Tis the season for giving and, in that spirit, the Wisconsin legislature and courts have given those pursuing adult guardianship two more things to take into consideration as they move through that process. These two holiday “gifts”, detailed further below, will impact whether a proposed guardian is ultimately deemed to be fit and suitable for the role, as well as whether the subject of a guardianship (the "ward") has been afforded a sufficient opportunity to participate in the guardianship proceedings. Personally, I would have preferred fruitcake.
New State Law Mandates Training for Proposed Guardians
When an individual petitioning for adult guardianship makes their list (and checks it twice) of everything that needs to be completed before a court will order a guardianship, they will now need to ensure that they include on that list, “make sure proposed guardian completes training required under Wis. Stat § 54.26.” Governor Evers signed 2021 Act 97, a bill with bipartisan support, into law on December 3, 2021. Under this law, every individual nominated to be a guardian of the person or the estate on or after January 1, 2023, must complete training on a variety of topics, and submit a sworn, notarized affidavit of such prior to the final guardianship hearing. This requirement will not apply to corporate guardians or guardians of minors, but will apply to stand-by and successor guardians. Once an individual has completed the training, they do not need to complete it again if they are later appointed guardian for a different person.
While some counties already have their own guardian training requirements and resources, the new requirements under Wis. Stat § 54.26 will be administered by the Department of Health Services (“DHS”). DHS has been tasked with creating a program that will be accessible both in paper form and online, and will be free to all who wish to take it. Training topics include the duties and responsibilities of a guardian, alternatives to guardianship, rights retained by the individual under guardianship, best practices for a guardian to understand the wishes and preferences of their ward, restoration of a ward's rights, future planning, inventory and accounting requirements, and resources and technical support for guardians.
Appeals Court Tackles What it Means to be Present
The District II Court of Appeals got in the holiday mood by considering a question on presents—well, actually presence. The court recently ruled on a case that centered on the question of what it means for the ward to “be present” at the hearing to decide whether guardianship and protective placement will be ordered. The internet is full of Zen-like definitions for “being present”, which include concepts like “being focused and engaged in the here and now” and “being fully conscious of the moment”. The court, however, took a much more concrete view, saying that being present requires the actual physical presence of the proposed ward in the courtroom (or other location) where the hearing is being held unless waived by the guardian ad litem (the “GAL”).
The case, Matter of Guardianship of P.B., (Wis. App. Nov. 30, 2022), addressed whether a proposed ward’s participation at their guardianship hearing via Zoom was sufficient to meet the requirement in Wis. Stat. Ann. § 54.44(4) for “[t]he petitioner [to] ensure that the proposed ward . . . attends the hearing unless the attendance is waived by the guardian ad litem” (Wis. Stat. Ann. § 55.10(2) requires the same for hearings on petitions for protective placement). In P.B., the GAL informed P.B. of her right to be present at the hearing, but did not check the box on the GAL report waiving P.B.’s attendance. The hearing, which all parties attended separately via Zoom, resulted in an order for guardianship and protective placement. P.B. appealed the ruling, arguing that she had not been given an opportunity to attend the final hearing in person, and did not consent to participate by video conference.
The circuit court sided with Racine County, ruling that the relevant statues do not explicitly require physical presence and, even if they did, P.B. waived that right by not objecting to the use of video conferencing before the hearing. The appeals court, however, determined that the “common, ordinary, and accepted meaning” of the term “attend” suggest a physical presence at the location of the event. Further, the provisions in the statues which allow the hearing to be held outside a courtroom if the ward’s condition would prevent them appearing in person connote a requirement for physical presence. Finally, the court pointed to Wis. Stat. Ann. § 885.60(2)(a), which provides that, while video conferencing may be used for hearings on petitions for protective placement, respondents in these cases are “entitled to be physically present in the courtroom at all trials and . . . dispositional hearings.” Thus, because P.B. was not permitted to attend the hearing in person, and because her physical presence was not waived by the GAL , the appeals court found that the court did not have competency to issue the orders for guardianship and protective placement.
Takeaways
Although neither of these developments fundamentally alter the standards or procedures for obtaining orders for guardianship and protective placement, they do present additional hurdles for the petitioning party to navigate. In the new year, petitioners must resolve to be cognizant of the new training requirement, and work proactively to ensure that the proposed guardian has completed it prior to the final hearing. Additionally, the petitioner must be aware that it is their burden to ensure that either the ward will attend the final hearing in person or that the GAL will expressly waive the ward’s right to physically appear at the hearing.
