The decision to become a guardian for either a minor or an adult is a very serious one. You will be taking on responsibility for someone else, and it is essential to know what the relevant law is, what your powers will be and what is expected of you.
Wisconsin guardianship law has no updates or changes coming in 2023, but it can be a complex undertaking. It should ideally be done with the assistance of an experienced Wisconsin guardianship attorney who can explain what the process entails and what you are expected to do on a regular basis. Read on to learn more about Wisconsin guardianship law in 2023.
Guardianship of a Minor in Wisconsin
You can petition the court for three types of guardianship in Wisconsin. Emergency, temporary or permanent. You can also ask for guardianship of the person and/or guardianship of the estate.
Emergency Guardianship of a Minor
Emergency guardianship of a minor is used when there is some type of emergency requiring a family member or close friend to step forward and care for the child or children in proposed wards. It can take some time to get a court date for other types of guardianships; with an emergency guardianship petition, a proposed guardian can quickly get temporary guardianship over a minor for 60 days. Usually, you will see these types of guardianship used when the parent or parents experience some medical crisis that means they have to turn over short-term care of the children to a trusted friend or family member. This is a limited type of guardianship, and the guardian only has the powers necessary to care for the child or children for the period of time the emergency guardianship is granted.
Temporary Guardianship of a Minor
It is used when only short-term guardianship is needed. Temporary guardianships require a court hearing and last for 60 days and can be extended another 60 days upon good reason shown.
Permanent Guardianship of a Minor
This title can be confusing because guardianship usually ends when the minor turns 18. Still, the powers of a permanent guardian can be complete and last until the child becomes an adult.
Estate vs. Person
For minors and adults, you can have guardianship of the person, the estate, or both. Usually, permanent petitions for guardianship ask for both. The guardians of the person have decision-making authority over the person’s daily life. They can make decisions about where they live, where they go to school and other daily activities. A guardianship of the estate gives the guardian power over any money the minor has or any benefits they receive. One example would be if the minor has a trust fund or gets social security checks because of the death of a parent. If guardianship of the estate is granted, annual accounting will be made by the guardians to the court.
It is important to note that the guardianship of a minor does not override parental rights. Guardianship was created with the idea that family reunification was possible, which is why it is guardianship, not adoption. In certain circumstances, the court will terminate parental rights (for example, in abuse cases), and then the guardianship will be the only thing left, with no challenges. A guardian can petition to adopt if parental rights are terminated, or the parents agree and voluntarily terminate.
Does a Guardian in Wisconsin Get Paid?
For children in the foster care system, subsidized guardianship is sometimes available, where the state will help cover costs associated with schooling, health care, and even family vacations. The subsidy is used when the reunification of the family is not possible. In cases where a corporate guardian is appointed (usually in adult cases), the corporate guardians will pay themselves a fee out of the individual’s estate until it is depleted. They can then petition the state or county of residence for their fees.
Guardianship of an Adult in Wisconsin
Naturally, guardianship over an adult is much more complicated and can be challenging to obtain. Usually, guardianship is asked for because the adult has been found incompetent by a licensed physician or has a significant disability that makes it impossible for the adult to make good decisions for their own welfare.
In the event that the proposed ward contests guardianship, a hearing will be held to determine if guardianship is truly necessary. The court will assign a guardian ad litem and an adversary attorney for the proposed ward to ensure that the proposed ward’s rights are adequately protected during the process. While the guardian ad litem is not there to take sides, they will evaluate the situation and interview all parties and make a recommendation to the court.
Modifying Guardianship
Permanent guardianship of an adult can last indefinitely. Other family members or friends of the adult ward can petition at any time, for a good reason shown, to eliminate or change the guardianship, so that is something to keep in mind when requesting guardianship. Take the time to discuss possible objection parties with your Wisconsin guardianship attorney so that you can be as prepared as possible for possible contests in court after the guardianship is granted.
Things to Consider
The decision to become a guardian of either an adult or a minor is generous, but it comes with its own set of challenges and expectations. Once you agree to guardianship, you will have the responsibility to directly care for the ward or acquire appropriate care. If you are the guardian of the state as well, you will be responsible for the ethical management of their money and will be required to submit annual accountings to the court explaining what you spent and why.
There have yet to be any updates to the Wisconsin guardianship law set to take effect in 2023. However, it is still strongly recommended that you consult an experienced Wisconsin guardianship attorney who can evaluate your particular situation and goals and advise you on what steps should be taken. If you are considering becoming a guardian in Wisconsin, feel free to call O’Flaherty Law; we would be happy to help you.
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