Guardianship Law in Wisconsin

Milwaukee Estate Planning Law Firm

There are times in a person’s life when help is required to make decisions regarding health care or financial matters. For many people, executing health care powers of attorney and general durable powers of attorney will ensure that help is available when needed. However, if these documents are missing, defective, or cannot be prepared, a guardianship proceeding may be necessary.

Specifically, a guardianship is necessary in situations where someone does not have valid powers of attorney and cannot effectively receive and evaluate information such that they cannot make health care or financial decisions for themselves. This can be when a developmentally disabled child turns 18, when a person has an accident and is unable to communicate, or when an individual cannot communicate or take care of himself or herself due to frailties associated with the aging process. When an individual would be at serious risk of harm to themselves or others if left without a caregiver, a protective placement (typically in a nursing home) is also necessary.

In 2006, the Wisconsin Legislature revised the statutes regarding guardianship and protective placement. As a result, major changes were made to the procedures and timelines involved with protective placement and guardianship actions. While the changes were intended to allow more individuals to file guardianship petitions pro se, they have instead created a more complicated process that requires careful monitoring of the form and contents of documents and strict compliance with applicable deadlines.

The following provides an overview of guardianship and protective placement proceedings under Wisconsin’s new law:

• When can a Petition for Permanent Guardianship be brought? In the past, parents of a developmentally disabled child had to wait until the child turned 18 before filing for guardianship. Now, a petition may be brought when an individual is aged 17 and 9 months. This allows the guardianship to be in place at the time the individual turns 18. All other guardianship actions may be brought at any time the petitioner believes the individual meets the requirements for guardianship.
• Who can serve as Guardian? A Guardian must be a person who is competent and over the age of 18. For developmentally disabled individuals turning 18, parents are preferred. In the past, only married parents could be co-guardians. Now, non-married individuals can be appointed as co-guardians, subject to any condition the court imposes. If there is no one available to serve as guardian, a corporate or volunteer guardian may be appointed.
• What rights does an individual under guardianship retain? While guardianships under the old law often removed all of an individual’s rights, the new guardianship laws allow the court to remove only those rights the individual is unable to exercise. The individual retains some rights in full, can exercise others with consent of the guardian, and others are transferred completely to the guardian.
• What if a protective placement order is also necessary? Protective placement is required when an individual cannot take care of himself or herself and requires some assistance and oversight with the activities of daily living. If a protective placement is necessary, a separate petition for the protective placement must accompany the petition for guardianship. For a person with dementia or rehabilitating from an accident, the most common placement is in a nursing home.
• What if the petition is dismissed? If the petition is dismissed without a guardian being appointed, the petitioner is liable for any fees due the guardian ad litem and the proposed ward’s legal counsel.
• May a Guardian of the estate be compensated from the individual’s assets? A guardian shall receive suitable compensation for servicessubject to the court’s approval. A court order is necessary before payment to the guardian may be made. In addition, a guardian of the estate must understand that an inventory and annual accountings must be filed with the court detailing (among other things) compensation paid to the guardian.
• What powers does a Guardian have? A guardian of the person makes decisions regarding a person’s placement, medical decisions, and vocational and social interactions. A guardian of the estate manages a person’s money and assets. The order granted by the court will indicate the specific powers the guardian has. Any power not granted to the guardian cannot be exercised without a separate court order (for example, a guardian cannot sell real estate without court approval).

Although recent changes to the guardianship laws were designed to make it easier for individuals to petition the court on their own, the reality is that it has become harder to do so. The attorneys at Moertl, Wilkins, and Campbell, S.C. can help. If assistance is needed to obtain a guardian of the person or of the estate for an individual, we can manage the process to make sure it is done efficiently and correctly. We can also provide perspective as guardian ad litem, as our attorneys are often appointed by the court to serve in this capacity. Or, if there is a disagreement regarding the guardianship by the individual or any of the family members, we can represent the dissenting party to present that person’s position to the court.

LIMITATIONS AND DISCLAIMER

This brochure is in no way intended to be a complete explanation of the relevant laws. The laws often change and each individual’s situation is unique. This brochure will provide an initial understanding of the basic issues and concepts. You should carefully evaluate your particular situation and consult the appropriate legal advisor prior to taking any action.