Wisconsin Statutes 54.46 – Disposition of petition
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After the hearing under s. 54.44, the court shall dispose of the case in one of the following ways:
Terms Used In Wisconsin Statutes 54.46
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- 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.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Minor: means a person who has not attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "minor" does not include a person who has attained the age of 17 years. 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
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- seal: includes the word "seal" the letters "L S" and a scroll or other device intended to represent a seal, if any is affixed in the proper place for a seal, as well as an impression of a seal on the instrument. See Wisconsin Statutes 990.01
- 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
- Venue: The geographical location in which a case is tried.
(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:
1. Contrary to the allegations of the petition, the proposed ward is not any of the following:
a. Incompetent.
b. A spendthrift.
c. A minor.
2. Advance planning by the ward, as specified in s. 54.10 (3) (c) 3., renders guardianship unnecessary.
3. The elements of the petition are unproven.
(b) The court may also consider an application by the proposed ward for the appointment of a conservator under s. 54.76.
(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:
(a) The foreign guardian is not presently in good standing with the foreign court.
(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.
(c) The transfer of the foreign guardianship from the foreign jurisdiction is not in the best interests of the foreign ward.
(1r) Receipt and acceptance of a foreign guardianship.
(a) The court shall grant a petition for receipt and acceptance of a foreign guardianship if the court finds all of the following:
1. That the foreign guardian is presently in good standing with the foreign court.
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.
3. That the transfer of the foreign guardianship from the foreign jurisdiction is in the best interests of the foreign ward.
(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:
1. Surety bond requirements.
2. The appointment of a guardian ad litem.
3. Periodic reporting requirements.
4. Any other provisions necessary to conform the foreign guardianship order to the requirements of this chapter and other requirements of this state.
(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.
(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:
1. Delay the effective date of the receipt and acceptance of the foreign guardianship.
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.
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.
4. Make other arrangements that the court determines are necessary to effectuate the receipt and acceptance of the foreign guardianship.
(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:
(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.
(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.
(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.
(3) Fees and costs.
(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:
1. The petitioner’s interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship.
2. The ability of the ward’s estate to pay the petitioner’s reasonable attorney fees and costs.
3. Whether the guardianship was contested and, if so, the nature of the contest.
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.
5. Any other factors that the court considers to be relevant.
(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.
(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.
(4) Bond.
(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.
(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:
1. At any time.
2. If so requested in a will in which a nomination appears.
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.
(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.
(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.