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).
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
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
UNIFORM GUARDIANSHIP ACTS
In this subchapter:
“Administration" means any proceeding relating to a decedent's estate whether testate or intestate.
“Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.
“Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under the decedent's will or under the statutes of intestate succession.
History: 2005 a. 387
United States uniform veterans guardianship act. 54.852(1)(1)
As used in this section:
“Administrator" means the secretary of the U.S. department of veterans affairs or his or her successor.
“Benefits" means all moneys paid or payable by the United States through the U.S. department of veterans affairs.
“Estate" means income on hand and assets acquired partially or wholly with “income."
Notwithstanding s. 54.01 (10)
, “guardian" means any fiduciary for the person or estate of a ward.
“Income" means moneys received from the U.S. department of veterans affairs and revenue or profit from any property wholly or partially acquired therewith.
“U.S. department of veterans affairs" means the U.S. department of veterans affairs, its predecessors or successors.
Notwithstanding s. 54.01 (37)
, “ward" means an individual who receives benefits from the U.S. department of veterans affairs.
(2) Administrator as party in interest. 54.852(2)(a)(a)
The administrator shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any present or former ward whose estate includes assets derived in whole or in part from benefits heretofore or hereafter paid by the U.S. department of veterans affairs.
Not less than 15 days prior to a hearing in a suit or proceeding described in par. (a)
, notice in writing of the time and place of the hearing shall be given by mail, unless notice is waived in writing, to the office of the U.S. department of veterans affairs having jurisdiction over the area in which the suit or proceeding is pending.
Whenever, pursuant to any law of the United States or regulation of the U.S. department of veterans affairs, it is necessary, prior to payment of benefits, that a guardian be appointed, the appointment may be made in the manner hereinafter provided.
(4) Limitation on number of wards.
No person or corporate entity other than a county having a population of 100,000 or more or a bank or trust company shall be guardian of more than 5 wards at one time, unless all the wards are members of one family. A county shall act only for patients in its county hospital or mental hospital and for residents of its county home or infirmary, and shall serve without fee. Upon presentation of a petition by an attorney of the U.S. department of veterans affairs or other interested person, alleging that a guardian is acting in a fiduciary capacity for more than 5 wards and requesting the guardian's discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting from the guardian and shall discharge the guardian from guardianship in excess of 5 and appoint a successor.
A petition for the appointment of a guardian may be filed by any relative or friend of the ward or by any person who is authorized by law to file such a petition. If there is no person so authorized or if the person so authorized refuses or fails to file such a petition within 30 days after mailing of notice by the U.S. department of veterans affairs to the last-known address of the person, if any, indicating the necessity for the same, a petition for appointment may be filed by any resident of the state.
The petition for appointment shall set forth the name, age, place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that the ward is entitled to receive benefits payable by or through the U.S. department of veterans affairs and shall set forth the amount of moneys then due and the amount of probable future payments.
The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward and the name, age, relationship, if any, occupation and address of the proposed guardian and if the nominee is a natural person, the number of wards for whom the nominee is presently acting as guardian. Notwithstanding any law as to priority of persons entitled to appointment, or the nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian, if the court determines it is for the best interest of the ward.
In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent by the U.S. department of veterans affairs on examination in accordance with the laws and regulations governing the U.S. department of veterans affairs.
(6) Evidence of necessity for guardian of infant.
Where a petition is filed for the appointment of a guardian for a minor, a certificate of the administrator or the administrator's authorized representative, setting forth the age of such minor as shown by the records of the U.S. department of veterans affairs and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the U.S. department of veterans affairs shall be prima facie evidence of the necessity for such appointment.
(7) Evidence of necessity for guardian for incompetent.
Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the administrator or the administrator's duly authorized representative, that such person has been rated incompetent by the U.S. department of veterans affairs on examination in accordance with the laws and regulations governing such U.S. department of veterans affairs and that the appointment of a guardian is a condition precedent to the payment of any moneys due such ward by the U.S. department of veterans affairs, shall be prima facie evidence of the necessity for such appointment.
Upon the filing of a petition for the appointment of a guardian under this section, notice shall be given to the ward, to such other persons, and in such manner as is provided by statute, and also to the U.S. department of veterans affairs as provided by this section.
Upon the appointment of a guardian, the guardian shall execute and file a bond to be approved by the court in an amount not less than the estimated value of the personal estate and anticipated income of the ward during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship law. The court may from time to time require the guardian to file an additional bond.
Where a bond is tendered by a guardian with personal sureties, there shall be at least 2 such sureties and they shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and shall state that each is worth the sum named in the bond as the penalty thereof over and above all the surety's debts and liabilities and the aggregate of other bonds on which the surety is principal or surety and exclusive of property exempt from execution. The court may require additional security or may require a corporate surety bond, the premium thereon to be paid from the ward's estate.
(10) Petitions and accounts, notices and hearings. 54.852(10)(a)(a)
Every guardian shall file his or her accounts as required by this chapter and shall be excused from filing accounts in the case as provided by s. 54.66 (2)
The guardian, at the time of filing any account, shall exhibit all securities or investments held by the guardian to an officer of the bank or other depository wherein said securities or investments are held for safekeeping or to an authorized representative of the corporation which is surety on the guardian's bond, or to the judge or clerk of a court of record, or, upon request of the guardian or other interested party, to any other reputable person designated by the court, who shall certify in writing that he or she has examined the securities or investments and identified them with those described in the account, and shall note any omissions or discrepancies. If the depository is the guardian, the certifying officer shall not be the officer verifying the account. The guardian may exhibit the securities or investments to the judge of the court, who shall endorse on the account and copy thereof a certificate that the securities or investments shown therein as held by the guardian were each in fact exhibited to the judge and that those exhibited to the judge were the same as those shown in the account, and noting any omission or discrepancy. That certificate and the certificate of an official of the bank in which are deposited any funds for which the guardian is accountable, showing the amount on deposit, shall be prepared and signed in duplicate and one of each be filed by the guardian with the guardian's account.
At the time of filing in the court any account, a certified copy thereof shall be sent by the guardian to the office of the U.S. department of veterans affairs having jurisdiction over the area in which the court is located. A signed duplicate or a certified copy of any petition, motion or other pleading pertaining to an account, or to any matter other than an account, and which is filed in the guardianship proceedings or in any proceeding for the purpose of removing the disability of minority or mental incapacity, shall be furnished by the person filing the same to the proper office of the U.S. department of veterans affairs. Unless waived in writing, written notice of the time and place of any hearing shall be given to the office of U.S. department of veterans affairs concerned and to the guardian and any others entitled to notice not less than 15 days prior to the date fixed for the hearing. The notice may be given by mail in which event it shall be deposited in the mails not less than 15 days prior to said date. The court, or clerk thereof, shall mail to said office of the U.S. department of veterans affairs a copy of each order entered in any guardianship proceeding wherein the administrator is an interested party.
If the guardian is accountable for property derived from sources other than the U.S. department of veterans affairs, the guardian shall be accountable as required under the applicable law of this state pertaining to the property of minors or persons of unsound mind who are not beneficiaries of the U.S. department of veterans affairs, and as to such other property shall be entitled to the compensation provided by such law. The account for other property may be combined with the account filed in accordance with this section.
(11) Penalty for failure to account.
If any guardian shall fail to file with the court any account as required by this section, or by an order of the court, when any account is due or within 30 days after citation issues as provided by law, or shall fail to furnish the U.S. department of veterans affairs a true copy of any account, petition or pleading as required by this section, such failure may in the discretion of the court be ground for removal.
(12) Compensation of guardians.
Guardians shall be compensated as provided in s. 54.72
Every guardian shall invest the surplus funds of the ward's estate in such securities or property as authorized under the laws of this state but only upon prior order of the court; except that the funds may be invested, without prior court authorization, in direct unconditional interest-bearing obligations of the United States and in obligations the interest and principal of which are unconditionally guaranteed by the United States. A signed duplicate or certified copy of the petition for authority to invest shall be furnished the proper office of the U.S. department of veterans affairs, and notice of hearing thereon shall be given said office as provided in the case of hearing on a guardian's account.
(14) Maintenance and support.
A guardian shall not apply any portion of the income or the estate for the support or maintenance of any person other than the ward, the spouse and the minor children of the ward, except upon petition to and prior order of the court after a hearing. A signed duplicate or certified copy of said petition shall be furnished the proper office of the U.S. department of veterans affairs and notice of hearing thereon shall be given said office as provided in the case of hearing on a guardian's account or other pleading.
The court may authorize the purchase of the entire fee simple title to real estate in this state in which the guardian has no interest, but only as a home for the ward, or to protect the ward's interest, or, if the ward is not a minor as a home for the ward's dependent family. Such purchase of real estate shall not be made except upon the entry of an order of the court after hearing upon verified petition. A copy of the petition shall be furnished the proper office of the U.S. department of veterans affairs and notice of hearing thereon shall be given said office as provided in the case of hearing on a guardian's account.
Before authorizing such investment the court shall require written evidence of value and of title and of the advisability of acquiring such real estate. Title shall be taken in the ward's name. This subsection does not limit the right of the guardian on behalf of the guardian's ward to bid and to become the purchaser of real estate at a sale thereof pursuant to decree of foreclosure of lien held by the ward, or at a trustee's sale, to protect the ward's right in the property so foreclosed or sold; nor does it limit the right of the guardian, if such be necessary to protect the ward's interest and upon prior order of the court in which the guardianship is pending, to agree with cotenants of the ward for a partition in kind, or to purchase from cotenants the entire undivided interests held by them, or to bid and purchase the same at a sale under a partition decree, or to compromise adverse claims of title to the ward's realty.
(16) Copies of public records to be furnished.
When a copy of any public record is required by the U.S. department of veterans affairs to be used in determining the eligibility of any person to participate in benefits made available by the U.S. department of veterans affairs, the official custodian of such public record shall without charge provide the applicant for such benefits or any person acting on the applicant's behalf or the authorized representative of the U.S. department of veterans affairs with a certified copy of such record.
(17) Discharge of guardian and release of sureties.
In addition to any other provisions of law relating to judicial restoration and discharge of guardian, a certificate by the U.S. department of veterans affairs showing that a minor ward has attained majority, or that an incompetent ward has been rated competent by the U.S. department of veterans affairs upon examination in accordance with law shall be prima facie evidence that the ward has attained majority, or has recovered competency. Upon hearing after notice as provided by this section and the determination by the court that the ward has attained majority or has recovered competency, an order shall be entered to that effect, and the guardian shall file a final account. Upon hearing after notice to the former ward and to the U.S. department of veterans affairs as in case of other accounts, upon approval of the final account, and upon delivery to the ward of the assets due from the guardian, the guardian shall be discharged and the sureties released.
(18) Liberal construction.
This section shall be so construed to make uniform the law of those states which enact it.
(19) Short title.
This section may be cited as the “Uniform Veterans Guardianship Act."
(20) Modification of other statutes.
Except where inconsistent with this section, the statutes relating to guardian and ward and the judicial practice relating thereto, including the right to trial by jury and the right of appeal, shall be applicable to beneficiaries and their estates.
(21) Application of section.
The provisions of this section relating to surety bonds and the administration of estates of wards shall apply to all “income" and “estate" as defined in sub. (1)
whether the guardian shall have been appointed under this section or under any other law of this state, special or general, prior or subsequent to June 5, 1947.
“Adult" means an individual who has attained the age of 21 years.
“Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for that person's account or for the account of others.
Notwithstanding s. 54.01 (3)
, “conservator" means a person appointed or qualified by a court to act as general, limited or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.
“Custodial property" means any interest in property transferred to a custodian under ss. 54.854
and the income from and proceeds of that interest in property.
“Custodian" means a person so designated under s. 54.870
or a successor or substitute custodian designated under s. 54.888
“Financial institution" means a bank, trust company, savings bank, savings and loan association or other savings institution, or credit union, chartered and supervised under state or federal law.
“Legal representative" means an individual's personal representative or conservator.
“Member of the minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle or aunt, whether of the whole or half blood or by adoption.
Notwithstanding s. 54.01 (20)
, “minor" means an individual who has not attained the age of 21 years.
Notwithstanding s. 54.01 (23)
, “personal representative" means an executor, administrator, successor personal representative or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
“Qualified minor's trust" means any trust, including a trust created by the custodian, that satisfies the requirements of section 2503
(c) of the Internal Revenue Code and the regulations implementing that section.
“State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession subject to the legislative authority of the United States.
“Transfer" means a transaction that creates custodial property under s. 54.870
“Trust company" means a financial institution, corporation or other legal entity, authorized to exercise general trust powers.
History: 1987 a. 191
; 1991 a. 221
; 2005 a. 216
; 2005 a. 387
; Stats. 2005 s. 54.854.
Scope and jurisdiction. 54.856(1)
apply to a transfer that refers to ss. 54.854
in the designation under s. 54.870 (1)
by which the transfer is made if at the time of the transfer the transferor, the minor or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to ss. 54.854
despite a subsequent change in residence of a transferor, the minor or the custodian, or the removal of custodial property from this state.
A person designated as custodian under s. 54.870
is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
A transfer that purports to be made and which is valid under the uniform transfers to minors act, the uniform gifts to minors act or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer the transferor, the minor or the custodian is a resident of the designated state or the custodial property is located in the designated state.
History: 1987 a. 191
; 2005 a. 387
; Stats. 2005 s. 54.856.
Nomination of custodian. 54.858(1)
A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian, followed in substance by the words: “as custodian for .... (name of minor) under the Wisconsin Uniform Transfers to Minors Act". The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment or a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer or other obligor of the contractual rights.
A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under s. 54.870 (1)
The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under s. 54.870
. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property under s. 54.870
History: 1987 a. 191
; 2005 a. 387
; Stats. 2005 s. 54.858.
Transfer by gift or exercise of power of appointment.
A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor under s. 54.870
History: 1987 a. 191
; 2005 a. 387
; Stats. 2005 s. 54.860.
Transfer authorized by will or trust. 54.862(1)
A personal representative or trustee may make an irrevocable transfer under s. 54.870
to a custodian for the benefit of a minor as authorized in the governing will or trust.
If the testator or settlor has nominated a custodian under s. 54.858
to receive the custodial property, the transfer must be made to that person.
If the testator or settlor has not nominated a custodian under s. 54.858
, or all persons so nominated as custodian die before the transfer or are unable, decline or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under s. 54.870 (1)