Guardianship Basics in Wisconsin
In laymen’s terms, a guardianship is when a person (the guardian) is appointed by the court to make decisions or take action on behalf of another person (the ward). In the Wisconsin Statutes, a guardian is defined in Chapter 54 as:
A person appointed by a court under s. 54.10 to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of an individual found incompetent or a spendthrift or to manage the income and assets of a minor. A person’s assets may include, by court order, digital property, as defined in s. 711.03 (10).
There are two are two types of guardians in Wisconsin: 1) guardians of the person, and 2) guardians of the estate.
A guardian of the person is often granted the authority by the court to make decisions regarding the healthcare, residence, travel, work, school, and other determinations regarding the custody and care of the individual. The court decides the scope of the guardian’s authority (i.e. what decisions they are allowed to make). The Wisconsin Circuit Court form Determination and Order on Guardianship sets forth a list of specific types of rights and powers that may be removed from an individual and assigned to the guardian. See Wis. Stat. § 54.25.
A guardian of the estate makes financial decisions and takes financial action on behalf of the ward. This includes applying for benefits, retaining property, investing and reinvesting proceeds of sales, settling claims, and many other duties and responsibilities. Wis. Stats. §§ 54.19 and 54.20 outline the scope of these duties and powers in detail.
To have someone appointed as a guardian, a person or entity must petition the circuit court. The petition is filed in the county of residence of the proposed ward or in the county in which the proposed ward is physically present. Additionally, the petitioner must provide notice to legally interested persons as required in the statutes, a physician or psychologist must complete a report regarding the individual’s competency, a guardian ad litem must be appointed to represent the best interest of the individual and perform his or her statutory duties and file a report, and a hearing must be held, among other things. If any party opposes the guardianship or the scope of the guardianship set forth in the petition, the hearing will be a “contested hearing”. A contested hearing involves evidence being presented to the court.
Guardianships can easily become complicated matters in which legal counsel is valuable. If you are considering filing a guardianship action for a loved one, please contact me for a consultation to discuss how I can assist you.