Navigating Adult Guardianship in Wisconsin: What Families Need to Know
Guardianship is a legal action wherein a Court appoints an individual or agency to make decisions on behalf of another person who is unable to manage their personal, financial, or healthcare affairs due to incapacity or disability.
Noticing the Signs
First it was a missed appointment. Then a bill was left unpaid. Before you knew it, “once in a while” became a call from your loved one that they were lost. They took a wrong turn and couldn’t find their way back home. That’s when you start asking yourself, does my loved one need a guardian?
If your loved one has planned for this possibility, it is likely that they executed a power of attorney. A power of attorney is a legal document that allows an individual to give another person (an “Agent”) the authority to act on their behalf in specific matters. There are two main types of powers of attorney: the (1) Healthcare Power of Attorney and a (2) Financial Power of Attorney. Despite the best plans, it is important to understand that not all powers of attorney protect against the appointment of a guardian.
What if There is No Power of Attorney?
Once your loved one has exhibited a decline in their capacity, executing a power of attorney is no longer an option.
At this point, your best option is to file a petition asking the court to appoint a guardian for your loved one. Wisconsin Statutes require the report of an examining physician as well as the appointment of a guardian ad litem. While the role of the court is to make a determination as to whether the guardianship is needed, they must also select a guardian. The orders of the court must reflect the least restrictive manner available.
An individual under a disability may not have the faculty to independently manage their financial affairs, but may have the ability to consult with their guardian prior to a decision being made. Guardianships are not a one-size fits all action.
Pick Me! No, Me!
What happens if two people want to be guardian? Often, the court must consider the nomination of multiple persons who may wish to act as a guardian. For example, an aging parent, with multiple children, who do not agree with the type or level of care their parent needs.
From the court’s perspective, the appointment of a guardian will be the individual or agency who will act in the best interest of an individual. Contrary to the beliefs of some, the court does not care about birth order among siblings. The court is likely to consider your relationship with the individual, where you reside in contrast to the individual resides, and whether you are equipped to act as guardian.
Nominating yourself as a guardian is surely a noble offer, but it may not be a realistic option for some. A person nominated as a guardian must be able to manage the affairs of another person. Financial exploitation amongst the elderly and disabled is quite prevalent. Guardianship is not a duty to be accepted lightly.
The court requires that each person nominated to act as a guardian undergo training prior to their appointment. The court also a nominated individual to make several disclosures, including whether they had been charged with a felony or misdemeanor. As a nominated guardian, you will be asked to show the court that you are the best person to be appointed as Guardian.
When It’s Anticipated
There are instances in which you can plan for a guardianship. For example, in the months leading up to a disabled minor child turning eighteen years old, a petition for guardianship can be filed with the court. This type of action is commenced in anticipation of the child reaching the age of majority, so there are no gaps in the ability to make decisions on behalf of the child.
Procedurally, the court still requires the report of an examining physician as well as the appointment of a guardian ad litem. The “why” may be different, but the “how” is set forth by statute and will not change.
Conclusion
Wisconsin’s guardianship laws are designed to protect individuals who are unable to make informed decisions for themselves due to disability or incapacity. The process ensures that guardians are appointed through a careful legal procedure that prioritizes the rights and best interests of the individual in need. Whether establishing guardianship for an elderly adult or someone with special needs, it is crucial to understand the legal responsibilities involved and the court’s oversight. Navigating guardianship in Wisconsin requires thoughtful planning, legal guidance, and a strong commitment to the well-being of the person under care.
