Terms Used In Wisconsin Statutes 54.10

  • 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.
  • 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
   (1)    A court may appoint a guardian of the estate for an individual if the court determines that the individual is a minor. Except as provided in ss. 48.427, 48.831, 48.977, and 48.978, an appointment of a guardian of the person of a minor shall be conducted under the procedures specified in s. 48.9795.
   (2)   
      (a)    A court may appoint a guardian of the estate for an individual if the court finds by clear and convincing evidence that the individual is aged at least 18 years and is a spendthrift.
      (b)    In appointing a guardian of the estate under this subsection or determining what powers are appropriate for the guardian of the estate to exercise under s. 54.18 or 54.20, the court shall consider all of the following:
         1.    The report of the guardian ad litem, as required in s. 54.40 (4).
         2.    The medical or psychological report provided under s. 54.36 (1) and any additional medical, psychological, or other evaluation ordered by the court under s. 54.40 (4) (e) or offered by a party and received by the court.
         3.    Whether other reliable resources are available to provide for the individual’s personal needs or property management, and whether appointment of a guardian of the estate is the least restrictive means to provide for the individual’s need for a substitute decision maker.
         4.    The preferences, desires, and values of the individual with regard to personal needs or property management.
         5.    The nature and extent of the individual’s care and treatment needs and property and financial affairs.
         6.    Whether the individual’s situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
         7.    The extent of the demands placed on the individual by his or her personal needs and by the nature and extent of his or her property and financial affairs.
         8.    Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.
         9.    Whether the effect on the individual’s evaluative capacity is likely to be temporary or long term, and whether the effect may be ameliorated by appropriate treatment.
         9m.    Whether any alternatives to guardianship, including supported decision-making under ch. 52, have been attempted, and, if applicable, the degree to which they have been attempted, the length of time they have been attempted, and whether they have been attempted in a manner sufficient to demonstrate that alternatives to guardianship are insufficient to enable the individual to adequately exercise the right or rights in question.
         10.    Other relevant evidence.
      (c)    Before appointing a guardian of the estate under this subsection or determining what powers are appropriate for the guardian of the estate to exercise under s. 54.18 or 54.20, the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual.
      (d)    In appointing a guardian of the estate under this subsection, the court shall authorize the guardian of the estate to exercise only those powers under ss. 54.18 and 54.20 that are necessary to provide for the individual’s personal needs and property management and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention.
   (3)   
      (a)    A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual based on a finding that the individual is incompetent only if the court finds by clear and convincing evidence that all of the following are true:
         1.    The individual is aged at least 17 years and 9 months.
         2.    For purposes of appointment of a guardian of the person, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.
         3.    For purposes of appointment of a guardian of the estate, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that any of the following applies:
            a.    The individual has property that will be dissipated in whole or in part.
            b.    The individual is unable to provide for his or her support.
            c.    The individual is unable to prevent financial exploitation.
         4.    The individual’s need for assistance in decision making or communication is unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, a supported decision-making agreement under ch. 52, or other means that the individual will accept.
      (b)    Unless the proposed ward is unable to communicate decisions effectively in any way, the determination under par. (a) may not be based on mere old age, eccentricity, poor judgment, physical disability, or the existence of a supported decision-making agreement.
      (c)    In appointing a guardian under this subsection, declaring incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the court shall consider all of the following:
         1.    The report of the guardian ad litem, as required in s. 54.40 (4).
         2.    The medical or psychological report provided under s. 54.36 (1) and any additional medical, psychological, or other evaluation ordered by the court under s. 54.40 (4) (e) or offered by a party and received by the court.
         3.    Whether the proposed ward has engaged in any advance planning for financial and health care decision making that would avoid guardianship, including by executing a durable power of attorney under ch. 244, a power of attorney for health care, as defined in s. 155.01 (10), a trust, or a jointly held account.
         4.    Whether other reliable resources are available to provide for the individual’s personal needs or property management, and whether appointment of a guardian is the least restrictive means to provide for the individual’s need for a substitute decision maker.
         5.    The preferences, desires, and values of the individual with regard to personal needs or property management.
         6.    The nature and extent of the individual’s care and treatment needs and property and financial affairs.
         7.    Whether the individual’s situation places him or her at risk of abuse, exploitation, neglect, or violation of rights.
         8.    Whether the individual can adequately understand and appreciate the nature and consequences of his or her impairment.
         9.    The individual’s management of the activities of daily living.
         10.    The individual’s understanding and appreciation of the nature and consequences of any inability he or she may have with regard to personal needs or property management.
         11.    The extent of the demands placed on the individual by his or her personal needs and by the nature and extent of his or her property and financial affairs.
         12.    Any physical illness of the individual and the prognosis of the individual.
         13.    Any mental disability, alcoholism, or other drug dependence of the individual and the prognosis of the mental disability, alcoholism, or other drug dependence.
         14.    Any medication with which the individual is being treated and the medication’s effect on the individual’s behavior, cognition, and judgment.
         15.    Whether the effect on the individual’s evaluative capacity is likely to be temporary or long term, and whether the effect may be ameliorated by appropriate treatment.
         16.    Other relevant evidence.
      (d)    Before appointing a guardian under this subsection, declaring incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual’s competency to exercise legal rights and may obtain assistance in the manner provided in s. 55.11 (1) whether or not protective placement is made.
      (e)    In appointing a guardian under this subsection, the court shall authorize the guardian to exercise only those powers under ss. 54.18, 54.20, and 54.25 (2) (d) that are necessary to provide for the individual’s personal needs and property management and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention.
      (f)   
         1.    If the court appoints a guardian of the person under this subsection, the court shall determine if, under 18 U.S. Code § 922 (g) (4), the individual is prohibited from possessing a firearm. If the individual is prohibited, the court shall order the individual not to possess a firearm, order the seizure of any firearm owned by the individual, and inform the individual of the requirements and penalties under s. 941.29.
         2.   
            a.    If a court orders under subd. 1. an individual not to possess a firearm, the individual may petition that court or the court in the county where the individual resides to cancel the order.
            b.    The court considering the petition under subd. 2. a. shall grant the petition if the court determines that the circumstances regarding the appointment of a guardian under this subsection and the individual’s record and reputation indicate that the individual is not likely to act in a manner dangerous to public safety and that the granting of the petition would not be contrary to public interest.
            c.    If the court grants the petition under subd. 2. b., the court shall cancel the order under subd. 1. and order the return of any firearm ordered seized under subd. 1.
         3.    In lieu of ordering the seizure under subd. 1., the court may designate a person to store the firearm until the order under subd. 1. is canceled under subd. 2. c.
         4.    If the court orders under subd. 1. an individual not to possess a firearm or cancels under subd. 2. c. an order issued under subd. 1., the court clerk shall notify the department of justice of the order or cancellation and provide any information identifying the individual that is necessary to permit an accurate firearms restrictions record search under s. 175.35 (2g) (c), a background check under s. 175.60 (9g) (a), or an accurate response under s. 165.63. No other information from the individual’s court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose information provided under this subdivision only to respond to a request under s. 165.63, as part of a firearms restrictions record search under s. 175.35 (2g) (c), under rules the department of justice promulgates under s. 175.35 (2g) (d), or as part of a background check under s. 175.60 (9g) (a).
   (4)   If the court appoints both a guardian of the person and a guardian of the estate for an individual other than an individual found to be a spendthrift, the court may appoint separate persons to be guardian of the person and of the estate, or may appoint one person to act as both.
   (5)   The court may appoint coguardians of the person or coguardians of the estate, subject to any conditions that the court imposes.

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