54.25(2)(c)1.d.
d. The right to apply for an operator's license, a license issued under ch.
29, a license, certification, or permit issued under s.
89.06,
89.072, or
89.073, or a credential, as defined in s.
440.01 (2) (a), if the court finds that the individual is incapable of understanding the nature and risks of the licensed or credentialed activity, to the extent that engaging in the activity would pose a substantial risk of physical harm to the individual or others. A failure to find that an individual is incapable of applying for a license or credential is not a finding that the individual qualifies for the license or credential under applicable laws and rules.
54.25(2)(c)1.e.
e. The right to consent to sterilization, if the court finds that the individual is incapable of understanding the nature, risk, and benefits of sterilization, after the nature, risk, and benefits have been presented in a form that the individual is most likely to understand.
54.25(2)(c)1.f.
f. The right to consent to organ, tissue, or bone marrow donation.
54.25(2)(c)1.g.
g. The right to register to vote or to vote in an election, if the court finds that the individual is incapable of understanding the objective of the elective process. Also, in accordance with s.
6.03 (3), any elector of a municipality may petition the circuit court for a determination that an individual residing in the municipality is incapable of understanding the objective of the elective process and thereby ineligible to register to vote or to vote in an election. This determination shall be made by the court in accordance with the procedures specified in this paragraph. If a petition is filed under this subd.
1. g., the finding of the court shall be limited to a determination as to voting eligibility. The appointment of a guardian is not required for an individual whose sole limitation is ineligibility to vote. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s.
6.48,
6.92,
6.925,
6.93, or
7.52 (5) with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s.
54.64 (2) and any subsequent determination of the court shall be likewise communicated by the clerk of court.
54.25(2)(c)2.
2. Any finding under subd.
1. that an individual lacks evaluative capacity to exercise a right must be based on clear and convincing evidence. In the absence of such a finding, the right is retained by the individual.
54.25(2)(c)3.
3. If an individual is declared not competent to exercise a right under subd.
1. or
4., a guardian may not exercise the right or provide consent for exercise of the right on behalf of the individual. If the court finds with respect to a right listed under subd.
1. a.,
d.,
e., or
f. that the individual is competent to exercise the right under some but not all circumstances, the court may order that the individual retains the right to exercise the right only with consent of the guardian of the person.
54.25(2)(c)4.
4. Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process. If the petition for a declaration of incompetence to vote is not part of a petition for guardianship, the same procedures shall apply as would apply for a petition for guardianship. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s.
6.48,
6.92,
6.925, or
6.93 with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s.
54.64 (2) (a) and
(c) and any subsequent determination of the court shall be likewise communicated by the clerk of court.
54.25(2)(d)
(d)
Guardian authority to exercise certain powers. 54.25(2)(d)1.
1. A court may authorize a guardian of the person to exercise all or part of any of the powers specified in subd.
2. only if it finds, by clear and convincing evidence, that the individual lacks evaluative capacity to exercise the power. The court shall authorize the guardian of the person to exercise only those powers that are necessary to provide for the individual's personal needs, safety, and rights and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention. The court may limit the authority of the guardian of the person with respect to any power to allow the individual to retain power to make decisions about which the individual is able effectively to receive and evaluate information and communicate decisions. When a court appoints a guardian for a minor, the guardian shall be granted care, custody, and control of the person of the minor.
54.25(2)(d)2.ab.
ab. Except as provided under subd.
2. b.,
c., and
d., and except for consent to psychiatric treatment and medication under ch.
51, and subject to any limitation under s.
54.46 (2) (b), the power to give an informed consent to the voluntary receipt by the guardian's ward of a medical examination, medication, including any appropriate psychotropic medication, and medical treatment that is in the ward's best interest, if the guardian has first made a good-faith attempt to discuss with the ward the voluntary receipt of the examination, medication, or treatment and if the ward does not protest. For purposes of this subd.
2. ab., “protest" means, with respect to the voluntary receipt of a medical examination, medication, including appropriate psychotropic medication, or medical treatment, make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of the medical examination, medication, or medical treatment. “Protest" does not mean a discernible negative response to a proposed method of administration of the medical examination, medication, or medical treatment. In determining whether a medical examination, medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication, or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.
54.25(2)(d)2.ac.
ac. Except as provided under subd.
2. b.,
c., and
d., and except for consent to psychiatric treatment and medication under ch.
51, and subject to any limitation under s.
54.46 (2) (b), the power to give informed consent, if in the ward's best interests, to the involuntary administration of a medical examination, medication other than psychotropic medication, and medical treatment that is in the ward's best interest. A guardian may consent to the involuntary administration of psychotropic medication only under a court order under s.
55.14. In determining whether involuntary administration of a medical examination, medication other than psychotropic medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication, or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.
54.25(2)(d)2.b.
b. Unless it can be shown by clear and convincing evidence that the ward would never have consented to research participation, the power to authorize the ward's participation in an accredited or certified research project if the research might help the ward; or if the research might not help the ward but might help others, and the research involves no more than minimal risk of harm to the ward.
54.25(2)(d)2.c.
c. The power to authorize the ward's participation in research that might not help the ward but might help others even if the research involves greater than minimal risk of harm to the ward if the guardian can establish by clear and convincing evidence that the ward would have elected to participate in such research; and the proposed research was reviewed and approved by the research and human rights committee of the institution conducting the research. The committee shall have determined that the research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the federal regulations for research involving human subjects for federally supported projects.
54.25(2)(d)2.d.
d. Unless it can be shown by clear and convincing evidence that the ward would never have consented to any experimental treatment, the power to consent to experimental treatment if the court finds that the ward's mental or physical status presents a life-threatening condition; the proposed experimental treatment may be a life saving remedy; all other reasonable traditional alternatives have been exhausted; 2 examining physicians have recommended the treatment; and, in the court's judgment, the proposed experimental treatment is in the ward's best interests.
54.25(2)(d)2.e.
e. The power to give informed consent to receipt by the ward of social and supported living services.
54.25(2)(d)2.f.
f. The power to give informed consent to release of confidential records other than court, treatment, and patient health care records and to redisclosure as appropriate.
54.25(2)(d)2.g.
g. The power to make decisions related to mobility and travel.
54.25(2)(d)2.i.
i. The power to choose providers of medical, social, and supported living services.
54.25(2)(d)2.j.
j. The power to make decisions regarding educational and vocational placement and support services or employment.
54.25(2)(d)2.k.
k. The power to make decisions regarding initiating a petition for the termination of marriage.
54.25(2)(d)2.m.
m. The power to act in all proceedings as an advocate of the ward, except the power to enter into a contract that binds the ward or the ward's property or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the estate.
54.25(2)(d)2.o.
o. The power to have custody of the ward, if an adult, and the power to have care, custody, and control of the ward, if a minor.
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
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 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 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 ch.
53 and, if the petition is granted, to the accepted guardianship. Personal jurisdiction is subject to ch.
53.
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(4)
(4) Conflicts of jurisdiction or venue. Before making a determination of jurisdiction or venue under this section, the circuit court shall first make any applicable determination of jurisdiction or venue under ch.
53. If any determination of jurisdiction or venue made under this section conflicts with a determination made under ch.
53, the court shall apply the determination made under ch.
53.
54.30 History
History: 2005 a. 387 ss.
100,
306,
313 to
316;
2017 a. 187.
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)
Subject to ch.
53, 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.
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(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:
