Chapter 54

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.

54.21(1)(b)5. 5. Any of the ward’s siblings who has an ownership interest in property that is co-owned with the ward.

54.21(1)(b)6. 6. Any of the ward’s children who provides care for the ward as specified in 42 USC 1396p (c) (2) (A) iv.

54.21(1)(c) (c) “Will, trust, or other instrument” includes a revocable or irrevocable trust, a durable power of attorney, or a marital property agreement.

54.21(2) (2) A guardian or other individual who seeks an order authorizing and directing the guardian of the estate to transfer any of a ward’s income or assets to or for the benefit of any person shall submit to the court a petition that specifies all of the following:

54.21(2)(a) (a) Whether a proceeding by anyone seeking this authority with respect to the ward’s income and assets was previously commenced and, if so, a description of the nature of the proceeding and the disposition made of it.

54.21(2)(b) (b) The amount and nature of the ward’s financial obligations, including moneys currently and prospectively required to provide for the ward’s maintenance, support, and well-being and to provide for others dependent upon the ward for support, regardless of whether the ward is legally obligated to provide the support. If the petitioner has access to a copy of a court order or written agreement that specifies support obligations of the ward, the petitioner shall attach the copy to the petition.

54.21(2)(c) (c) The income and assets of the ward that is the subject of the petition, the proposed disposition of the property, and the reasons for the disposition.

54.21(2)(d) (d) The wishes, if ascertainable, of the ward.

54.21(2)(e) (e) As specified in sub. (3), whether the ward has previously executed a will or similar instrument.

54.21(2)(f) (f) A description of any significant gifts or patterns of gifts that the ward has made.

54.21(2)(g) (g) The current and likely future effect of the proposed transfer of assets on the ward’s eligibility for public benefits, including medical assistance.

54.21(2)(h) (h) Whether the guardian of the person and the guardian of the estate, if not the petitioner, agree with or object to the transfer.

54.21(2)(i) (i) The names, post-office addresses, and relationships to the ward of all of the following:

54.21(2)(i)1. 1. Any presumptive adult heirs of the ward who can be ascertained with reasonable diligence.

54.21(2)(i)2. 2. If the ward has previously executed a will, trust, or other instrument, the named or described beneficiaries, if known, under the most recent will, trust, or other instrument executed by the ward.

54.21(3) (3) 

54.21(3)(a) (a) If a ward has previously executed a will, trust, or other instrument for nontestamentary transfer and the petitioner is able, with reasonable diligence, to obtain a copy, the petitioner shall provide the copy to the court, together with a statement that specifies all of the following:

54.21(3)(a)1. 1. The manner in which the copy was secured.

54.21(3)(a)2. 2. The manner in which the terms of the will, trust, or other instrument for nontestamentary transfer became known to the petitioner for nontestamentary transfer.

54.21(3)(a)3. 3. The basis for the petitioner’s belief that the copy is of the ward’s most recently executed will, trust, or other instrument.

54.21(3)(b) (b) If the petitioner is unable to obtain a copy of the most recently executed will or other dispositive estate planning document or is unable to determine if the ward has previously executed a will or other dispositive estate planning document, the petitioner shall provide a statement to the court that specifies the efforts that were made by the petitioner to obtain a copy or ascertain the information.

54.21(3)(c) (c) If a copy of the most recently executed will or other dispositive estate planning document is not otherwise available, the court may order the person who has the original will or other dispositive estate planning document to provide a photocopy to the court for in camera examination. The court may provide the photocopy to the parties to the proceeding unless the court finds that doing so is contrary to the ward’s best interests.

54.21(3)(d) (d) The petitioner and the court shall keep confidential the information in a will or other dispositive estate planning document, or a copy of the will or other dispositive estate planning document, under this subsection, and may not, unless otherwise authorized, disclose that information.

54.21(4) (4) The petitioner shall serve notice upon all of the following, together with a copy of the petition, stating that the petitioner will move the court, at a time and place named in the notice, for the order described in the petition:

54.21(4)(a) (a) If not the same as the petitioner, the guardian of the person and the guardian of the estate.

54.21(4)(b) (b) Unless the court dispenses with notice under this subsection, the persons specified in sub. (2) (i), if known to the petitioner.

54.21(4)(c) (c) The county corporation counsel, if the county has an interest in the matter.

54.21(5) (5) The court shall consider all of the following in reviewing the petition:

54.21(5)(a) (a) The wishes of the ward, if known.

54.21(5)(b) (b) Whether the duration of the ward’s impairment is likely to be sufficiently brief so as to justify dismissal of the proceedings in anticipation of the ward’s recovered ability to decide whether, and to whom, to transfer his or her assets.

54.21(5)(c) (c) Whether the proposed transfer will benefit the ward, the ward’s income and assets, or members of the ward’s immediate family.

54.21(5)(d) (d) Whether the donees or beneficiaries under the proposed disposition are reasonably expected objects of the ward’s generosity and whether the proposed disposition is consistent with any ascertained wishes of the ward or known estate plan or pattern of lifetime gifts that he or she has made.

54.21(5)(e) (e) Whether the proposed disposition will produce tax savings that will significantly benefit the ward, his or her dependents, or other persons for whom the ward would be concerned.

54.21(5)(f) (f) The factors specified in sub. (2) (a) to (i) and any statements or other evidence under sub. (3).

54.21(5)(g) (g) Any other factors that the court determines are relevant.

54.21(6) (6) The court may grant the petition under sub. (2) and enter an order authorizing and directing the guardian of the estate to take action requested in the petition, if the court finds and records all of the following:

54.21(6)(a) (a) That the ward has incapacity to perform the act for which approval is sought and the incapacity is not likely to change positively within a reasonable period of time.

54.21(6)(b) (b) That a competent individual in the position of the ward would likely perform the act under the same circumstances.

54.21(6)(c) (c) That, before the ward had incapacity to perform the act for which approval is sought, he or she did not manifest intent that is inconsistent with the act.

54.21(7) (7) Nothing in this section requires a guardian to file a petition under this section and a guardian is not liable or accountable to any person for having failed to file a petition under this section.

54.21 History History: 2005 a. 387; 2019 a. 9.

54.22 54.22 Petition for authority to sell, mortgage, pledge, lease, or exchange ward’s property. Notwithstanding s. 54.20 (3) (g), (h), and (i), a person interested in the estate of a ward may petition the court to require the guardian to sell, mortgage, pledge, lease, or exchange any asset of the estate of the ward. Following the petition and upon any notice and hearing that the court requires, the court may so order, subject to ch. 786, for the purpose of paying the ward’s debts, providing for the ward’s care, maintenance, and education and the care, maintenance, and education of the ward’s dependents, investing the proceeds, or for any other purpose that is in the best interest of the ward.

54.22 History History: 2005 a. 387 s. 400.