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.
AB713,9,1616
9. A description of the child's income and assets, if any.
AB713,9,1817
10. A statement of whether the proceedings are subject to the uniform child
18custody jurisdiction act under ch. 822.
AB713,9,2019
11. A statement of whether the child may be subject to the federal Indian Child
20Welfare Act,
25 USC 1911 to
1963.
AB713,9,2321
(c)
Service of petition and notice. 1. The petitioner shall cause the petition and
22notice of the time and place of the hearing under par. (d) to be served on all of the
23following persons:
AB713,9,2424
a. The child if the child is 12 years of age or older.
AB713,9,2525
b. The child's guardian and legal custodian.
AB713,10,1
1c. The child's guardian ad litem.
AB713,10,22
d. The child's counsel.
AB713,10,43
e. The child's other parent, if that parent has not joined in the petition and if
4that parent can with reasonable diligence be located.
AB713,10,55
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
AB713,10,86
g. The person who is nominated as the standby guardian of the child in the
7petition and, if an alternate standby guardian is nominated in the petition, the
8person who is nominated as the alternate standby guardian.
AB713,10,179
2. Service shall be made by certified mail at least 7 days before the hearing or
10by personal service in the same manner as a summons is served under s. 801.11 (1)
11(a) or (b) at least 7 days before the hearing or, if with reasonable diligence a party
12specified in subd. 1. cannot be served by mail or by personal or substituted service,
13service shall be made by publication of a notice published as a class 1 notice under
14ch. 985. In determining which newspaper is likely to give notice as required under
15s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the
16residence of the relatives of the party, if known, or the last-known location of the
17party.
AB713,10,2318
(d)
Plea hearing. 1. A hearing to determine whether any party wishes to
19contest a petition filed under par. (a) shall take place on a date that allows reasonable
20time for the parties to prepare but is no more than 30 days after the filing of the
21petition. At the hearing, the nonpetitioning parties and the child, if he or she is 12
22years of age or over or is otherwise competent to do so, shall state whether they wish
23to contest the petition.
AB713,11,3
12. If the petition is not contested, the court may immediately proceed to a
2dispositional hearing under par. (g), unless an adjournment is requested under par.
3(g).
AB713,11,64
3. If the petition is contested, the court shall set a date for a fact-finding
5hearing under par. (e) that allows reasonable time for the parties to prepare but is
6no more than 30 days after the plea hearing.
AB713,11,97
(e)
Fact-finding hearing. The court shall hold a fact-finding hearing on the
8petition on the date set by the court under par. (d) 3. at which any party may present
9evidence relevant to any of the following issues:
AB713,11,1210
1. Whether there is a significant risk that the petitioner will become
11incapacitated or debilitated or die within 2 years after the date on which the petition
12was filed.
AB713,11,1413
2. Whether the child has any parent, other than the petitioner, who is willing
14and able to exercise the duty and authority of guardianship.
AB713,11,1615
3. If a parent cannot be located, whether the petitioner has made diligent
16efforts to locate that parent.
AB713,11,1817
4. If a parent has refused to join in the petition, whether that refusal is
18unreasonable.
AB713,11,2219
(f)
Required findings by court. If the court, at the conclusion of the fact-finding
20hearing, makes all of the following findings by clear and convincing evidence, the
21court shall immediately proceed to a dispositional hearing unless an adjournment
22is requested under par. (g):
AB713,11,2423
1. That there is a significant risk that the petitioner will become incapacitated
24or debilitated or die within 2 years after the date on which the petition was filed.
AB713,12,2
12. That the child has no parent, other than the petitioner, who is willing and
2able to exercise the duty and authority of guardianship.
AB713,12,43
3. That, if a parent cannot be located, the petitioner has made diligent efforts
4to locate that parent.
AB713,12,65
4. That, if a parent has refused to join in the petition, the refusal was
6unreasonable.
AB713,12,107
5. That the person nominated as standby guardian is willing and able to act as
8standby guardian or, if that person is not so willing and able, that the person
9nominated as alternate standby guardian is willing and able to act as standby
10guardian.
AB713,12,1711
(g)
Dispositional hearing. The court shall hold a dispositional hearing on the
12petition at the time specified under par. (d) 2. or (e), at which any party may present
13evidence, including expert testimony, relevant to the disposition. If at the plea
14hearing or the fact-finding hearing a party requests an adjournment of the
15dispositional hearing, the court shall set a date for the dispositional hearing that
16allows reasonable time for the parties to prepare but is no more than 30 days after
17the plea hearing or fact-finding hearing.
AB713,12,2118
(h)
Dispositional factors. In determining the appropriate disposition under
19this par. (j), the best interests of the child shall be the prevailing factor to be
20considered by the court. In making a decision about the appropriate disposition, the
21court shall consider all of the following:
AB713,12,2322
1. Whether the person nominated as standby guardian or alternate standby
23guardian would be a suitable guardian of the child.
AB713,13,3
12. The willingness and ability of the person nominated as standby guardian or
2alternate standby guardian to serve as the child's guardian if the petitioner becomes
3incapacitated or debilitated or dies.
AB713,13,44
3. The wishes of the child.
AB713,13,75
(i)
Appearance by petitioner. If the petitioner is medically unable to appear at
6a hearing under par. (d), (e) or (g), the court may dispense with the petitioner's
7appearance, except on the motion of a party and for good cause shown.
AB713,13,108
(j)
Disposition. After receiving any evidence relating to the disposition, the
9court shall enter one of the following dispositions within 10 days after the
10dispositional hearing:
AB713,13,1311
1. A disposition dismissing the petition if the court determines that
12appointment of the person nominated as standby guardian or alternate standby
13guardian as the child's standby guardian is not in the best interests of the child.
AB713,13,1614
2. A disposition ordering that the person nominated as standby guardian or
15alternate standby guardian be appointed as the child's standby guardian if the court
16determines that such an appointment is in the best interests of the child.
AB713,13,1817
(k)
Guardianship order. A standby guardianship order under par. (j) 2. shall
18include all of the following:
AB713,13,2019
1. A statement of whether the standby guardianship is a full guardianship
20under sub. (6) (b) 1. or a limited guardianship under sub. (6) (b) 2.
AB713,13,2521
2. A statement of when the standby guardianship goes into effect, which may
22be on receipt by the standby guardian of a determination of the petitioner's
23incapacity, a certificate of the petitioner's death, or a determination of the
24petitioner's debilitation and the petitioner's written consent under par. (L) 3. that the
25standby guardianship go into effect.
AB713,14,5
1(L)
Commencement of duty and authority of court-appointed standby
2guardian. 1. If a standby guardianship order under par. (j) 2. provides that the duty
3and authority of a standby guardian are effective on the petitioner's incapacity, the
4duty and authority of the standby guardian shall begin on the receipt by the standby
5guardian of a copy of a determination of incapacity under sub. (4).
AB713,14,96
2. If a standby guardianship order under par. (j) 2. provides that the duty and
7authority of a standby guardian are effective on the petitioner's death, the duty and
8authority of the standby guardian shall begin on the receipt by the standby guardian
9of a copy of the certificate of the petitioner's death.
AB713,14,2110
3. If a standby guardianship order under par. (j) 2. provides that the duty and
11authority of a standby guardian are effective on the petitioner's debilitation and
12consent to the standby guardianship going into effect, the duty and authority of a
13standby guardian shall begin on the receipt by the standby guardian of a
14determination of debilitation under sub. (4) and a written consent to the beginning
15of that duty and authority signed by the petitioner in the presence of 2 witnesses 18
16years of age or over, neither of whom may be the standby guardian, and by the
17standby guardian. If the petitioner is physically unable to sign that written consent,
18another person 18 years of age or over who is not the standby guardian may sign the
19written consent on behalf of the petitioner and at the direction of the petitioner, in
20the presence of the petitioner and 2 witnesses 18 years of age or over, neither of whom
21may be the standby guardian.
AB713,15,422
4. The standby guardian shall file the determination of incapacity received
23under subd. 1., the certificate of death received under subd. 2., or the determination
24of debilitation and written consent received under subd. 3., whichever is applicable,
25with the court that entered the guardianship order within 90 days after the date on
1which the standby guardian receives that determination, certificate, or
2determination and written consent. If the standby guardian fails to file that
3determination, certificate, or determination and written consent with that court
4within those 90 days, the court may rescind the guardianship order.
AB713,15,85
(m)
Suspension of duty and authority of court-appointed standby guardian. 61. The duty and authority of a standby guardian appointed under par. (j) 2. shall be
7suspended on the receipt by the standby guardian of a copy of a determination of
8recovery or remission under sub. (5).
AB713,15,139
2. The standby guardian shall file the determination of recovery or remission
10received under subd. 1. with the court that entered the guardianship order within
1190 days after the date on which the standby guardian receives that determination.
12If the standby guardian fails to file that determination with that court within those
1390 days, the court may rescind the guardianship order.
AB713,15,1514
3. The duty and authority of a standby guardian that are suspended under
15subd. 1. shall begin again as provided in par. (L).
AB713,15,2016
(n)
Rescission of standby guardianship. 1. If at any time before the duty and
17authority of a standby guardian appointed under par. (j) 2. begin, the court finds that
18the findings of the court under par. (f) no longer apply or determines that the
19determination of the court under par. (j) 2. no longer applies, the court may rescind
20the guardianship order.
AB713,16,221
2. A person who is appointed as a standby guardian under par. (j) 2. may, at any
22time before his or her duty and authority as a standby guardian begin, renounce that
23appointment by executing a written renunciation, filing the renunciation with the
24court that issued the guardianship order and notifying the petitioner in writing of
1the renunciation. On compliance with this subdivision, the court shall rescind the
2guardianship order.
AB713,16,93
3. A person who is appointed as a standby guardian under par. (j) 2. may, at any
4time after his or her duty and authority as standby guardian begin, resign that
5appointment be executing a written resignation, filing the resignation with the court
6that issued the guardianship order and notifying the petitioner, if living, in writing
7of that resignation. On compliance with this subdivision, the court may accept the
8resignation and rescind the guardianship order if the court determines that the
9resignation and rescission are in the best interests of the child.
AB713,16,1410
4. The petitioner may revoke a standby guardianship ordered under par. (j) 2.
11at any time before the duty and authority of the standby guardian begin by executing
12a written revocation, filing the revocation with the court that entered the
13guardianship order and notifying the standby guardian in writing of the revocation.
14On compliance with this subdivision, the court shall rescind the guardianship order.
AB713,16,2115
5. The petitioner may revoke a standby guardianship ordered under par. (j) 2.
16at any time after the duty and authority of the standby guardian begin by executing
17a written revocation, filing the written revocation with the court that entered the
18guardianship order and notifying the standby guardian in writing of the revocation.
19On compliance with this subdivision, the court may rescind the guardianship order
20if the court determines that rescission of the guardianship order is in the best
21interests of the child.
AB713,17,4
22(3) Parental designation. (a)
Written designation. A parent may designate
23a standby guardian for his or her child by means of a written designation signed by
24the parent in the presence of 2 witnesses 18 years of age or over, neither of whom may
25be the standby guardian, and by the standby guardian. If a parent is physically
1unable to sign that written designation, another person 18 years of age or over who
2is not the standby guardian may sign the written designation on behalf of the parent
3and at the direction of the parent, in the presence of the parent and 2 witnesses 18
4years of age or over, neither of whom may be the standby guardian.
