Chapter 54

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.

54.46(1r)(b)4. 4. Any other provisions necessary to conform the foreign guardianship order to the requirements of this chapter and other requirements of this state.

54.46(1r)(c) (c) The court may require the foreign guardian to file an inventory of the foreign ward’s property at the time of the transfer from the foreign jurisdiction.

54.46(1r)(d) (d) If granting the petition for receipt and acceptance of the foreign guardianship, the court shall coordinate with the foreign court the orderly transfer of the foreign guardianship and, in doing so, the court may do all of the following:

54.46(1r)(d)1. 1. Delay the effective date of the receipt and acceptance of the foreign guardianship.

54.46(1r)(d)2. 2. Make the receipt and acceptance of the foreign guardianship contingent upon the release or termination of the foreign guardianship and discharge of the foreign guardian under the foreign jurisdiction.

54.46(1r)(d)3. 3. Recognize concurrent jurisdiction over the guardianship for a reasonable period of time to permit the foreign court to release or terminate the foreign guardianship and discharge the foreign guardian.

54.46(1r)(d)4. 4. Make other arrangements that the court determines are necessary to effectuate the receipt and acceptance of the foreign guardianship.

54.46(2) (2) Appointment of guardian; order. If the proposed ward is found to be incompetent, a minor, or a spendthrift, the court may enter a determination and order appointing a guardian that specifies any powers of the guardian that require court approval, as provided in ss. 54.20 (2) and 54.25 (2), and may provide for any of the following:

54.46(2)(a) (a) Coguardians. If the court appoints coguardians of the person or coguardians of the estate under s. 54.10 (5), and unless otherwise ordered by the court, each decision made by a coguardian with respect to the ward must be concurred in by any other coguardian, or the decision is void.

54.46(2)(b) (b) Power of attorney for health care. If the ward executed a power of attorney for health care under ch. 155 before a finding of incompetency and appointment of a guardian is made for the ward under this chapter, the power of attorney for health care remains in effect, except that the court may, only for good cause shown, revoke the power of attorney for health care or limit the authority of the agent under the terms of the power of attorney for health care instrument. Unless the court makes this revocation or limitation, the ward’s guardian may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent.

54.46(2)(c) (c) Durable power of attorney. If the ward has executed a durable power of attorney before a finding of incompetency and appointment of a guardian is made for the ward under this chapter, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the ward’s guardian may not make decisions for the ward that may be made by the agent, unless the guardian is the agent.

54.46(3) (3) Fees and costs.

54.46(3)(a) (a) Petitioner’s attorney fees and costs. If a guardian is appointed, the court shall award from the ward’s income and assets payment of the petitioner’s reasonable attorney fees and costs unless the court finds, after considering all of the following, that it would be inequitable to do so:

54.46(3)(a)1. 1. The petitioner’s interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship.

54.46(3)(a)2. 2. The ability of the ward’s estate to pay the petitioner’s reasonable attorney fees and costs.

54.46(3)(a)3. 3. Whether the guardianship was contested and, if so, the nature of the contest.

54.46(3)(a)4. 4. Whether the ward had executed a durable power of attorney under ch. 244 or a power of attorney for health care under s. 155.05 or had engaged in other advance planning for financial and health care decision making.

54.46(3)(a)5. 5. Any other factors that the court considers to be relevant.

54.46(3)(b) (b) Guardian ad litem and defense fees for indigents; liability. If the proposed ward is indigent, the county in which venue lies for the guardianship proceeding is the county liable for any fees due the guardian ad litem and, if counsel was not appointed under s. 977.08, for any legal fees due the proposed ward’s legal counsel.

54.46(3)(c) (c) Fees if guardian is not appointed. If a guardian is not appointed under sub. (2), the petitioner is liable for any fees due the guardian ad litem and the proposed ward’s legal counsel.

54.46(4) (4) Bond.

54.46(4)(a) (a) Amount and sufficiency of bond. The order under sub. (2) shall specify the amount of any bond required to be given by the guardian of the estate, conditioned upon the faithful performance of the duties of the guardian of the estate. No bond may be required for the guardian of the person.

54.46(4)(b) (b) Waiver of bond. Unless required under s. 54.852 (9), the court may waive the requirement of a bond under any of the following circumstances:

54.46(4)(b)1. 1. At any time.

54.46(4)(b)2. 2. If so requested in a will in which a nomination appears.

54.46(4)(b)3. 3. If a guardian has or will have possession of funds of the ward with a total value of $100,000 or less and the court directs deposit of the funds in an insured account of a bank, credit union, savings bank, or savings and loan association in the name of the guardian and the ward and payable only upon further order of the court.

54.46(5) (5) Letters of guardianship. If a guardian of the estate has given bond, if required, and the bond has been approved by the court, letters under the seal of the court shall be issued to the guardian of the estate. If a court determination and order appointing a guardian of the person is entered, letters under the seal of the court shall be issued to the guardian of the person.

54.46(6) (6) Emancipation of married minors. Except for a minor found to be incompetent, upon marriage, a minor is no longer a proper subject for guardianship of the person and a guardianship of the person is revoked by the marriage of a minor ward. Upon application, the court may release in whole or in part the income and assets of a minor ward to the ward upon the ward’s marriage.

54.46 History History: 2005 a. 264; 2005 a. 387 ss. 100, 309, 360 to 364, 366, 421 to 425, 462, 475; 2007 a. 45; 2009 a. 180, 319.

54.47 54.47 Lis pendens, void contracts. A certified copy of the petition and order for hearing provided for in ss. 54.34 and 54.38 may be filed in the office of the register of deeds for the county. If a guardian is appointed after a hearing on the petition and if the court’s order includes a finding that the ward may not make contracts, all contracts, except for necessaries at reasonable prices, and all gifts, sales, and transfers of property made by the ward after the filing of a certified copy of the order are void, unless notified by the guardian in writing.

54.47 History History: 1971 c. 41 ss. 8, 12; Stats. 1971 s. 880.215; 1973 c. 284; 1997 a. 304; 2005 a. 387 s. 410; Stats. 2005 s. 54.47.

54.48 54.48 Protective placement and protective services. A finding of incompetency and appointment of a guardian under this chapter is not grounds for involuntary protective placement or the provision of protective services. A protective placement and the provision of protective services may be made only in accordance with ch. 55.

54.48 History History: 2005 a. 264 s. 212; 2005 a. 387 s. 472; 2007 a. 45.

54.50 54.50 Temporary guardianships.

54.50(1) (1) Standard. If it is demonstrated to the court that a proposed ward’s particular situation, including the needs of the proposed ward’s dependents, requires the immediate appointment of a temporary guardian of the person or estate, the court may appoint a temporary guardian under this section.

54.50(2) (2) Duration and extent of authority. The court may appoint a temporary guardian for a ward for a period not to exceed 60 days, except that the court may extend this period for good cause shown for one additional 60-day period. The court may impose no further temporary guardianship on the ward for at least 90 days after the expiration of the temporary guardianship and any extension. The court’s determination and order appointing the temporary guardian shall specify the authority of the temporary guardian and shall be limited to those acts that are reasonably related to the reasons for appointment that are specified in the petition for temporary guardianship. The authority of the temporary guardian is limited to the performance of those acts stated in the order of appointment. Unless the court first specifically approves and orders bond, the temporary guardian may not sell real estate or expend an amount in excess of $2,000.

54.50(3) (3) Procedures for appointment. All of the following procedures apply to the appointment of a temporary guardian:

54.50(3)(a) (a) Any person may petition for the appointment of a temporary guardian for an individual. The petition shall contain the information required under s. 54.34 (1), shall specify reasons for the appointment of a temporary guardian and the powers requested for the temporary guardian, including the power specified in s. 51.30 (5) (e), and shall include a petition for appointment of a guardian of the person or estate or state why such a guardianship is not sought.

54.50(3)(b) (b) The court shall appoint a guardian ad litem, who shall attempt to meet with the proposed ward before the hearing or as soon as is practicable after the hearing, but not later than 7 calendar days after the hearing. The guardian ad litem shall report to the court on the advisability of the temporary guardianship at the hearing or not later than 10 calendar days after the hearing.

54.50(3)(c) (c) The court shall hold a hearing on the temporary guardianship. The hearing may be held no earlier than 48 hours after the filing of the petition unless good cause is shown. At the hearing, the petitioner shall provide a report or testimony from a physician or psychologist that indicates that there is a reasonable likelihood that the proposed ward is incompetent. The guardian ad litem shall attend the hearing in person or by telephone or, instead, shall provide to the court a written report concerning the proposed ward for review at the hearing.

54.50(3)(d) (d) If the court appoints a temporary guardian and if the ward, his or her counsel, the guardian ad litem, or an interested party requests, the court shall order a rehearing on the issue of appointment of the temporary guardian within 10 calendar days after the request. If a rehearing is requested, the temporary guardian may take no action to expend the ward’s assets, pending a rehearing, without approval by the court.

54.50(4) (4) Cessation of powers. The duties and powers of the temporary guardian cease upon the issuing of letters of permanent guardianship, the expiration of the time period specified in sub. (2), or if the court sooner determines that any situation of the ward that was the cause of the temporary guardianship has terminated. Upon the termination, a temporary guardian of the person shall file with the court any report that the court requires. A temporary guardian of the estate shall, upon the termination, account to the court and deliver to the person entitled the ward’s estate over which the temporary guardian of the estate has had control. Any action that has been commenced by the temporary guardian may be prosecuted to final judgment by the successor or successors in interest, if any.

54.50 History History: 2005 a. 387 ss. 100, 368, 372.

54.52 54.52 Standby guardianship.