Distribution on termination.
Methods and forms for creating custodial trusts.
Uniformity of application and construction.
Ch. 54 Cross-reference
See s. 46.011
for definitions applicable to chs. 46
, and 58
In subchs. I
“Activities of daily living" means activities relating to the performance of self care, work, and leisure activities, including dressing, eating, grooming, mobility, and object manipulation.
“Agency" means any public or private board, corporation, or association, including a county department under s. 51.42
, that is concerned with the specific needs and problems of individuals with developmental disability, mental illness, alcoholism, or drug dependency and of aging individuals.
“Conservator" means a person who is appointed by a court at an individual's request under s. 54.76 (2)
to manage the estate of the individual.
“Court" means the circuit court or judge assigned to exercise probate jurisdiction or the assignee of the judge under s. 757.68 (4m)
or 851.73 (1) (g)
who is assigned relevant authority.
“Decedent" means the deceased individual whose estate is subject to administration.
“Degenerative brain disorder" means the loss or dysfunction of an individual's brain cells to the extent that he or she is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.
“Developmental disability" means a disability attributable to intellectual disability, cerebral palsy, epilepsy, autism, or another neurological condition closely related to an intellectual disability or requiring treatment similar to that required for individuals with an intellectual disability, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.
“Foreign court" means a court of a foreign state having competent jurisdiction of a foreign ward.
“Foreign guardian" means a guardian appointed by a foreign court for a foreign ward.
“Foreign guardianship" means a guardianship issued by a foreign court.
“Foreign state" means a state other than this state.
“Foreign ward" means an individual who has been found by a foreign court to be incompetent or a spendthrift and who is subject to a guardianship order or related order in a foreign state.
“Guardian" means a person appointed by a court under s. 54.10
to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of an individual found incompetent or a spendthrift or to manage the income and assets of a minor. A person's assets may include, by court order, digital property, as defined in s. 711.03 (10)
“Guardian of the estate" means a guardian appointed to comply with the duties specified in s. 54.19
and to exercise any of the powers specified in s. 54.20
“Guardian of the person" means a guardian appointed to comply with the duties specified in s. 54.25 (1)
and to exercise any of the powers specified in s. 54.25 (2)
“Heir" means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.51 (10)
when the decedent was a member of the Wisconsin Veterans Home at King or at the facilities operated by the department of veterans affairs under s. 45.50
at the time of the decedent's death.
“Impairment" means a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.
“Incapacity" means the inability of an individual effectively to receive and evaluate information or to make or communicate a decision with respect to the exercise of a right or power.
“Individual found incompetent" means an individual who has been adjudicated by a court as meeting the requirements of s. 54.10 (3)
“Interested person" means any of the following:
For purposes of a petition for guardianship, any of the following:
The proposed ward, if he or she has attained 14 years of age.
The spouse or adult child of the proposed ward, or the parent of a proposed ward who is a minor.
For a proposed ward who has no spouse, child, or parent, an heir, as defined in s. 851.09
, of the proposed ward that may be reasonably ascertained with due diligence.
Any individual who is nominated as guardian, any individual who is appointed to act as guardian or fiduciary for the proposed ward by a court of any state, any trustee for a trust established by or for the proposed ward, any person appointed as agent under a power of attorney for health care, as defined in s. 155.01 (4)
, or any person appointed as agent under a durable power of attorney under ch. 244
If the proposed ward is a minor, the individual who has exercised principal responsibility for the care and custody of the proposed ward during the period of 60 consecutive days immediately before the filing of the petition.
If the proposed ward is a minor and has no living parent, any individual nominated to act as fiduciary for the minor in a will or other written instrument that was executed by a parent of the minor.
If the proposed ward is receiving moneys paid, or if moneys are payable, by the federal department of veterans affairs, a representative of the federal department of veterans affairs, or, if the proposed ward is receiving moneys paid, or if moneys are payable, by the state department of veterans affairs, a representative of the state department of veterans affairs.
If the proposed ward is receiving long-term support services or similar public benefits, the county department of human services or social services that is providing the services or benefits.
The corporation counsel of the county in which the petition is filed and, if the petition is filed in a county other than the county of the proposed ward's residence, the corporation counsel of the county of the proposed ward's residence.
For purposes of proceedings subsequent to an order for guardianship, any of the following:
The spouse or adult child of the ward or the parent of a minor ward.
The county of venue, through the county's corporation counsel, if the county has an interest.
Any person appointed as agent under a durable power of attorney under ch. 244
, unless the agency is revoked or terminated by a court.
Any other individual that the court may require, including any fiduciary that the court may designate.
“Least restrictive" means that which places the least possible restriction on personal liberty and the exercise of rights and that promotes the greatest possible integration of an individual into his or her community that is consistent with meeting his or her essential requirements for health, safety, habilitation, treatment, and recovery and protecting him or her from abuse, exploitation, and neglect.
“Meet the essential requirements for physical health or safety" means perform those actions necessary to provide the health care, food, shelter, clothes, personal hygiene, and other care without which serious physical injury or illness will likely occur.
“Minor" means an individual who has not attained the age of 18 years.
“Mortgage" means any agreement or arrangement in which property is used as security.
“Other like incapacities" means those conditions incurred at any age that are the result of accident, organic brain damage, mental or physical disability, or continued consumption or absorption of substances, and that produce a condition that substantially impairs an individual from providing for his or her own care or custody.
“Personal representative" means any individual to whom letters to administer a decedent's estate have been granted by the court or by the probate registrar under ch. 865
, but does not include a special administrator.
“Property" means any interest, legal or equitable, in real or personal property, without distinction as to kind, including money, rights of a beneficiary under a contractual arrangement, digital property, as defined in s. 711.03 (10)
, choses in action, and anything else that may be the subject of ownership.
“Proposed ward" means a minor, an individual alleged to be incompetent, or an alleged spendthrift, for whom a petition for guardianship is filed.
“Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20)
, that is used to treat or manage a psychiatric symptom or challenging behavior.
“Sale" includes an option or agreement to transfer whether the consideration is cash or credit. It includes exchange, partition, and settlement of title disputes. The intent of this subsection is to extend and not to limit the meaning of “sale."
“Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support and that may be of lifelong duration. “Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
“Spendthrift" means a person who, because of the use of alcohol or other drugs or because of gambling or other wasteful course of conduct, is unable to manage effectively his or her financial affairs or is likely to affect the health, life, or property of himself, herself, or others so as to endanger his or her support and the support of his or her dependents, if any, or expose the public to responsibility for his or her support.
“Standby conservator" means an individual designated by the court under s. 54.76 (2)
whose appointment as conservator becomes effective immediately upon the death, resignation, or court's removal of the initially appointed conservator, or if the initially appointed conservator is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.
“Standby guardian" means an individual designated by the court under s. 54.52 (2)
whose appointment as guardian becomes effective immediately upon the death, resignation, or court's removal of the initially appointed guardian, or if the initially appointed guardian is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.
“Successor guardian" means an individual appointed under s. 54.54
“Surviving spouse" means an individual who was married to the decedent at the time of the decedent's death. “Surviving spouse" does not include any of the following:
An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless the 2 subsequently participated in a marriage ceremony purporting to marry each other or they subsequently held themselves out as husband and wife.
An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a 3rd individual.
An individual who was party to a valid proceeding concluded by an order purporting to terminate all property rights based on the marriage with the decedent.
“Ward" means an individual for whom a guardian has been appointed.
“Will" includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1)
. “Will" does not include a copy, unless the copy has been proven as a will under s. 856.17
, but “will" does include a properly executed duplicate original.
See s. 46.011
for definitions applicable to chs. 46
Landmark Reforms Signed Into Law: Guardianship and Adult Protective Services. Abramson & Raymond. Wis. Law. Aug. 2006.
APPOINTMENT OF GUARDIAN
Appointment of guardian. 54.10(1)(1)
A court may appoint a guardian of the estate for an individual if the court determines that the individual is a minor. Except as provided in ss. 48.427
, and 48.978
, an appointment of a guardian of the person of a minor shall be conducted under the procedures specified in s. 48.9795
A court may appoint a guardian of the estate for an individual if the court finds by clear and convincing evidence that the individual is aged at least 18 years and is a spendthrift.
In appointing a guardian of the estate under this subsection or determining what powers are appropriate for the guardian of the estate to exercise under s. 54.18
, the court shall consider all of the following:
The medical or psychological report provided under s. 54.36 (1)
and any additional medical, psychological, or other evaluation ordered by the court under s. 54.40 (4) (e)
or offered by a party and received by the court.
Whether other reliable resources are available to provide for the individual's personal needs or property management, and whether appointment of a guardian of the estate is the least restrictive means to provide for the individual's need for a substitute decision maker.
The preferences, desires, and values of the individual with regard to personal needs or property management.
The nature and extent of the individual's care and treatment needs and property and financial affairs.
Whether the individual's situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
The extent of the demands placed on the individual by his or her personal needs and by the nature and extent of his or her property and financial affairs.