Wisconsin Statutes 54.40 – Guardian ad litem; appointment; duties; termination
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Terms Used In Wisconsin Statutes 54.40
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- in writing: includes any representation of words, letters, symbols or figures. See Wisconsin Statutes 990.01
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(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.
(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.
(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.
(4) General duties. A guardian ad litem shall do all of the following:
(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.
(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.
(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).
(d)
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.
2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.
3. Report to the court concerning whether or not the proposed ward’s advance planning is adequate to preclude the need for guardianship.
(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).
(e) Request that the court order additional medical, psychological, or other evaluation, if necessary.
(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.
(g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner’s counsel, if any.
(h) Attend all court proceedings related to the guardianship.
(i) Present evidence concerning the best interests of the proposed ward or ward, if necessary.
(j) Report to the court on any matter that the court requests.
(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.
(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.