STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM -- 2006
Commission on Law and Aging, American Bar Association
In 2006, attorneys and other advocates for older people and peoples with disabilities in Wisconsin won a “triple crown” with the legislature's passage of three major pieces of legislation affecting guardianship, protective services and placement, and adult protection systems. The summary below was prepared by Betsy Abramson, a Wisconsin attorney and consultant, primarily in the area of abuse and neglect of vulnerable adults, with assistance from attorney Ellen Henningsen of the Coalition of Wisconsin Aging Groups' Elder Law Center and Jane A. Raymond, Wisconsin Department of Health and Family Services, Advocacy and Protection Systems Developer. While this summary focuses exclusively on the new guardianship law, for an overview of all three measures, see http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin\_Lawyer&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=59778.
The new guardianship law, 2005 Wisconsin Act 387 (SB 391) effective December 1, 2006, was the work of a great number of dedicated members of the Wisconsin State Bar's Elder Law Section and others for nearly a dozen years. The work of the Section in creating the draft was a reflection of decades of practice by attorneys who recognized the statute's many problems.
Their experience showed that the statute was badly organized, used antiquated terms and contained a “one legal standard fits all” regardless of whether guardianship of the person or guardianship of the estate was sought. It was also lacking in due process and presumed that all rights are removed unless a court specifically retains certain rights, failed to give appropriate deference to previously-executed powers of attorney, did not specify in sufficient detail the duties or responsibilities of guardians of the person or estate, and lacked procedure for removal of a guardian, reinstatement of rights and other post-appointment matters. Highlights of the new chapter (Chap. 54, Wis. Stats) include:
Definitions. The definitions section replaces antiquated terms such as “infirmities of aging” and adds new definitions for “least restrictive,” “serious and persistent mental illness,” “spendthrift” and “interested person.” Significantly, the law ceases referring to individuals as a noun -- “an incompetent” -- and instead more sensitively creates a definition for an “individual found incompetent,” as “an individual who has been adjudicated by a court as meeting the requirements of sec. 54.10(3), Wis. Stats.”
Appointment Procedure. The new law greatly strengthens the due process protections for proposed wards by requiring the court, before appointing either a guardian of the person or guardian of the estate, to find that there is no less restrictive means of meeting the need for assistance. Because there are different reasons for appointing the two different types of guardian (guardian of the person and guardian of the estate) the provisions create different standards for the two different types of guardians.
The new law also will improve selection of a guardian, by listing new (additional) factors for a court to consider, including: whether a proposed ward had done any advance planning (e.g., a power of attorney, trust); whether appointment of a guardian is the least restrictive means of meeting the proposed ward's needs; the individual's preferences; the nature and extent of the individual's care and treatment needs as well as property and financial needs; whether the proposed ward is at risk of abuse, exploitation, neglect or violation of rights; whether the individual can adequately understand and appreciate the consequences of any impairment; the individual's management of activities of daily living; the individual's understanding and appreciation of the nature and consequences of any inability he or she may have regarding personal needs or property management; any medication and the effect on the individual's behavior, cognition and judgment; and whether the disability is likely to be temporary or permanent.
The court must appoint as guardian of the estate or person the agent under a previously executed durable power of attorney or power of attorney for health care, respectively, unless this would not be in the best interests of the proposed ward. The new law also reverses the former presumption about powers of attorney so that a court now must identify specific reasons why a guardian should be appointed despite the existence of a previously-executed power of attorney. Also, it requires a proposed guardian to submit a sworn and notarized statement to the court indicating whether he or she has ever been convicted of certain crimes, filed for or received bankruptcy protection, or had certain professional licenses or certificates suspended or revoked. The relevance of the proposed guardian's history will then be determined by the court.
The new statute then clearly and distinctly separates the duties from the powers, and identifies which of the latter require court approval. The statute makes these listings separate for a guardian of the estate and a guardian of the person. Highlights include a limited gifting provision (only after notice and court approval) and provisions related to consent to psychotropic medication, participation in research and experimental treatment. The law also provides procedures for transfers of foreign guardianship.
Additional protections are provided through required appointment of a guardian ad litem in more situations, e.g., temporary guardianships, any action to expand, review or terminate a guardianship or to review the conduct of a guardian. The new statute also lists the duties of a guardian ad litem, including interviewing the proposed guardian and/or stand-by guardian to determine fitness to serve and reviewing any existing powers of attorney, interviewing any previously appointed agent and reporting to the court whether a previously-executed power of attorney is adequate to preclude the need for guardianship and attend all court hearings.
In a change from current statute, the new statute makes it the petitioner's responsibility to ensure that the individual sought to be protected attends the hearing unless the guardian ad litem, after a personal interview with the individual, waives attendance and certifies in writing to the court why the individual person is unable to attend. This should not be done lightly. The guardian ad litem is required to consider the ability of the individual to understand and meaningfully participate, the effect of attendance on his or her physical or psychological health and the individual's wishes. If the individual is unable to attend only because of residency in a facility, physical inaccessibility or lack of transportation, the hearing must be moved, upon request, to where the individual resides.
The law also tightens up provisions related to the imposition of temporary guardianships. It specifies the process, requiring the appointment of a guardian ad litem in all cases. It requires a hearing, to be held no earlier than 48 hours after filing unless good cause is shown. The court must specify the powers delegated to a temporary guardian, and a temporary guardian may not sell real estate or expend more than $2,000 unless court approves and orders bond.
ABA Commission on Law and Aging,