Chapter 54

54.40 54.40 Guardian ad litem; appointment; duties; termination.

54.40(1) (1) Appointment. The court shall appoint a guardian ad litem when a petition for appointment of a guardian is brought under s. 54.34 (1), when a petition for receipt and acceptance of a foreign guardianship is brought under s. 54.34 (3), 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.

54.40(2) (2) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state and in compliance with SCR chapter 36. No one who is an interested person in a proceeding, appears as counsel in a proceeding on behalf of any party, or is a relative or representative of an interested person may be appointed guardian ad litem in that proceeding or in any other proceeding that involves the same proposed ward or ward.

54.40(3) (3) Responsibilities. The guardian ad litem shall be an advocate for the best interests of the proposed ward or ward as to guardianship, protective placement, and protective services. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but is not bound by, the wishes of the proposed ward or ward or the positions of others as to the best interests of the proposed ward or ward. The guardian ad litem has none of the rights or duties of a guardian.

54.40(4) (4) General duties. A guardian ad litem shall do all of the following:

54.40(4)(a) (a) Interview the proposed ward or ward and explain the contents of the petition, the applicable hearing procedure, the right to counsel, and the right to request or continue a limited guardianship.

54.40(4)(b) (b) Advise the proposed ward or ward, both orally and in writing, of that person’s rights to be present at the hearing, to a jury trial, to an appeal, to counsel, and to an independent medical or psychological examination on the issue of competency, at county expense if the person is indigent.

54.40(4)(c) (c) Interview the proposed guardian, the proposed standby guardian, if any, and any other person seeking appointment as guardian and report to the court concerning the suitability of each individual interviewed to serve as guardian and concerning the statement under s. 54.15 (8).

54.40(4)(d) (d)

54.40(4)(d)1. 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 244 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.

54.40(4)(d)2. 2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.

54.40(4)(d)3. 3. Report to the court concerning whether or not the proposed ward’s advance planning is adequate to preclude the need for guardianship.

54.40(4)(ds) (ds) Notify the guardian of the right to be present at and participate in the hearing, to present and cross-examine witnesses, to receive a copy of any evaluation under s. 55.11 (1) (intro.) or (2), and to secure and present a report on an independent evaluation under s. 54.42 (3).

54.40(4)(e) (e) Request that the court order additional medical, psychological, or other evaluation, if necessary.

54.40(4)(f) (f) If applicable, inform the court and petitioner’s attorney or, if none, the petitioner that the proposed ward or ward objects to a finding of incompetency, the present or proposed placement, or the recommendation of the guardian ad litem as to the proposed ward’s or ward’s best interests or that the proposed ward’s or ward’s position on these matters is ambiguous. If the guardian ad litem recommends that the hearing be held in a place other than a courtroom, the guardian ad litem shall provide the information under this paragraph as soon as possible.

54.40(4)(g) (g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner’s counsel, if any.

54.40(4)(h) (h) Attend all court proceedings related to the guardianship.

54.40(4)(i) (i) Present evidence concerning the best interests of the proposed ward or ward, if necessary.

54.40(4)(j) (j) Report to the court on any matter that the court requests.

54.40(5) (5) Communication to a jury. In jury trials under this chapter or ch. 55, the court or guardian ad litem may tell the jury that the guardian ad litem represents the best interests of the proposed ward or ward.

54.40(6) (6) Termination and extension of appointment. The appointment of a guardian ad litem under sub. (1) terminates upon the entry of the court’s final order or upon the termination of any appeal in which the guardian ad litem participates, even if counsel has been appointed for the proposed ward or ward. The court may extend that appointment, or reappoint a guardian ad litem whose appointment under this section has terminated, by an order specifying the scope of responsibilities of the guardian ad litem. At any time, the guardian ad litem, any party, or the individual for whom the appointment is made may request that the court terminate any extension or reappointment. The guardian ad litem may appeal or may participate in an appeal. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem’s decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal.

54.40 History History: 2005 a. 264 ss. 213 to 215; 2005 a. 387 ss. 100, 477 to 487, 496, 497; Stats. 2005 s. 54.40; 2007 a. 45; 2007 a. 96 ss. 155 to 159; 2009 a. 319.

54.40 Annotation A substantial relationship test applies for determining the need for attorney disqualification. Adversary counsel for the subject of an involuntary commitment may not be named guardian ad litem when the procedure is converted to a guardianship. Tamara L.P. v. County of Dane, 177 Wis. 2d 770, 503 N.W.2d 333 (Ct. App. 1993).

54.40 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.

54.42 54.42 Rights of proposed ward or ward.

54.42(1) (1) Right to counsel.

54.42(1)(a) (a) The proposed ward or ward has the right to counsel, if any of the following occurs:

54.42(1)(a)1. 1. The proposed ward or ward requests counsel.

54.42(1)(a)2. 2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.

54.42(1)(a)3. 3. The court determines that the interests of justice require counsel for the proposed ward or ward.

54.42(1)(b) (b) Any attorney obtained under par. (a) or appointed under par. (c) shall be an advocate for the expressed wishes of the proposed ward or ward.

54.42(1)(c) (c) If par. (a) 1., 2., or 3. applies but the proposed ward or ward is unable to obtain legal counsel, the court shall appoint legal counsel. If the proposed ward or ward is represented by counsel appointed under s. 977.08 in a proceeding under a petition for protective placement brought under s. 55.075, the court shall order the counsel appointed under s. 977.08 to represent the proposed ward or ward.

54.42(2) (2) Right to jury trial. The proposed ward or ward has the right to a trial by a jury if demanded by the proposed ward or ward, his or her attorney, or the guardian ad litem, except that the right is waived unless demanded at least 48 hours before the time set for the hearing. The number of jurors for such a trial is determined under s. 756.06 (2) (b). The proposed ward or ward, his or her attorney, or the guardian ad litem each has the right to present and cross-examine witnesses, including any physician or licensed psychologist who reports to the court concerning the proposed ward.

54.42(3) (3) Right to independent examination. If requested by the proposed ward, ward, or anyone on the proposed ward’s or ward’s behalf, the proposed ward or ward has the right at his or her own expense, or if indigent at the expense of the county where the petition is heard on the merits, to secure an independent medical or psychological examination relevant to the issue involved in any hearing under this chapter, and to present a report of this independent evaluation or the evaluator’s personal testimony as evidence at the hearing.

54.42(4) (4) Right to payment of expenses in contesting proceedings. If a guardian is appointed, the court shall, if the court determines it reasonable, allow payment from the ward’s income or assets of expenses incurred by the ward in contesting the appointment. These expenses are payable before other attorney or guardian ad litem fees.

54.42(5) (5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.

54.42(6) (6) Right to hearing in accessible location. The proposed ward or ward has the right to have any hearing regarding the guardianship conducted in a location and manner that is accessible to the proposed ward or ward.

54.42 History History: 2005 a. 264 s. 204; 2005 a. 387 ss. 100, 420, 460, 461, 463; 2007 a. 45.

54.42 Annotation The right to counsel guaranteed under sub. (1) (b) includes the ward’s right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court. Jennifer M. v. Maurer, 2010 WI App 8, 323 Wis. 2d 126, 779 N.W.2d 436, 08-1985.

54.42 Annotation The guardianship and protective placement statutes give certain rights under sub. (5) and s. 55.10 (4) to an individual who is the subject of a guardianship or protective placement petition, including the “right to be present” at the final hearing on the petition. Sections 54.44 (4) (a) and 55.10 (2) also require a petitioner to ensure that the individual who is the subject of a petition “attends” the final hearing, unless the individual’s guardian ad litem waives the attendance. Waiver, in this context, requires some affirmative relinquishment on the part of the holder. Those statutes protect an individual’s right to be physically present in the room where the hearing is held. Racine County v. P.B., 2022 WI App 62, 405 Wis. 2d 383, 983 N.W.2d 721, 22-0765.

54.44 54.44 Hearing.

54.44(1) (1) Time of hearing; provision of reports.

54.44(1)(a) (a) Time of hearing for petition. A petition for guardianship, other than a petition under par. (b) or (c) or s. 54.50 (1), shall be heard within 90 days after it is filed. The guardian ad litem and attorney for the proposed ward or ward shall be provided with a copy of the report of the examining physician or psychologist under s. 54.36 (1) at least 96 hours before the time of the hearing.

54.44(1)(b) (b) Time of hearing for certain appointments. A petition for guardianship of an individual who has been admitted to a nursing home or a community-based residential facility under s. 50.06 shall be heard within 60 days after it is filed. If an individual under s. 50.06 (3) alleges that an individual is making a health care decision under s. 50.06 (5) (a) that is not in the best interests of the incapacitated individual or if the incapacitated individual verbally objects to or otherwise actively protests the admission, the petition shall be heard as soon as possible within the 60-day period.

54.44(1)(c) (c) Time of hearing for petition for receipt and acceptance of a foreign guardianship.

54.44(1)(c)1. 1. If a motion for a hearing on a petition for receipt and acceptance of a foreign guardianship is made by the foreign ward, by a person who has received notice under s. 53.32 (2), or on the court’s own motion, a hearing on the petition shall be heard within 90 days after the petition is filed.

54.44(1)(c)2. 2. If a petition for receipt and acceptance of a foreign guardianship includes a request to modify the provisions of the foreign guardianship, the petition shall be heard within 90 days after it is filed.

54.44(1)(c)3. 3. If a person receiving notice of the petition for receipt and acceptance of the foreign guardianship challenges the validity of the foreign guardianship or the authority of the foreign court to appoint the foreign guardian, the court may stay the proceeding under this subsection to afford the opportunity to the interested person to have the foreign court hear the challenge and determine its merits.

54.44(2) (2) Standard of proof. Any determination by the court as to whether the proposed ward or ward is a minor, is incompetent, or is a spendthrift shall be by clear and convincing evidence.

54.44(3) (3) Presence of proposed guardian or petitioner.

54.44(3)(a) (a) The proposed guardian and any proposed standby guardian shall be physically present at the hearing unless the court excuses the attendance of either or, for good cause shown, permits attendance by telephone.

54.44(3)(b) (b) The petitioner, for a petition for receipt and acceptance of a foreign guardianship, shall be physically present at the hearing specified under sub. (1) (c) unless the court excuses the petitioner’s attendance or, for good cause shown, permits attendance by telephone.

54.44(4) (4) Presence of proposed ward or ward.

54.44(4)(a) (a) Adult proposed ward or ward. The petitioner shall ensure that the proposed ward or ward attends the hearing unless the attendance is waived by the guardian ad litem. In determining whether to waive attendance by the proposed ward or ward, the guardian ad litem shall consider the ability of the proposed ward or ward to understand and meaningfully participate, the effect of the attendance of the proposed ward or ward on his or her physical or psychological health in relation to the importance of the proceeding, and the expressed desires of the proposed ward or ward. If the proposed ward or ward is unable to attend the hearing because of residency in a nursing home or other facility, physical inaccessibility, or a lack of transportation and if the proposed ward or ward, guardian ad litem, advocate counsel, or other interested person so requests, the court shall hold the hearing in a place where the proposed ward or ward may attend.

54.44(4)(b) (b) Minor proposed ward or ward. A minor proposed ward or ward is not required to attend the hearing.

54.44(4)(c) (c) Foreign ward. The petitioner for a petition for receipt and acceptance of a foreign guardianship shall ensure that the foreign ward attends the hearing unless the attendance is waived by the guardian ad litem. In determining whether to waive attendance by the foreign ward, the guardian ad litem shall consider the ability of the foreign ward to understand and meaningfully participate, the effect of the foreign ward’s attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the foreign ward’s expressed desires. If the foreign ward is unable to attend the hearing because of residency in a nursing home or other facility, physical inaccessibility, or a lack of transportation and if the foreign ward, guardian ad litem, advocate counsel, or other interested person so requests, the court shall hold the hearing in a place where the foreign ward may attend.

54.44(5) (5) Privacy of hearing. Every hearing under this chapter shall be closed, unless the proposed ward or ward or his or her attorney acting with the proposed ward’s or ward’s consent or the attorney for a foreign ward moves that it be open. If the hearing is closed, only interested persons, their attorneys, and witnesses may be present.

54.44(5m) (5m) Participation by interested persons. An interested person may participate in the hearing on the petition at the court’s discretion.

54.44(6) (6) Proposed guardian unsuitable. If the court finds that the proposed guardian is unsuitable, the court shall request that a petition proposing a suitable guardian be filed, shall set a date for a hearing to be held within 30 days, and shall require the guardian ad litem to investigate the suitability of a new proposed guardian.

54.44 History History: 2005 a. 387 ss. 100, 333; 2007 a. 45; 2007 a. 97 ss. 78, 233; 2017 a. 187.

54.44 Annotation The statutory provisions for an interested person’s formal participation in guardianship and protective placement hearings are specific and limited. No statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections. A court could consider such participation helpful and in its discretion allow an interested person to participate to the extent it considers appropriate. Coston v. Joseph P., 222 Wis. 2d 1, 586 N.W.2d 52 (Ct. App. 1998), 97-1210.

54.44 Annotation Section 907.03 does not allow the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. While in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions, procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B., 2003 WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377, 03-0967.

54.44 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.

54.44 Annotation It would be unreasonable to not permit a forfeiture of the right to attend the hearing regardless of the respondent’s conduct. The right may be forfeited if after having been warned by the judge that the respondent will be removed if the respondent continues the disruptive behavior, the respondent nevertheless insists on conducting himself or herself in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with the respondent in the courtroom. Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450, 09-0804.

54.44 Annotation A party cannot waive a challenge to the competency of a court based on a statutory limitation period such as that in sub. (1) (a). Tina B. v. Richard H., 2014 WI App 123, 359 Wis. 2d 204, 857 N.W.2d 432, 13-2534.

54.44 Annotation The guardianship and protective placement statutes give certain rights under ss. 54.42 (5) and 55.10 (4) to an individual who is the subject of a guardianship or protective placement petition, including the “right to be present” at the final hearing on the petition. Sub. (4) (a) and s. 55.10 (2) also require a petitioner to ensure that the individual who is the subject of a petition “attends” the final hearing, unless the individual’s guardian ad litem waives the attendance. Waiver, in this context, requires some affirmative relinquishment on the part of the holder. Those statutes protect an individual’s right to be physically present in the room where the hearing is held. Racine County v. P.B., 2022 WI App 62, 405 Wis. 2d 383, 983 N.W.2d 721, 22-0765.

54.46 54.46 Disposition of petition. After the hearing under s. 54.44, the court shall dispose of the case in one of the following ways:

54.46(1) (1) Dismissal of the petition for guardianship.

54.46(1)(a) (a) If the court finds any of the following, the court shall dismiss the petition:

54.46(1)(a)1. 1. Contrary to the allegations of the petition, the proposed ward is not any of the following:

54.46(1)(a)1.a. a. Incompetent.

54.46(1)(a)1.b. b. A spendthrift.

54.46(1)(a)1.c. c. A minor.

54.46(1)(a)2. 2. Advance planning by the ward, as specified in s. 54.10 (3) (c) 3., renders guardianship unnecessary.

54.46(1)(a)3. 3. The elements of the petition are unproven.

54.46(1)(b) (b) The court may also consider an application by the proposed ward for the appointment of a conservator under s. 54.76.

54.46(1m) (1m) Dismissal of the petition for receipt and acceptance of a foreign guardianship. If the court finds any of the following, the court shall dismiss the petition:

54.46(1m)(a) (a) The foreign guardian is not presently in good standing with the foreign court.

54.46(1m)(b) (b) The foreign guardian is moving or has moved the foreign ward or the property of the foreign ward from the foreign jurisdiction in order to avoid or circumvent the provisions of the foreign guardianship order.

54.46(1m)(c) (c) The transfer of the foreign guardianship from the foreign jurisdiction is not in the best interests of the foreign ward.

54.46(1r) (1r) Receipt and acceptance of a foreign guardianship.

54.46(1r)(a) (a) The court shall grant a petition for receipt and acceptance of a foreign guardianship if the court finds all of the following:

54.46(1r)(a)1. 1. That the foreign guardian is presently in good standing with the foreign court.

54.46(1r)(a)2. 2. That the foreign guardian is not moving or has not moved the foreign ward or the property of the foreign ward from the foreign jurisdiction in order to avoid or circumvent the provisions of the foreign guardianship order.

54.46(1r)(a)3. 3. That the transfer of the foreign guardianship from the foreign jurisdiction is in the best interests of the foreign ward.

54.46(1r)(b) (b) In granting a petition under par. (a), the court shall give full faith and credit to the provisions of the foreign guardianship order concerning the determination of the foreign ward’s incapacity. However, the court may modify the provisions of the foreign guardianship order with respect to all of the following:

54.46(1r)(b)1. 1. Surety bond requirements.

54.46(1r)(b)2. 2. The appointment of a guardian ad litem.

54.46(1r)(b)3. 3. Periodic reporting requirements.