Chapter 54

54.15(4)(c) (c) If neither parent of a minor who is 14 years or older is suitable and willing to be appointed guardian, the court may appoint the nominee of the minor.

54.15(5) (5) Parent of a proposed ward. If one or both of the parents of a minor or an individual with developmental disability or with serious and persistent mental illness are suitable and willing, the court shall appoint one or both as guardian unless the court finds that the appointment is not in the proposed ward’s best interest. The court shall consider a proposed ward’s objection to the appointment of his or her parent.

54.15(6) (6) Testamentary nomination by proposed ward’s parents. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not in the minor’s best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.

54.15(7) (7) Private nonprofit corporation or other entity. A private nonprofit corporation organized under ch. 181, 187, or 188 or an unincorporated association that is approved by the court may be appointed as guardian of the person or of the estate or both, of a proposed ward, if no suitable individual is available as guardian and the department, under rules promulgated under this chapter, finds the corporation or association to be a suitable agency to perform such duties.

54.15 Cross-reference Cross-reference: See also ch. DHS 85, Wis. adm. code.

54.15(8) (8) Statement of acts by proposed guardian.

54.15(8)(a) (a) At least 96 hours before the hearing under s. 54.44, the proposed guardian shall submit to the court all of the following:

54.15(8)(a)1m. 1m. A sworn and notarized statement as to whether any of the following is true:

54.15(8)(a)1m.a. a. The proposed guardian is currently charged with or has been convicted of a crime, as defined in s. 939.12.

54.15(8)(a)1m.b. b. The proposed guardian has filed for or received protection under the federal bankruptcy laws.

54.15(8)(a)1m.c. c. Any license, certificate, permit, or registration of the proposed guardian that is required under chs. 89, 202, or 440 to 480 or by the laws of another state for the practice of a profession or occupation has been suspended or revoked.

54.15(8)(a)1m.d. d. The proposed guardian is listed under s. 146.40 (4g) (a) 2.

54.15(8)(a)2m. 2m. A sworn and notarized statement that the proposed guardian has completed the training requirements under s. 54.26 (1), unless exempted under s. 54.26 (2) (c), (d), or (e).

54.15(8)(b) (b) If par. (a) 1m. a., b., c., or d. applies to the proposed guardian, he or she shall include in the sworn and notarized statement a description of the circumstances surrounding the applicable event under par. (a) 1m. a., b., c., or d.

54.15(9) (9) Limitation on number of wards of guardian. No individual may have guardianship of the person of more than 5 adult wards who are unrelated to the individual, except that a court may, under circumstances that the court determines are appropriate, waive this limitation to authorize appointment of the individual as guardian of the person of additional adult wards who are unrelated to the individual. A corporation or association that is approved by the department under sub. (7) is not limited in the number of adult wards for which the corporation or association may accept appointment by a court as guardian.

54.15 History History: 2005 a. 387 ss. 100, 346, 348, 349, 351, 354, 356, 469, 470, 506; 2007 a. 45; 2013 a. 20; 2015 a. 55; 2019 a. 109; 2021 a. 97.

54.15 Annotation An unfit parent’s nomination of a person to serve as guardian of the parent’s children should be weighed by the court. Brezinski v. Barkholtz, 71 Wis. 2d 317, 237 N.W.2d 919 (1976).

54.15 Annotation A parent’s fundamental liberty interest in the care, custody, and control of a child is not violated if the parent’s nomination of a guardian is not presumed to be in the child’s best interests when the parent is unable to have custody and provide care. The preference in s. 880.09 (2) [now sub. (5)] does not address a parent’s wishes for another to act as guardian when the parent is not suitable to act as guardian. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M., 2004 WI App 45, 270 Wis. 2d 411, 678 N.W.2d 285, 02-2640.

54.15 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.

54.18 54.18 General duties and powers of guardian; limitations; immunity.

54.18(1) (1) A ward 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. A guardian may be granted only those powers necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention.

54.18(2) (2) A guardian shall do all of the following:

54.18(2)(a) (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.

54.18(2)(b) (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.

54.18(2)(c) (c) Exhibit the utmost degree of trustworthiness, loyalty, and fidelity in relation to the ward.

54.18(2)(d) (d) Notify the court of any change of address of the guardian or ward.

54.18(3) (3) No guardian may do any of the following:

54.18(3)(a) (a) Lend funds of the ward to himself or herself.

54.18(3)(b) (b) Lend funds of the ward to another individual or to an entity, unless the court first approves the terms, rate of interest, and any requirement for security.

54.18(3)(c) (c) Purchase property of the ward, except at fair market value, subject to ch. 786, and with the approval of the court.

54.18(4) (4) A guardian of the person or of the estate is immune from civil liability for his or her acts or omissions in performing the duties of the guardianship if he or she performs the duties in good faith, in the best interests of the ward, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

54.18 History History: 2005 a. 387 ss. 100, 397, 401, 516.

54.19 54.19 Duties of guardian of the estate. Subject to s. 54.18 (1) and except as specifically limited in the order of appointment, the guardian of the estate shall, following any applicable procedures of s. 54.22, do all of the following in order to provide a ward with the greatest amount of independence and self-determination with respect to property management in light of the ward’s functional level, understanding, and appreciation of his or her functional limitations and the ward’s personal wishes and preferences with regard to managing the activities of daily living:

54.19(1) (1) Take possession of the ward’s real and personal property, of any rents, income, and benefits accruing from the property, and of any proceeds arising from the sale, mortgage, lease, or exchange of the property, and prepare an inventory of these. Subject to this possession, the title of all the income and assets of the ward and the increment and proceeds of the income and assets of the ward remains vested in the ward and is not vested in the guardian.

54.19(2) (2) Retain, expend, distribute, sell, or invest the ward’s property, rents, income, benefits, and proceeds and account for all of them, subject to chs. 786 and 881.

54.19(3) (3) Determine, if the ward has executed a will, the will’s location, determine the appropriate persons to be notified in the event of the ward’s death, and, if the death occurs, notify those persons.

54.19(4) (4) Use the ward’s income and property to maintain and support the ward and any dependents of the ward.

54.19(5) (5) Prepare and file an annual account as specified in s. 54.62.

54.19(6) (6) At the termination of the guardianship, deliver the ward’s assets to the persons entitled to them.

54.19(7) (7) With respect to claims, pay the legally enforceable debts of the ward, including by filing tax returns and paying any taxes owed, from the ward’s estate and income and assets.

54.19(8) (8) File, with the register of deeds of any county in which the ward possesses real property of which the guardian has actual knowledge, a sworn and notarized statement that specifies the legal description of the property, the date that the ward is determined to be incompetent, and the name, address, and telephone number of the ward’s guardian and any surety on the guardian’s bond.

54.19(9) (9) For a ward who receives governmental benefits for which a representative payee is appropriate, if no representative payee is appointed, apply to be appointed the ward’s representative payee, or ensure that a representative payee is appointed.

54.19(10) (10) Perform any other duty required by the court order.

54.19 History History: 2005 a. 387 ss. 100, 388, 413; 2007 a. 45.

54.20 54.20 Powers of guardian of the estate.

54.20(1) (1) Standard. In exercising the powers under this section, the guardian of the estate shall use the judgment and care that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, including the permanent, rather than speculative, disposition of their funds and consideration of the probable income and safety of their capital. In addition, in exercising powers and duties under this section, the guardian of the estate shall consider, consistent with the functional limitations of the ward, all of the following:

54.20(1)(a) (a) The ward’s understanding of the harm that he or she is likely to suffer as the result of his or her inability to manage property and financial affairs.

54.20(1)(b) (b) The ward’s personal preferences and desires with regard to managing his or her activities of daily living.

54.20(1)(c) (c) The least restrictive form of intervention for the ward.

54.20(2) (2) Powers requiring court approval. The guardian of the estate may do any of the following with respect to the ward’s income and assets only with the court’s prior written approval following any petition and upon any notice and hearing that the court requires:

54.20(2)(a) (a) Make gifts, under the terms, including the frequency, amount, and donees specified by the court in approval of a petition under s. 54.21.

54.20(2)(b) (b) Transfer assets of the ward to the trustee of any existing revocable living trust that the ward has created for himself or herself and any dependents, or, if the ward is a minor, to the trustee of any trust created for the exclusive benefit of the ward that distributes to him or her at age 18 or 21, or, if the ward dies before age 18 or 21, to his or her estate, or as the ward has appointed by a written instrument that is executed after the ward attains age 14.

54.20(2)(c) (c) Establish a trust as specified under 42 USC 1396p (d) (4) and transfer assets into the trust.

54.20(2)(d) (d) Purchase an annuity or insurance contract and exercise rights to elect options or change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value.

54.20(2)(e) (e) Ascertain, establish, and exercise any rights available to the ward under a retirement plan or account.

54.20(2)(f) (f) Exercise any elective rights that accrue to the ward as the result of the death of the ward’s spouse or parent.

54.20(2)(g) (g) Release or disclaim, under s. 854.13, any interest of the ward that is received by will, intestate succession, nontestamentary transfer at death, or other transfer.

54.20(2)(h) (h) If appointed for a married ward, exercise any management and control right over the marital property or property other than marital property and any right in the business affairs that the married ward could exercise under ch. 766 if the ward were not an individual found incompetent, consent to act together in or join in any transaction for which consent or joinder of both spouses is required, or execute under s. 766.58 a marital property agreement with the ward’s spouse or, if appointed for a ward who intends to marry, with the ward’s intended spouse, but may not make, amend or revoke a will.

54.20(2)(i) (i) Provide support for an individual whom the ward is not legally obligated to support.

54.20(2)(j) (j) Convey or release a contingent or expectation interest in property, including a marital property right and any right of survivorship that is incidental to a joint tenancy or survivorship marital property.

54.20(2)(k) (k) In all cases in which the court determines that it is advantageous to continue the business of a ward, continue the business on any terms and conditions specified in the order of the court.

54.20(2)(L) (L) Apply to the court for adjustment of any claims against the ward incurred before entry of the order appointing the guardian or the filing of a lis pendens as provided in s. 54.47. The court shall by order fix the time and place it will adjust claims and the time within which all claims shall be presented. Notice of these times and the place shall be given by publication as provided in s. 879.05 (4), and ch. 859 generally shall apply. After the court has made the order, no action or proceeding may be commenced or maintained in any court against the ward upon any claim over which the circuit court has jurisdiction.

54.20(2)(m) (m) Access the ward’s digital property in accordance with s. 711.08.

54.20(3) (3) Powers that do not require court approval. The guardian of the estate may do any of the following on behalf of the ward without first receiving the court’s approval:

54.20(3)(a) (a) Provide support from the ward’s income and assets for an individual whom the ward is legally obligated to support.

54.20(3)(b) (b) Enter into a contract, other than a contract under sub. (2) or that is otherwise prohibited under this chapter.

54.20(3)(c) (c) Exercise options of the ward to purchase securities or other property.

54.20(3)(d) (d) Authorize access to or release of the ward’s confidential financial records.

54.20(3)(e) (e) Apply for public and private benefits.

54.20(3)(f) (f) Retain any real or personal property that the ward possesses when the guardian is appointed or that the ward acquires by gift or inheritance during the guardian’s appointment.

54.20(3)(g) (g) Subject to ch. 786, sell, mortgage, pledge, lease, or exchange any asset of the ward at fair market value.

54.20(3)(h) (h) Invest and reinvest the proceeds of sale of any assets of the ward and any of the ward’s other moneys in the guardian’s possession in accordance with ch. 881.

54.20(3)(i) (i) Notwithstanding ch. 881, after such notice as the court directs, and subject to ch. 786, invest the proceeds of sale of any assets of the ward and any of the ward’s other moneys in the guardian’s possession in the real or personal property that is determined by the court to be in the best interests of the estate of the ward.

54.20(3)(j) (j) Settle all claims and accounts of the ward and appear for and represent the ward in all actions and proceedings except those for which another person is appointed.

54.20(3)(k) (k) Take any other action, except an action specified under sub. (2), that is reasonable or appropriate to the duties of the guardian of the estate.

54.20 History History: 2005 a. 387 ss. 100, 380, 383, 390, 391, 393, 395, 396, 399, 415, 417; 2015 a. 300.

54.20 Annotation The standard for a trial court’s exercise of discretion for a guardian of a married person is whether the proposed action will benefit the ward, the estate, or members of the ward’s immediate family. V.D.H. v. Circuit Court, 154 Wis. 2d 576, 453 N.W.2d 882 (1990).

54.20 Annotation A guardian is not authorized to make gifts from the guardianship estate to effectuate an estate plan that would avoid future death taxes. Michael S.B. v. Berns, 196 Wis. 2d 920, 540 N.W.2d 11 (Ct. App. 1995), 95-0580.

54.20 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.

54.20 Annotation An interested party without a direct financial stake in the action had standing to appeal an order permitting the termination of the ward’s life lease in real estate. Carla S. v. Frank B., 2001 WI App 97, 242 Wis. 2d 605, 626 N.W.2d 330, 99-3012.

54.20 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.

54.21 54.21 Petition to transfer ward’s assets to another.

54.21(1) (1) In this section:

54.21(1)(a) (a) “Disabled” has the meaning given in s. 49.468 (1) (a) 1.

54.21(1)(b) (b) “Other individual” means any of the following:

54.21(1)(b)1. 1. The ward’s spouse, if any.

54.21(1)(b)2. 2. The ward’s close friend, if any, and if the close friend meets the requirements of s. 50.94 (3) (e) 1. and 2.

54.21(1)(b)3. 3. The guardian ad litem of the ward’s minor child, if any.

54.21(1)(b)4. 4. The ward’s disabled child, if any.