition and notice are considered to be served by proof of personal service, by proof that the petition and notice were mailed to the last-known address of the recipient, or, if the recipient is an adult, by the written admission of service of the person served.
48.979(1m)(bm)
(bm) If the petitioner knows or has reason to know that the child is an Indian child, service under par.
(b) to the Indian child's parent, Indian custodian, and tribe shall be provided in the manner specified in s.
48.028 (4) (a). No hearing may be held under par.
(c) until at least 10 days after receipt of service by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of service by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.
48.979(1m)(c)
(c) At the hearing the court shall first determine whether any party wishes to contest the petition. If the petition is not contested, the court shall immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested or if an adjournment is requested, the court shall set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the initial hearing. At the fact-finding and dispositional hearing, any party may present evidence and argument relating to the allegations in the petition.
48.979(1m)(d)
(d) In determining the appropriate disposition of a petition filed under par.
(a), the best interests of the child shall be the prevailing factor to be considered by the court. The court shall also consider whether the person nominated as agent would be fit, willing, and able to exercise the powers to be delegated, the reasons for the delegation of powers, the amount of support that the parent is willing and able to provide to the agent during the term of the delegation of powers, and, if the child is an Indian child, the order of placement preference under s.
48.028 (7) (a) or, if applicable, s.
48.028 (7) (c), unless the court finds good cause, as described in s.
48.028 (7) (e), for departing from that order.
48.979(1m)(e)
(e) At the conclusion of the fact-finding and dispositional hearing, the court shall grant one of the following dispositions, unless the court adjourns the hearing under par.
(f):
48.979(1m)(e)1.
1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that approval of the proposed delegation of powers is not in the best interests of the child.
48.979(1m)(e)2.
2. A disposition approving the proposed delegation of powers, if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that the proposed delegation of powers is in the best interests of the child. The disposition may also designate an amount of support to be paid by the child's parents to the agent. If the court approves the proposed delegation of powers, the parent and the person nominated as agent may execute a power of attorney delegating those powers as approved by the court.
48.979(1m)(f)
(f) If at the conclusion of the fact-finding and dispositional hearing the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence, but that the person nominated as agent is not fit, willing, and able to serve as agent or that appointment of that person as agent would not be in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par.
(e) 1., adjourn the hearing for not more than 30 days and request the petitioner or any other party to nominate a different person as agent.
48.979(1m)(g)
(g) Any person who delegates his or her powers regarding the care and custody of a child to a person who is not a relative of the child for longer than one year without first obtaining the approval of the court as provided in this subsection is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
48.979(2)
(2) A power of attorney complies with sub.
(1) (a) if the power of attorney substantially conforms to the following form:
power of attorney
delegating parental power
Authorized by s.
48.979, Wis. Stats.
NAME(S) OF CHILD(REN)
This power of attorney is for the purpose of providing for the care and custody of:
Name, address, and date of birth of child ....
