Practicing Attorneys: James Phelan, Renee Read, Jolene Schnieder, Mark Tyczkowski and Christine Wanless
What is a guardian?
A “guardian” is a court appointed person who is tasked with managing the income and assets, and provide for the essential requirements for health, safety, and personal needs of an individual. A guardian may be appointed if the individual is (1) a minor, (2) an individual found incompetent, or (3) a spendthrift.
Minor – Wisconsin Statutes section 54.10(1) provides “A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual if the court determines that the individual is a minor.” “Minor” means “an individual who has not attained the age of 18 years. 54.01(20).
Spendthrift – Wisconsin Statutes section 54.10(2) provides “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.”
Incompetent – Wisconsin Statutes section 54.10(3) provides “A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual based on a finding that the individual is incompetent.” In order for a finding of incompetence to be made, the court must find that:
1. The individual is aged at least 17 years and 9 months.
2. For purposes of appointment of a guardian of the person, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.
3. For purposes of appointment of a guardian of the estate, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that any of the following applies:
4. The individual has property that will be dissipated in whole or in part.
5. The individual is unable to provide for his or her support.
6. The individual is unable to prevent financial exploitation.
7. The individual’s need for assistance in decision making or communication is unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, a supported decision-making agreement under ch. 52, or other means that the individual will accept.
What will be considered in determining whether a guardian needs to be appointed?
Wisconsin Statutes section 54.10(c) provides the following shall be considered by the court:
1. The report of the guardian ad litem….
2. The medical or psychological report….
3. Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship….
4. Whether other reliable resources are available to provide for the individual’s personal needs or property management, and whether appointment of a guardian is the least restrictive means to provide for the individual’s need for a substitute decision maker.
5. The preferences, desires, and values of the individual with regard to personal needs or property management.
6. The nature and extent of the individual’s care and treatment needs and property and financial affairs.
7. Whether the individual’s situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
8. Whether the individual can adequately understand and appreciate the nature and consequences of his or her impairment.
9. The individual’s management of the activities of daily living.
10. The individual’s understanding and appreciation of the nature and consequences of any inability he or she may have with regard to personal needs or property management.
11. 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.
12. Any physical illness of the individual and the prognosis of the individual.
13. Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.
14. Any medication with which the individual is being treated and the medication’s effect on the individual’s behavior, cognition, and judgment.
15. Whether the effect on the individual’s evaluative capacity is likely to be temporary or long term, and whether the effect may be ameliorated by appropriate treatment.
16. Other relevant evidence.
Who will be selected as guardian?
In determining who will be appointed guardian, pursuant to Wisconsin Statutes section 54.15, the court will consider:
(1) Opinions of proposed ward and family….
(1m) Potential conflicts of interest…
(2) Agent under durable power of attorney…
(3) Agent under a power of attorney for health care….
(4) Person nominated by proposed ward….
(5) Parent of a proposed ward….
(6) Testamentary nomination by proposed ward’s parents…..
(7) Private nonprofit corporation or other entity….
(8) Statement of acts by proposed guardian.…
What are the powers of a guardian?
Wisconsin Statutes section 54.18(1) provides that an individual “retains all his or her rights that are not assigned to the guardian or otherwise limited by statute. A guardian acting on behalf of a ward may exercise only those powers that the guardian is authorized to exercise by statute or court order.” Specific powers of a guardian of the estate are outlined in Wisconsin Statutes section 54.20. Additionally, powers of a guardian of the person are outlined in Wisconsin Statutes section 54.25.
What are the duties of a guardian?
Wisconsin Statutes section 54.18(2) provides that a guardian must:
(a) Exercise the degree of care, diligence, and good faith when acting on behalf of a ward that an ordinarily prudent person exercises in his or her own affairs.
(b) Advocate for the ward’s best interests, including, if the ward is protectively placed under ch. 55 and if applicable, advocating for the ward’s applicable rights under ss. 50.09 and 51.61.
(c) Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.
(d) Notify the court of any change of address of the guardian or ward.
Specific duties of a guardian of the estate are outlined in Wisconsin Statutes section 54.19, and duties of guardian of the person are outlined in Wisconsin Statutes section 54.25.
How do I start a guardianship proceeding?
You “may petition for the appointment of a guardian for an individual” pursuant to Wisconsin Statutes section 54.34. If the petition is the result of alleged incompetency or a spendthrift, the individual will then need to be exampled by a physician or psychologist pursuant to Wisconsin Statutes section 54.36. A guardian ad litem will then be appointed “to review the scope of a guardianship, to provide protective placement to an individual or order protective services under ch. 55, to review any protective placement under s. 55.18, to terminate a protective placement under s. 55.17, to expand an order of guardianship under s. 54.63, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, or at any other time that the court determines it is necessary.” Wis. Stat. § 54.40.
What happens after the petition is filed?
A hearing on the petition will generally “be heard within 90 days” of the filing. Wis. Stat. § 54.44. The court will then either dismissal the petition when the court finds that the individual is not incompetent, a spend, or a minor; the individual has done advance planning that “renders guardianship unnecessary”; or the “elements of the petition are unproven.” Wis. Stat. § 54.46. However, if the individual “is found to be incompetent, a minor, or a spendthrift, the court may enter a determination and order appointing a guardian.” Id.
What will be required post-appointment?
Wisconsin Statutes section 54.60 provides that the “guardian of the estate shall prepare an inventory that lists all of the ward’s income and assets.” Additionally, “unless waived by a court, every guardian, including a corporate guardian, shall, prior to April 15 of each year, file an account under oath that specifies the amount of the ward’s assets or income received and held or invested by the guardian, the nature and manner of the investment, and the guardian’s receipts and expenditures during the preceding calendar year.” Wis. Stat. § 54.62.
Can a guardianship be terminated?
Pursuant to Wisconsin Statutes section 54.64 “A ward who is 18 years of age or older, any person acting on the ward’s behalf, or the ward’s guardian may petition for a review of incompetency, to have the guardian discharged and a new guardian appointed, or to have the guardianship limited and specific rights restored.” Upon the filing of such petition, the court will appoint a guardian ad litem and schedule a hearing. Id. The court may thereafter, “terminate or modify the guardianship, including restoring certain of the ward’s rights.” Id. Generally, a guardianship of a person may be terminated pursuant to the factors outlined in Wisconsin Statutes section 54.64(3) and a guardianship of the estate may be terminated pursuant to the factors outlined in Wisconsin Statutes section 54.64(4).
Our attorneys can help advise you with any guardianship matter. Call our Neenah office at 920-725-2601 or use our online form to make an appointment.