Wisconsin

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process


I. Designation of Standby Guardian

Following a two-track model, in Wisconsin a parent may choose either of two strategies: (1) Early on in her illness she may petition the court to appoint as standby guardian the person she nominates. [Children's 48.978(2)]; or (2) she may designate the standby guardian in a written attested document, but not immediately file that document with the court, waiting instead until a triggering event occurs, and thus shifting the task of petitioning the court to the standby guardian. [Children's 48.978(3)] The same information must be presented to the court in either case, and the same court events occur after the petition is filed. The difference in timing means that if the early-filing strategy is chosen, the parent participates fully in each stage. If the designation plus late-filing strategy is chosen, the process remains private for a while.

Under the early-filing strategy, there is no particular form for the nomination of the standby guardian. The parent simply includes in the petition the name of the proposed guardian along with the other required information, including the triggering events that would commence the guardianship, and a statement that there is significant risk that the parent will become incapacitated, debilitated or die within 2 years. The triggering events are to include all or some of the following: incapacity, debilitation plus consent, and death.

Under the late-filing strategy, the contents and form of the written designation are precisely laid out in the law. No doubt that is necessary, as the designation document itself grants temporary authority for the guardianship for up to 180 days after the triggering event occurs, prior to court approval. [Children's 48.978(3)( c) 4] The document must be witnessed, and signed by the parent, the standby guardian, the witnesses, and the non-custodial parent if he agrees. It must include the same triggering events as would be included in a petition for judicial approval: mental incapacitation, physical debilitation plus parental consent, and death. It must describe the duties that the parent wants the guardian to exercise, which may be limited to the child's person, or also include the estate. There is full guidance in the statute, amounting to an optional form. [Children 48.978 (3)(b) 2]

The parent shares what probably amounts to concurrent authority with the standby guardian after the guardianship is activated. In describing the duties of the standby guardian, the law states that activation of the guardianship "does not in itself divest a parent of any parental rights." [Children 48.9978(6)(a)] The designation form states it more fully as retaining "full parental rights over my children." [Children 48.978 (3)(b)2] If she recovers her health after the petition for appointment has been filed or the appointment has been made, the parent can file a physician's determination to that effect with the court, to suspend the guardianship. [Children 48.978(3)(d)] She may also simply revoke the guardianship in a writing filed with the court.




II. Agreement of the Non-Custodial Parent

A non-custodial parent who is willing and able to exercise guardianship duties will have preference over a guardian. If he agrees instead to appointment of a guardian, he must join in the petition or sign the designation. [Children 48 .978 (3)(b)3] If he cannot be located with "reasonable diligence" on the part of the parent, the petition can describe the efforts that the petitioning parent or standby guardian made. For example, the law says notice must be sent to the non-custodial parent at least 7 days before a hearing, and mail, personal service, and publication should all be tried. [Children 48.978(2) (c)(a) 2. and( c)2] If the non-custodial parent is located, but refuses to join the petition, the parent or standby guardian will state that. The court will approach it as an issue of fact to be determined in the hearing. [Children 48.978(2)(f)4]




III. Role of the Standby Guardian

The proposed standby guardian signs the written designation or receives notice of the petition, so he presumably understands what is required of him. The parent retains "full parental rights" over the child, so in practical terms the guardian is exercising concurrent authority. [Children 48.978(3)(b)2] In broad terms, that is described as "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 child's general welfare…." [Children 48.023] Authority will be over the child's person, or also over the property, as set out in either the court's order [Children 48.978(2)(k)1] or the parent's designation [Children 48.978(3)(b)1]

Under the late-filing written designation strategy, the standby guardian has significant administrative responsibilities. When the triggering event occurs, the standby guardian must gather confirming evidence and file a petition for appointment with the court. Evidence will include an attending physician's statement as to the parent's incapacity, or debilitation plus written parental consent, or a death certificate. [Children 48.978(4) and (3) (c) 2 and 3] The written designation itself is temporary authority for up to 180 days, after which a court order governs. [Children 48.978(3) (c) 4] In the court hearings that follow the petition, the standby guardian, rather than the parent, will carry most of the burden of getting notices to the parties and proving the facts.

The standby guardian's authority can be revoked at any time by the parent in writing. [Children 48.978(3)(j)]




IV. Court Process

The court process is one typical of Juvenile Courts, which is where these issues are resolved, rather than in Probate Court where most guardianships are formed. [Probate 880.36(1)]

Under the early-filing strategy, a petition for appointment of a standby guardian is filed by the parent prior to a triggering event. Notices go out to all of the parties, summoning them to court. [Children 48.978(2)( c)] Three in-court events can take place: (1) a plea-hearing, where the court determines if there are any matters in controversy; (2) if there are contested facts, a fact-finding hearing, where the court decides issues in controversy; and (3) a dispositional hearing where the judge decides the terms of the guardianship. [Children 48.978(2)(d)-(k)] The law lays out the factors the judge must consider at both the fact-finding and dispositional hearings. Findings of fact are to be based on "clear and convincing" evidence. [Children 48.978(2)( c), (f) & (g)] If there are no matters in controversy, there might be only one in-court event, which would combine the plea hearing and disposition. [Children 48.978(2)(d)2]

Under the late-filing strategy, the same court events take place, but only after a triggering event occurs as described in the written designation document. The standby guardian files the petition, along with confirming evidence, within 180 days of the triggering event. [Children 48.978(3) (c) 4]

If the parent is "medically unable" to appear in court she may be excused. [Children 48.978(2)(I)]

No further court actions are required. However, if the parent files a written revocation or the standby guardian files a physician's determination of the parent's recovery, the court might wish to make further inquiry.

		West's Wisconsin Statutes Annotated Probate Chapter 48. Children's Subchapter XIX. Adoption of Minors, Guardianship Section Children's 48.978, Probate 880.36