Chapter 54

54.66 History History: 2005 a. 387 ss. 100, 430, 447, 448.

54.68 54.68 Review of conduct of guardian.

54.68(1) (1) Continuing jurisdiction of court. The court that appointed the guardian or that granted a petition for acceptance and receipt of a foreign guardianship has continuing jurisdiction over the guardian. Within a reasonable period of time after granting a petition for receipt and acceptance of a foreign guardianship under s. 54.46 (1r), the court shall review the provisions of the guardianship and, as part of its review, shall inform the guardian and ward of services that may be available to the ward.

54.68(2) (2) Cause for court action against a guardian. Any of the following, if committed by a guardian with respect to a ward or the ward’s income or assets, constitutes cause for a remedy of the court under sub. (4):

54.68(2)(a) (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.

54.68(2)(b) (b) Committing fraud, waste, or mismanagement.

54.68(2)(c) (c) Abusing or neglecting the ward or knowingly permitting others to do so.

54.68(2)(cm) (cm) Knowingly isolating a ward from the ward’s family members or violating a court order under s. 50.085 (2).

54.68(2)(d) (d) Engaging in self-dealing.

54.68(2)(e) (e) Failing to provide adequately for the personal needs of the ward from the ward’s available assets and income, including any available public benefits.

54.68(2)(f) (f) Failing to exercise due diligence and reasonable care in assuring that the ward’s personal needs are being met in the least restrictive environment consistent with the ward’s needs and incapacities.

54.68(2)(g) (g) Failing to act in the best interests of the ward.

54.68(2)(h) (h) Failing to disclose conviction for a crime that would have prevented appointment of the person as guardian.

54.68(2)(i) (i) Failing to disclose that the guardian is listed under s. 146.40 (4g) (a) 2.

54.68(2)(j) (j) Other than as provided in pars. (a) to (i), failing to perform any duties of a guardian or performing acts prohibited to a guardian as specified in ss. 54.18, 54.19, 54.20, 54.22, 54.25, and 54.62.

54.68(3) (3) Procedure. Upon the filing of a petition for review of the conduct of a guardian, the court shall hold a hearing in not less than 10, nor more than 60, days and shall order that the petitioner provide notice of the hearing to the ward, the guardian, and any other persons as determined by the court. The court may authorize use by the petitioner of any of the methods of discovery specified in ch. 804 in support of the petition to review conduct of the guardian.

54.68(4) (4) Remedies of the court. If petitioned by any party or on the court’s own motion and after finding cause as specified in sub. (2), a court may do any of the following:

54.68(4)(a) (a) Order the guardian to file an inventory or other report or account required of the guardian.

54.68(4)(b) (b) Require the guardian to reimburse the ward or, if deceased, the ward’s estate for losses incurred as the result of the guardian’s breach of a duty to the ward.

54.68(4)(c) (c) Impose a forfeiture of up to $10,000 on the guardian, or deny compensation for the guardian or both.

54.68(4)(d) (d) Remove the guardian.

54.68(4)(e) (e) Enter any other order that may be necessary or appropriate to compel the guardian to act in the best interests of the ward or to otherwise carry out the guardian’s duties.

54.68(5) (5) Removal of paid guardian. The court may remove a paid guardian if changed circumstances indicate that a previously unavailable volunteer guardian is available to serve and that the change would be in the best interests of the ward.

54.68(6) (6) Fees and costs in proceedings. In any proceeding under sub. (2) or (5), all of the following apply:

54.68(6)(a) (a) The court may require the guardian to pay personally any costs of the proceeding, including costs of service and attorney fees.

54.68(6)(b) (b) Notwithstanding a finding of incompetence, a ward who is petitioning the court under sub. (2) may retain legal counsel, the selection of whom is subject to court approval, and contract for the payment of fees, regardless of whether or not the guardian consents or whether or not the court finds cause under sub. (2).

54.68 History History: 2005 a. 387; 2015 a. 343.

54.72 54.72 Guardian compensation and reimbursement. A guardian of the person or a guardian of the estate is entitled to compensation and to reimbursement for expenses as follows:

54.72(1) (1) Compensation.

54.72(1)(a) (a) Subject to the court’s approval, as determined under par. (b), a guardian shall receive reasonable compensation for the guardian’s services.

54.72(1)(b) (b) The court shall use all of the following factors in deciding whether compensation for a guardian is just and reasonable:

54.72(1)(b)1. 1. The reasonableness of the services rendered.

54.72(1)(b)2. 2. The fair market value of the services rendered.

54.72(1)(b)3. 3. Any conflict of interest of the guardian.

54.72(1)(b)4. 4. The availability of another to provide the services.

54.72(1)(b)5. 5. The value and nature of the ward’s assets and income, including the sources of the ward’s income.

54.72(1)(b)6. 6. Whether the ward’s basic needs are being met.

54.72(1)(b)7. 7. The hourly or other rate proposed by the guardian for the services.

54.72(1)(c) (c) The amount of the compensation may be determined on an hourly basis, as a monthly stipend, or on any other basis that the court determines is reasonable under the circumstances. The court may establish the amount or basis for computing the guardian’s compensation at the time of the guardian’s initial appointment.

54.72(2) (2) Reimbursement of expenses. The guardian shall be reimbursed for the amount of the guardian’s reasonable expenses incurred in the execution of the guardian’s duties, including necessary compensation paid to an attorney, an accountant, a broker, and other agents or service providers.

54.72(3) (3) When court approval required. A court must approve compensation and reimbursement of expenses before payment to the guardian is made, but court approval need not be obtained before charges are incurred.

54.72 History History: 2005 a. 387.

54.72 Annotation When a temporary guardian committed a clear breach of trust, the trial court had sufficient basis to award the temporary guardian no compensation. Yamat v. Verma L.B., 214 Wis. 2d 207, 571 N.W.2d 860 (Ct. App. 1997), 96-2313.

54.72 Note NOTE: The above annotation relates to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to this chapter by 2005 Wis. Act 387.

54.74 54.74 Compensation of guardian ad litem. Unless the court otherwise directs or unless a petition to the court under this chapter is dismissed, the court shall order reasonable compensation to be paid to a guardian ad litem appointed under s. 54.40 (1) from the ward’s income or assets, if sufficient, or, if insufficient, by the county of venue. If a petition to the court under this chapter is dismissed, the court shall order the petitioner to pay the compensation of the guardian ad litem. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to a private attorney under s. 977.08 (4m) (b). The guardian ad litem shall receive compensation for performing all duties required under s. 54.40 (4) and for any other acts that are approved by the court and are reasonably necessary to promote the ward’s best interests.

54.74 History History: 2005 a. 387 s. 498.

54.74 Annotation The court’s power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).

54.74 Note NOTE: The above annotation relates to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to this chapter by 2005 Wis. Act 387.

54.75 54.75 Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 51.30 or 55.22 or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.

54.75 History History: 2005 a. 264 s. 211; 2005 a. 387 s. 471; 2007 a. 45.

54.75 Annotation Section 880.33 (6) requires the closing only of documents filed with the register in probate with respect to ch. 880 proceedings. 67 Atty. Gen. 130.

54.75 Note NOTE: The above annotation relates to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to this chapter by 2005 Wis. Act 387.

54.75 Annotation Notice of Voting Eligibility forms used to make the report required under s. 54.25 (2) (c) 1. g. regarding restrictions to an individual’s voting rights as a result of a court’s finding of incompetency in a guardianship proceeding are court records pertinent to the finding of incompetency and therefore are barred from disclosure under this section and the public records law. Wisconsin Voter Alliance v. Reynolds, 2023 WI App 66, 410 Wis. 2d 335, 1 N.W.3d 748, 22-1749.

subch. VI of ch. 54 SUBCHAPTER VI

VOLUNTARY PROCEEDINGS;
CONSERVATORS

54.76 54.76 Conservator; appointment; duties and powers; termination.

54.76(1) (1) Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her assets or income may voluntarily apply to the circuit court of the county of his or her residence for appointment of a conservator of the estate. Upon receipt of the application, the court shall fix a time and place for hearing the application and may direct to whom, including presumptive heirs, and in what manner notice of the hearing shall be given to a potential recipient of the notice, unless the potential recipient has waived receipt. The fee prescribed in s. 814.66 (1) (b) shall be paid at the time of the filing of the inventory or other documents setting forth the value of the assets and income.

54.76(2) (2) At the hearing for appointment of a conservator, the applicant shall be personally examined by the court and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated and any proposed standby conservator are suitable, the court may appoint the nominee as conservator and, if applicable, designate the proposed standby conservator as standby conservator and issue letters of conservatorship to the nominee after he or she files a bond in the amount fixed by the court.

54.76(3) (3) Except as provided in sub. (3g), a conservator has all the powers and duties of a guardian of the estate. An individual whose income and assets are under conservatorship may make gifts of his or her income and assets, subject to approval of the conservator.

54.76(3g) (3g) If the individual has executed a durable power of attorney before the proceedings under this section, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the individual’s conservator may not make decisions for the individual that may be made by the agent, unless the conservator is the agent.

54.76(3m) (3m) A person may at any time bring a petition for the appointment of a standby conservator for an individual for whom a conservator has been appointed under sub. (2).

54.76(3n) (3n) At any hearing conducted under this section the court may designate one or more standby conservators for an individual for whom a conservator has been appointed under sub. (2) whose appointment shall become effective immediately upon the death, unwillingness, unavailability, or inability to act, resignation, or court’s removal of the initially appointed conservator or during a period, as determined by the initially appointed conservator or the court, when the initially appointed conservator is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby conservator shall be the same as those of the initially appointed conservator. The standby conservator shall receive a copy of the court order establishing or modifying the initial conservatorship and the order designating the standby conservator. Upon assuming office, the standby conservator shall so notify the court. Upon notification, the court shall designate this conservator as permanent or shall specify the time period for a limited standby conservatorship.

54.76(4) (4) Any person, including an individual whose income and assets are under conservatorship, may apply to the court at any time for termination of the conservatorship. Upon receipt of the application, the court shall fix a time and place for hearing and may direct that 10 days’ notice by mail be given to the individual’s guardian of the person or agent under a power of attorney for health care, the conservator, any standby conservator, and the presumptive adult heirs of the individual whose income and assets are under conservatorship. A potential recipient of the notice may waive its receipt. At the hearing, the court shall, unless it is clearly shown that the individual whose income and assets are under conservatorship is incompetent, remove the conservator and order the income and assets restored to the individual. If, however, the court determines at the hearing that the individual whose income and assets are administered by a conservator is incapable of handling his or her income and assets, the court shall order the conservatorship continued, or, if the applicant so desires and a nominee is suitable, appoint a successor conservator. A conservatorship may only be terminated under a hearing under this subsection.

54.76(5) (5) Appointment of a conservator does not constitute evidence of the competency or incompetency of the individual whose income and assets are being administered.

54.76(6) (6) The court that appointed the conservator shall have continuing jurisdiction over the conservator. Any of the following, if committed by a conservator with respect to a conservatee or the conservatee’s income or assets, constitutes cause for removal of the conservator under sub. (7) (a) 5.:

54.76(6)(a) (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.

54.76(6)(b) (b) Committing fraud, waste, or mismanagement.

54.76(6)(c) (c) Abusing or neglecting the conservatee or knowingly permitting others to do so.

54.76(6)(d) (d) Engaging in self-dealing.

54.76(6)(e) (e) Failing to provide adequately for the personal needs of the conservatee from the available income and assets and any available public benefits.

54.76(6)(f) (f) Failing to act in the best interests of the conservatee.

54.76(6)(g) (g) Failing to disclose conviction for a crime that would have prevented appointment of the person as conservator.

54.76(6)(h) (h) Failing to disclose that the conservator is listed under s. 146.40 (4g) (a) 2.

54.76(7) (7) 

54.76(7)(a) (a) The powers of a conservator may not be terminated without a hearing and may not be terminated unless any of the following occurs:

54.76(7)(a)1. 1. The court removes the conservator on the court’s own motion or under sub. (4).

54.76(7)(a)2. 2. The court appoints a guardian for the individual whose income and assets are conserved.

54.76(7)(a)3. 3. The individual whose income and assets are conserved dies.

54.76(7)(a)4. 4. The conservator or individual whose income and assets are conserved changes residence to another state.

54.76(7)(a)5. 5. The court finds cause, as specified in sub. (6), for removal of the conservator.

54.76(7)(b) (b) If anyone objects to termination of the conservatorship and alleges that the individual whose income and assets are conserved is appropriate for appointment of a guardian, the court may stay the hearing under par. (a) for 14 days to permit any interested person to file a petition for guardianship. If no petition is filed, the court may terminate the conservatorship and may appoint a guardian ad litem for the individual.

54.76(8) (8) If a court terminates a conservatorship or a conservator resigns, is removed, or dies, the conservator or the conservator’s personal representative or special administrator shall promptly render a final account of the former conservatee’s income and assets to the court and to the former conservatee, any guardian of the former conservatee, or any deceased conservatee’s personal representative or special administrator, as appropriate. If the conservator dies and the conservator and the deceased conservatee’s personal representative or special administrator are the same person, the deceased conservatee’s personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the conservatee’s estate.

54.76(9) (9) 

54.76(9)(a) (a) If a conservator resigns, is removed, or dies, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor conservator. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor conservator be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a conservator.

54.76(9)(b) (b) If the appointment under par. (a) is made without hearing, the successor conservator shall provide notice to the individual for whom a conservator has been appointed and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor conservator. The notice shall be served personally or by mail not later than 10 days after the appointment.

54.76 History History: 2005 a. 387 ss. 100, 452 to 456; Stats. 2005 s. 54.76.

54.76 Annotation A gift by a competent conservatee without the approval of the conservator was void. Zobel v. Fenendael, 127 Wis. 2d 382, 379 N.W.2d 887 (Ct. App. 1985).

54.76 Annotation A circuit court must hold some form of hearing on the record, either a full due process hearing or a summary hearing, to continue a protective placement. The circuit court must also make findings based on the factors enumerated in s. 55.06 (2) [now s. 55.08 (1)] in support of the need for continuation. County of Dunn v. Goldie H., 2001 WI 102, 245 Wis. 2d 538, 629 N.W.2d 189, 00-1137.

54.76 Note NOTE: The above annotations relate to guardianships under former ch. 880, 2003 stats., prior to the revision of and renumbering of that chapter to this chapter by 2005 Wis. Act 387.