LRB-1312/2
GMM:jlg&mfd:jf
1997 - 1998 LEGISLATURE
January 15, 1998 - Introduced by Representatives Kelso, Powers, Hahn, Huebsch,
Jensen, F. Lasee, M. Lehman, Skindrud and Ryba, cosponsored by Senators
Huelsman, Darling and Roessler. Referred to Committee on Children and
Families.
AB713,1,6
1An Act to repeal 880.36 (3) and 880.36 (4);
to amend 48.023 (intro.), 48.065 (3)
2(g), 48.14 (2) (b), 48.235 (1) (c), 48.299 (4) (a), 48.299 (4) (b), 48.62 (2), 48.831 (1)
3and 880.36 (1); and
to create 48.978 and 808.075 (4) (a) 12. of the statutes;
4relating to: the designation by a parent or the appointment by a court of a
5standby guardian of a child whose duty and authority as standby guardian
6begins on the incapacity, death, or debilitation and consent, of the parent.
Analysis by the Legislative Reference Bureau
Under current law, the court assigned to exercise jurisdiction under the
children's code (juvenile court) may appoint a guardian of the person or estate, or
both, of a child. Currently, a guardian of a child has the duty and authority to make
important decisions in matters having a permanent effect on the life and
development of the child and the duty to be concerned about the general welfare of
the child. Current law permits a parent to nominate by will a guardian of the person
or estate, or both, of his or her child and permits a parent to petition the juvenile court
for the appointment of a standby guardian of the person or estate, or both, of his or
her child. Under current law, a standby guardian of a child assumes the duty and
authority of guardianship of the child on the death of the child's parents or on a
determination that the child's parents are incapable of exercising guardianship of
the child, subject to confirmation by the juvenile court within 60 days after the
standby guardian assumes that duty and authority. Currently, a standby
guardianship of a child is not applicable so long as the child has a parent who is
willing and capable of exercising guardianship of the child.
This bill provides 2 new procedures for the appointment of a standby guardian
to assume the duty and authority of guardianship of a child on the incapacity, death,
or debilitation and consent, of a parent of the child. The bill defines "incapacity" as
a person's chronic and substantial inability, as a result of mental impairment, to care
for his or her child and "debilitation" as a person's chronic and substantial inability,
as a result of physical impairment, to care for his or her child.
Specifically, under the first procedure provided in the bill, a parent may petition
the juvenile court for the appointment of a standby guardian of the person or estate,
or both, of his or her child to assume the duty and authority of standby guardianship
on the incapacity, death, or debilitation and consent, of the parent. The parent may
also include in the petition the nomination of an alternate standby guardian in case
the person nominated as standby guardian is unwilling or unable to exercise
guardianship or the court determines that appointment of that person as guardian
is not in the child's best interest. Under this procedure, subject to certain exceptions,
the other parent must join in the petition and the petition must state, among other
things, that there is a significant risk of the parent becoming incapacitated or
debilitated or dying within 2 years after the filing of the petition and that the child
has no other parent who is willing and able to exercise the duty and authority of
guardianship. If the juvenile court makes those findings and determines that
appointment as standby guardian of the person nominated as standby guardian
would be in the best interests of the child, after considering the suitability of the
person, his or her willingness and ability to serve as guardian and the wishes of the
child, the juvenile court must enter an order appointing that person as standby
guardian of the child.
The standby guardianship then goes into effect on the receipt by the standby
guardian of a determination by the parent's attending physician of the parent's
incapacity, a certificate of the parent's death, or a determination by the parent's
attending physician of the parent's debilitation and the written consent of the parent
to the beginning of the standby guardianship. The standby guardianship is
suspended on the receipt by the standby guardian of a determination by the parent's
attending physician that the parent has recovered or is in remission from his or her
incapacity or debilitation. A standby guardianship that is suspended begins again
on the receipt by the standby guardian of a subsequent determination of incapacity,
certificate of death or determination of debilitation and consent. The parent may
revoke the standby guardianship at any time before the guardianship begins by
executing a written revocation, filing it with the juvenile court and notifying the
standby guardian. After the standby guardianship begins, however, revocation of
the standby guardianship by the parent is subject to a determination by the juvenile
court that the revocation is in the best interests of the child. Similarly, a standby
guardian may unilaterally renounce his or her appointment as standby guardian at
any time before the standby guardianship begins, but may resign as standby
guardian after the standby guardianship begins only if the juvenile court determines
that the resignation is in the best interests of the child. The appointment of a standby
guardian under this procedure does not, in itself, divest a parent of any parental
rights.
Under the 2nd procedure provided in the bill, a parent may, without first
petitioning the juvenile court, designate a standby guardian of the person or estate,
or both, of his or her child to assume the duty and authority of standby guardianship
on the incapacity, death, or debilitation and consent, of the parent. Under this
procedure, the parent signs a written designation in the presence of 2 witnesses 18
years of age or over, neither of whom may be the standby guardian. The written
designation must state, among other things, the duties and authority that the parent
wishes the standby guardian to exercise and that the parent intends for the standby
guardianship to take effect on his or her incapacity, death, or debilitation and
consent, or on whichever occurs first. The parent may also designate an alternate
standby guardian in case the standby guardian is unwilling or unable to exercise
guardianship.
The standby guardianship then goes into effect on the receipt by the standby
guardian of a determination by the parent's attending physician of the parent's
incapacity, a certificate of the parent's death, or a determination by the parent's
attending physician of the parent's debilitation and the written consent of the parent
to the beginning of the standby guardianship. The standby guardian must then file
a petition with the juvenile court for his or her appointment as standby guardian
within 180 days after receipt of those documents or else the standby guardianship
ends. The petition must state basically the same information as a petition by a
parent for the appointment of a standby guardian, except that a petition by a standby
guardian must state that the parent has become incapacitated, died, or has become
debilitated and has consented to the beginning of the standby guardianship. In
addition, the petition must be accompanied by the parent's written designation and
the determination of incapacity, death certificate, or determination of debilitation
and consent, whichever is applicable. If the juvenile court determines that
appointment as standby guardian of the person designated as standby guardian
would be in the best interests of the child, after considering the suitability of the
person, his or her willingness and ability to serve as guardian and the wishes of the
child, and finds that the parent has designated the standby guardian in accordance
with the bill, that the standby guardian has received the determination of incapacity,
death certificate, or determination of debilitation and the parent's consent, and that
the child has no other parent who is willing and able to exercise the duty and
authority of guardianship, the juvenile court must enter an order appointing that
person as standby guardian of the child.
The standby guardianship is suspended on the receipt by the standby guardian
of a determination by the parent's attending physician that the parent has recovered
or is in remission from his or her incapacity or debilitation. A standby guardianship
that is suspended begins again on the receipt by the standby guardian of a
subsequent determination of incapacity, certificate of death or determination of
debilitation and consent. The parent may revoke the standby guardianship before
the filing of the petition by executing a written revocation and notifying the standby
guardian, executing a subsequent written designation of a standby guardian or
verbally revoking the standby guardianship in the presence of 2 witnesses. After the
filing of the petition, however, revocation of the standby guardianship by the parent
is subject to a determination by the juvenile court that the revocation is in the best
interests of the child. Similarly, a standby guardian may unilaterally renounce his
or her designation as standby guardian at any time before the filing of the petition,
but may renounce that designation after the filing of the petition or may resign as
standby guardian after judicial appointment only if the juvenile court determines
that the renunciation or resignation would be in the best interest of the child.
Finally, under either procedure, the appointment of a standby guardian does not, in
itself, divest a parent of any parental rights.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB713, s. 1
1Section
1. 48.023 (intro.) of the statutes is amended to read:
AB713,4,7
248.023 Guardianship. (intro.) Except as limited by an order of the court
3under s. 48.977 (5) (b)
or 48.978 (6) (b) 2., a person appointed by the court to be the
4guardian of a child under this chapter has the duty and authority to make important
5decisions in matters having a permanent effect on the life and development of the
6child and the duty to be concerned about the child's general welfare, including but
7not limited to:
AB713, s. 2
8Section
2. 48.065 (3) (g) of the statutes is amended to read:
AB713,4,109
48.065
(3) (g) Conduct hearings, make findings or issue orders in proceedings
10under s. 48.977
or 48.978.
AB713, s. 3
11Section
3. 48.14 (2) (b) of the statutes is amended to read:
AB713,4,1512
48.14
(2) (b) The appointment and removal of a guardian of the person for a
13child under ss. 48.427, 48.428, 48.43, 48.831, 48.832, 48.839 (4) (a)
and, 48.977
and
1448.978 and ch. 880 and for a child found to be in need of protection or services under
15s. 48.13 because the child is without parent or guardian.
AB713, s. 4
1Section
4. 48.235 (1) (c) of the statutes is amended to read:
AB713,5,52
48.235
(1) (c) The court shall appoint a guardian ad litem for any child who is
3the subject of a proceeding to terminate parental rights, whether voluntary or
4involuntary, for a child who is the subject of a contested adoption proceeding and for
5a child who is the subject of a proceeding under s. 48.977
or 48.978.
AB713, s. 5
6Section
5. 48.299 (4) (a) of the statutes is amended to read:
AB713,5,97
48.299
(4) (a) Chapters 901 to 911 shall govern the presentation of evidence at
8the fact-finding hearings under ss. 48.31, 48.42
and, 48.977 (4) (d)
and 48.978 (2) (e)
9and (3) (f) 2.
AB713, s. 6
10Section
6. 48.299 (4) (b) of the statutes is amended to read:
AB713,5,2411
48.299
(4) (b) Except as provided in s. 901.05, neither common law nor
12statutory rules of evidence are binding at a hearing for a child held in custody under
13s. 48.21, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a
14hearing about changes in placement, revision of dispositional orders, extension of
15dispositional orders or termination of guardianship orders entered under s. 48.977
16(4) (h) 2. or (6)
or 48.978 (2) (j) 2. or (3) (g). At those hearings, the court shall admit
17all testimony having reasonable probative value, but shall exclude immaterial,
18irrelevant or unduly repetitious testimony or evidence that is inadmissible under s.
19901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial
20guarantees of trustworthiness. The court shall give effect to the rules of privilege
21recognized by law. The court shall apply the basic principles of relevancy, materiality
22and probative value to proof of all questions of fact. Objections to evidentiary offers
23and offers of proof of evidence not admitted may be made and shall be noted in the
24record.
AB713, s. 7
25Section
7. 48.62 (2) of the statutes is amended to read:
AB713,6,15
148.62
(2) A relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a)
2or a guardian of a child, who provides care and maintenance for a child, is not
3required to obtain the license specified in this section. The department, county
4department or licensed child welfare agency as provided in s. 48.75 may issue a
5license to operate a foster home or a treatment foster home to a relative who has no
6duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster
7home or treatment foster home for a specific child who is either placed by court order
8or who is the subject of a voluntary placement agreement under s. 48.63. The
9department, a county department or a licensed child welfare agency may, at the
10request of a guardian appointed under s. 48.977
or 48.978 or ch. 880, license the
11guardian's home as a foster home or treatment foster home for the guardian's minor
12ward who is living in the home and who is placed in the home by court order.
13Relatives with no duty of support and guardians appointed under s. 48.977
or 48.978 14or ch. 880 who are licensed to operate foster homes or treatment foster homes are
15subject to the department's licensing rules.
AB713, s. 8
16Section
8. 48.831 (1) of the statutes is amended to read:
AB713,6,2317
48.831
(1) Type of guardianship. This section may be used for the appointment
18of a guardian of a child who does not have a living parent if a finding as to the
19adoptability of a child is sought. Except as provided in
s. ss. 48.977
and 48.978, ch.
20880 applies to the appointment of a guardian for a child who does not have a living
21parent for all other purposes. An appointment of a guardian of the estate of a child
22who does not have a living parent shall be conducted in accordance with the
23procedures specified in ch. 880.
AB713, s. 9
24Section
9. 48.978 of the statutes is created to read:
AB713,7,2
148.978 Appointment or designation of standby guardian of a child. (1) 2Definitions. In this section:
AB713,7,103
(a) "Attending physician" means a physician licensed under ch. 448 who has
4primary responsibility for the treatment and care of a parent who has filed a petition
5under sub. (2) (a) or made a written designation under sub. (3) (a) or, if more than
6one physician has responsibility for the treatment and care of that parent, if a
7physician is acting on behalf of a physician who has primary responsibility for the
8treatment and care of that parent or if no physician is responsible for the treatment
9and care of that parent, "attending physician" means any physician licensed under
10ch. 448 who is familiar with the medical condition of that parent.
AB713,7,1211
(b) "Debilitation" means a person's chronic and substantial inability, as a result
12of a physical illness, disease, impairment or injury, to care for his or her child.
AB713,7,1413
(c) "Incapacity" means a person's chronic and substantial inability, as a result
14of a mental impairment, to care for his or her child.
AB713,7,23
15(2) Judicial appointment. (a)
Who may file petition. 1. A parent of a child may
16file a petition for the judicial appointment of a standby guardian of the person or
17estate or both of the child under this subsection. A parent may include in the petition
18the nomination of an alternate standby guardian for the court to appoint if the person
19nominated as standby guardian is unwilling or unable to serve as the child's
20guardian or if the court determines that appointment of the person nominated as
21standby guardian as the child's guardian is not in the best interests of the child.
22Subject to subds. 2. and 3., if a petition is filed under this subdivision, the petition
23shall be joined by each parent of the child.
AB713,8,224
2. If a parent of a child cannot with reasonable diligence locate the other parent
25of the child, the parent may file a petition under subd. 1. without the other parent
1joining in the petition and, if the parent filing the petition submits proof satisfactory
2to the court of that reasonable diligence, the court may grant the petition.
AB713,8,83
3. If a parent of a child can locate the other parent of the child, but that other
4parent refuses to join in the petition or indicates that he or she is unwilling or unable
5to exercise the duty and authority of guardianship, the parent may file a petition
6under subd. 1. without the other parent joining in the petition and, if the parent filing
7the petition submits proof satisfactory to the court of that refusal, unwillingness or
8inability, the court may grant the petition.
AB713,8,129
(b)
Contents of petition. A proceeding for the appointment of a standby
10guardian for a child under this subsection shall be initiated by a petition that shall
11be entitled "In the interest of .... (child's name), a person under the age of 18" and shall
12set forth with specificity all of the following:
AB713,8,1313
1. The name, birth date and address of the child.
AB713,8,1514
2. The names and addresses of the child's parent or parents, guardian and legal
15custodian.
AB713,8,1816
3. The name and address of the person nominated as standby guardian and,
17if the petitioner is nominating an alternate standby guardian, the name and address
18of the person nominated as alternate standby guardian.
AB713,8,2019
4. The duties and authority that the petitioner wishes the standby guardian
20to exercise.
AB713,8,2421
5. A statement of whether the duty and authority of the standby guardian are
22to become effective on the petitioner's incapacity, on the petitioner's death, or on the
23petitioner's debilitation and consent to the beginning of the duty and authority of the
24standby guardian, or on whichever occurs first.
AB713,9,3
16. A statement that there is a significant risk that the petitioner will become
2incapacitated or debilitated or die, as applicable, within 2 years after the date on
3which the petition is filed and the factual basis for that statement.
AB713,9,84
7. If a parent of the child cannot with reasonable diligence locate the other
5parent of the child, a statement that the child has no parent, other than the
6petitioner, who is willing and able to exercise the duties and authority of
7guardianship and who, with reasonable diligence, can be located and a statement of
8the efforts made to locate the other parent.
AB713,9,159
8. If a parent of the child can locate the other parent of the child, but that other
10parent refuses to join in the petition or indicates that he or she is unwilling or unable
11to exercise the duty and authority of guardianship, a statement that the child has
12no parent, other than the petitioner, who is willing and able to exercise the duty and
13authority of guardianship and a statement that the nonpetitioning parent has
14refused to join in the petition or has indicated that he or she is unwilling or unable
15to exercise the duty and authority of guardianship.
