Chapter 54

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.

54.22 Annotation Transfer of a disabled ward’s property to a newly-established “Medicaid Payback Trust” was in the ward’s best interest and authorized by ss. 49.454 (4) and 880.19 (5) (b) [now this section]. Marjorie A.G. v. Dodge County Department of Human Services, 2003 WI App 52, 261 Wis. 2d 679, 659 N.W.2d 438, 02-1121.

54.22 Note NOTE: The above annotation relates 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.

54.25 54.25 Duties and powers of guardian of the person.

54.25(1) (1) Duties. A guardian of the person shall do all of the following:

54.25(1)(a) (a) Make an annual report on the condition of the ward to the court that ordered the guardianship and to the county department designated under s. 55.02 (2). That county department shall develop reporting requirements for the guardian of the person. The report shall include the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement as to whether or not the ward is living in the least restrictive environment consistent with the needs of the ward.

54.25(1)(b) (b) Endeavor to secure any necessary care or services for the ward that are in the ward’s best interests, based on all of the following:

54.25(1)(b)1. 1. Regular inspection, in person, of the ward’s condition, surroundings, and treatment.

54.25(1)(b)2. 2. Examination of the ward’s patient health care records and treatment records and authorization for redisclosure as appropriate.

54.25(1)(b)3. 3. Attendance and participation in staff meetings of any facility in which the ward resides or is a patient, if the meeting includes a discussion of the ward’s treatment and care.

54.25(1)(b)4. 4. Inquiry into the risks and benefits of, and alternatives to, treatment for the ward, particularly if drastic or restrictive treatment is proposed.

54.25(1)(b)5. 5. Specific consultation with providers of health care and social services in making all necessary treatment decisions.

54.25(2) (2) Powers.

54.25(2)(a) (a) Rights and powers of a guardian of the person. A guardian of the person has only those rights and powers that the guardian is specifically authorized to exercise by statute, rule, or court order. Any other right or power is retained by the ward, unless the ward has been declared incompetent to exercise the right under par. (c) or the power has been transferred to the guardian under par. (d).

54.25(2)(b) (b) Rights retained by individuals determined incompetent. An individual determined incompetent retains the power to exercise all of the following rights, without consent of the guardian:

54.25(2)(b)1. 1. To have access to and communicate privately with the court and with governmental representatives, including the right to have input into plans for support services, the right to initiate grievances, including under state and federal law regarding resident or patient rights, and the right to participate in administrative hearings and court proceedings.

54.25(2)(b)2. 2. To have access to, communicate privately with, and retain legal counsel. Fees are to be paid from the income and assets of the ward, subject to court approval.

54.25(2)(b)3. 3. To have access to and communicate privately with representatives of the protection and advocacy agency under s. 51.62 and the board on aging and long-term care.

54.25(2)(b)4. 4. To protest a residential placement made under s. 55.055, and to be discharged from a residential placement unless the individual is protectively placed under ch. 55 or the requirements of s. 55.135 (1) are met.

54.25(2)(b)5. 5. To petition for court review of guardianship, protective services, protective placement, or commitment orders.

54.25(2)(b)6. 6. To give or withhold a consent reserved to the individual under ch. 51.

54.25(2)(b)7. 7. To exercise any other rights specifically reserved to the individual by statute or the constitutions of the state or the United States, including the rights to free speech, freedom of association, and the free exercise of religious expression.

54.25(2)(c) (c) Declaration of incompetence to exercise certain rights.

54.25(2)(c)1. 1. The court may, as part of a proceeding under s. 54.44 in which an individual is found incompetent and a guardian is appointed, declare that the individual has incapacity to exercise one or more of the following rights:

54.25(2)(c)1.a. a. The right to consent to marriage.

54.25(2)(c)1.b. b. The right to execute a will.

54.25(2)(c)1.c. c. The right to serve on a jury.

54.25(2)(c)1.d. d. The right to apply for an operator’s license, a license issued under ch. 29, a license, certification, or permit issued under s. 89.06, 89.072, or 89.073, or a credential, as defined in s. 440.01 (2) (a), if the court finds that the individual is incapable of understanding the nature and risks of the licensed or credentialed activity, to the extent that engaging in the activity would pose a substantial risk of physical harm to the individual or others. A failure to find that an individual is incapable of applying for a license or credential is not a finding that the individual qualifies for the license or credential under applicable laws and rules.

54.25(2)(c)1.e. e. The right to consent to sterilization, if the court finds that the individual is incapable of understanding the nature, risk, and benefits of sterilization, after the nature, risk, and benefits have been presented in a form that the individual is most likely to understand.

54.25(2)(c)1.f. f. The right to consent to organ, tissue, or bone marrow donation.

54.25(2)(c)1.g. g. The right to register to vote or to vote in an election, if the court finds that the individual is incapable of understanding the objective of the elective process. Also, in accordance with s. 6.03 (3), any elector of a municipality may petition the circuit court for a determination that an individual residing in the municipality is incapable of understanding the objective of the elective process and thereby ineligible to register to vote or to vote in an election. This determination shall be made by the court in accordance with the procedures specified in this paragraph. If a petition is filed under this subd. 1. g., the finding of the court shall be limited to a determination as to voting eligibility. The appointment of a guardian is not required for an individual whose sole limitation is ineligibility to vote. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, 6.93, or 7.52 (5) with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) and any subsequent determination of the court shall be likewise communicated by the clerk of court.

54.25(2)(c)2. 2. Any finding under subd. 1. that an individual lacks evaluative capacity to exercise a right must be based on clear and convincing evidence. In the absence of such a finding, the right is retained by the individual.

54.25(2)(c)3. 3. If an individual is declared not competent to exercise a right under subd. 1. or 4., a guardian may not exercise the right or provide consent for exercise of the right on behalf of the individual. If the court finds with respect to a right listed under subd. 1. a., d., e., or f. that the individual is competent to exercise the right under some but not all circumstances, the court may order that the individual retains the right to exercise the right only with consent of the guardian of the person.

54.25(2)(c)4. 4. Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process. If the petition for a declaration of incompetence to vote is not part of a petition for guardianship, the same procedures shall apply as would apply for a petition for guardianship. The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, or 6.93 with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) (a) and (c) and any subsequent determination of the court shall be likewise communicated by the clerk of court.

54.25(2)(d) (d) Guardian authority to exercise certain powers.