Wis. Stat. § 48.978
This is the official text of Wis. Stat. § 48.978, part of Wisconsin’s Wisconsin Statutes — the complete compiled statutory law of Wisconsin, organized into numbered chapters by subject.
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Appointment or designation of standby guardian of a child.
Official statutory text
(1) Definitions. In this section:
(a) “Attending physician” means a physician licensed under ch. 448 who has primary responsibility for the treatment and care of a parent who has filed a petition under sub. (2) (a) or made a written designation under sub. (3) (a) or, if more than one physician has responsibility for the treatment and care of that parent, if a physician is acting on behalf of a physician who has primary responsibility for the treatment and care of that parent or if no physician is responsible for the treatment and care of that parent, “attending physician” means any physician licensed under ch. 448 who is familiar with the medical condition of that parent.
(b) “Debilitation” means a person’s chronic and substantial inability, as a result of a physical illness, disease, impairment or injury, to care for his or her child.
(c) “Incapacity” means a person’s chronic and substantial inability, as a result of a mental impairment, to care for his or her child.
(2) Judicial appointment.
(a) Who may file petition.
1. A parent of a child may file a petition for the judicial appointment of a standby guardian of the person or estate or both of the child under this subsection. A parent may include in the petition the nomination of an alternate standby guardian for the court to appoint if the person nominated as standby guardian is unwilling or unable to serve as the child’s guardian or if the court determines that appointment of the person nominated as standby guardian as the child’s guardian is not in the best interests of the child. Subject to subds. 2. and 3. , if a petition is filed under this subdivision, the petition shall be joined by each parent of the child.
2. If a parent of a child cannot with reasonable diligence locate the other parent of the child, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that reasonable diligence, the court may grant the petition.
3. If a parent of a child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that refusal, unwillingness or inability, the court may grant the petition.
(b) Contents of petition. A proceeding for the appointment of a standby guardian for a child under this subsection shall be initiated by a petition that shall be entitled “In the interest of .... (child’s name), a person under the age of 18” and shall set forth with specificity all of the following:
1. The name, birth date and address of the child.
2. The names and addresses of the child’s parent or parents, guardian and legal custodian.
3. The name and address of the person nominated as standby guardian and, if the petitioner is nominating an alternate standby guardian, the name and address of the person nominated as alternate standby guardian.
4. The duties and authority that the petitioner wishes the standby guardian to exercise.
5. A statement of whether the duty and authority of the standby guardian are to become effective on the petitioner’s incapacity, on the petitioner’s death, or on the petitioner’s debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement.
etitioner’s death, or on the petitioner’s debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement.
7. If a parent of the child cannot with reasonable diligence locate the other parent of the child, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duties and authority of guardianship and who, with reasonable diligence, can be located and a statement of the efforts made to locate the other parent.
8. If a parent of the child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship and a statement that the nonpetitioning parent has refused to join in the petition or has indicated that he or she is unwilling or unable to exercise the duty and authority of guardianship.
9. A description of the child’s income and assets, if any.
10. A statement of whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822 .
11. A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963 , and, if the child may be subject to that act, the names and addresses of the child’s Indian custodian, if any, and Indian tribe, if known.
(c) Service of petition and notice.
1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (d) to be served on all of the following persons:
a. The child if the child is 12 years of age or older.
b. The child’s guardian and legal custodian.
c. The child’s guardian ad litem.
d. The child’s counsel.
e. The child’s other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located.
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
g. The person who is nominated as the standby guardian of the child in the petition and, if an alternate standby guardian is nominated in the petition, the person who is nominated as the alternate standby guardian.
2. Service shall be made by certified mail at least 7 days before the hearing or by personal service in the same manner as a summons is served under s. 801.11 (1) (a) or (b) at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or by personal or substituted service, service shall be made by publication of a notice published as a class 1 notice under ch. 985 . In determining which newspaper is likely to give notice as required under s. 985.02 (1) , the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.
d by mail or by personal or substituted service, service shall be made by publication of a notice published as a class 1 notice under ch. 985 . In determining which newspaper is likely to give notice as required under s. 985.02 (1) , the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.
(d) Plea hearing.
1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date that allows reasonable time for the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition.
2. If the petition is not contested, the court may immediately proceed to a dispositional hearing under par. (g) , unless an adjournment is requested under par. (g) .
3. If the petition is contested, the court shall set a date for a fact-finding hearing under par. (e) that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing.
(e) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (d) 3. at which any party may present evidence relevant to any of the following issues:
1. Whether there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. Whether the child has any parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. If a parent cannot be located, whether the petitioner has made diligent efforts to locate that parent.
4. If a parent has refused to join in the petition, whether that refusal is unreasonable.
(f) Required findings by court. If the court, at the conclusion of the fact-finding hearing, makes all of the following findings by clear and convincing evidence, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested under par. (g) :
1. That there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. That the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent.
4. That, if a parent has refused to join in the petition, the refusal was unreasonable.
5. That the person nominated as standby guardian is willing and able to act as standby guardian or, if that person is not so willing and able, that the person nominated as alternate standby guardian is willing and able to act as standby guardian.
(g) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified under par. (d) 2. or (e) , at which any party may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing or fact-finding hearing.
, at which any party may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing or fact-finding hearing.
(h) Dispositional factors. In determining the appropriate disposition under this par. (j) , the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
1. Whether the person nominated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
2. The willingness and ability of the person nominated as standby guardian or alternate standby guardian to serve as the child’s guardian if the petitioner becomes incapacitated or debilitated or dies.
3. The wishes of the child.
(i) Appearance by petitioner. If the petitioner is medically unable to appear at a hearing under par. (d) , (e) or (g) , the court may dispense with the petitioner’s appearance, except on the motion of a party and for good cause shown.
(j) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:
1. A disposition dismissing the petition if the court determines that appointment of the person nominated as standby guardian or alternate standby guardian as the child’s standby guardian is not in the best interests of the child.
2. A disposition ordering that the person nominated as standby guardian or alternate standby guardian be appointed as the child’s standby guardian if the court determines that such an appointment is in the best interests of the child.
(k) Guardianship order. A standby guardianship order under par. (j) 2. shall include all of the following:
1. A statement of whether the standby guardianship is a full guardianship under sub. (6) (b) 1. or a limited guardianship under sub. (6) (b) 2.
2. A statement of when the standby guardianship goes into effect, which may be on receipt by the standby guardian of a determination of the petitioner’s incapacity, a certificate of the petitioner’s death, or a determination of the petitioner’s debilitation and the petitioner’s written consent under par. (L) 3. that the standby guardianship go into effect.
(L) Commencement of duty and authority of court-appointed standby guardian.
(a) “Attending physician” means a physician licensed under ch. 448 who has primary responsibility for the treatment and care of a parent who has filed a petition under sub. (2) (a) or made a written designation under sub. (3) (a) or, if more than one physician has responsibility for the treatment and care of that parent, if a physician is acting on behalf of a physician who has primary responsibility for the treatment and care of that parent or if no physician is responsible for the treatment and care of that parent, “attending physician” means any physician licensed under ch. 448 who is familiar with the medical condition of that parent.
(b) “Debilitation” means a person’s chronic and substantial inability, as a result of a physical illness, disease, impairment or injury, to care for his or her child.
(c) “Incapacity” means a person’s chronic and substantial inability, as a result of a mental impairment, to care for his or her child.
(2) Judicial appointment.
(a) Who may file petition.
1. A parent of a child may file a petition for the judicial appointment of a standby guardian of the person or estate or both of the child under this subsection. A parent may include in the petition the nomination of an alternate standby guardian for the court to appoint if the person nominated as standby guardian is unwilling or unable to serve as the child’s guardian or if the court determines that appointment of the person nominated as standby guardian as the child’s guardian is not in the best interests of the child. Subject to subds. 2. and 3. , if a petition is filed under this subdivision, the petition shall be joined by each parent of the child.
2. If a parent of a child cannot with reasonable diligence locate the other parent of the child, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that reasonable diligence, the court may grant the petition.
3. If a parent of a child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, the parent may file a petition under subd. 1. without the other parent joining in the petition and, if the parent filing the petition submits proof satisfactory to the court of that refusal, unwillingness or inability, the court may grant the petition.
(b) Contents of petition. A proceeding for the appointment of a standby guardian for a child under this subsection shall be initiated by a petition that shall be entitled “In the interest of .... (child’s name), a person under the age of 18” and shall set forth with specificity all of the following:
1. The name, birth date and address of the child.
2. The names and addresses of the child’s parent or parents, guardian and legal custodian.
3. The name and address of the person nominated as standby guardian and, if the petitioner is nominating an alternate standby guardian, the name and address of the person nominated as alternate standby guardian.
4. The duties and authority that the petitioner wishes the standby guardian to exercise.
5. A statement of whether the duty and authority of the standby guardian are to become effective on the petitioner’s incapacity, on the petitioner’s death, or on the petitioner’s debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement.
etitioner’s death, or on the petitioner’s debilitation and consent to the beginning of the duty and authority of the standby guardian, or on whichever occurs first.
6. A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement.
7. If a parent of the child cannot with reasonable diligence locate the other parent of the child, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duties and authority of guardianship and who, with reasonable diligence, can be located and a statement of the efforts made to locate the other parent.
8. If a parent of the child can locate the other parent of the child, but that other parent refuses to join in the petition or indicates that he or she is unwilling or unable to exercise the duty and authority of guardianship, a statement that the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship and a statement that the nonpetitioning parent has refused to join in the petition or has indicated that he or she is unwilling or unable to exercise the duty and authority of guardianship.
9. A description of the child’s income and assets, if any.
10. A statement of whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822 .
11. A statement of whether the child may be subject to the federal Indian Child Welfare Act, 25 USC 1901 to 1963 , and, if the child may be subject to that act, the names and addresses of the child’s Indian custodian, if any, and Indian tribe, if known.
(c) Service of petition and notice.
1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (d) to be served on all of the following persons:
a. The child if the child is 12 years of age or older.
b. The child’s guardian and legal custodian.
c. The child’s guardian ad litem.
d. The child’s counsel.
e. The child’s other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located.
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
g. The person who is nominated as the standby guardian of the child in the petition and, if an alternate standby guardian is nominated in the petition, the person who is nominated as the alternate standby guardian.
2. Service shall be made by certified mail at least 7 days before the hearing or by personal service in the same manner as a summons is served under s. 801.11 (1) (a) or (b) at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or by personal or substituted service, service shall be made by publication of a notice published as a class 1 notice under ch. 985 . In determining which newspaper is likely to give notice as required under s. 985.02 (1) , the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.
d by mail or by personal or substituted service, service shall be made by publication of a notice published as a class 1 notice under ch. 985 . In determining which newspaper is likely to give notice as required under s. 985.02 (1) , the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.
(d) Plea hearing.
1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date that allows reasonable time for the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition.
2. If the petition is not contested, the court may immediately proceed to a dispositional hearing under par. (g) , unless an adjournment is requested under par. (g) .
3. If the petition is contested, the court shall set a date for a fact-finding hearing under par. (e) that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing.
(e) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (d) 3. at which any party may present evidence relevant to any of the following issues:
1. Whether there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. Whether the child has any parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. If a parent cannot be located, whether the petitioner has made diligent efforts to locate that parent.
4. If a parent has refused to join in the petition, whether that refusal is unreasonable.
(f) Required findings by court. If the court, at the conclusion of the fact-finding hearing, makes all of the following findings by clear and convincing evidence, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested under par. (g) :
1. That there is a significant risk that the petitioner will become incapacitated or debilitated or die within 2 years after the date on which the petition was filed.
2. That the child has no parent, other than the petitioner, who is willing and able to exercise the duty and authority of guardianship.
3. That, if a parent cannot be located, the petitioner has made diligent efforts to locate that parent.
4. That, if a parent has refused to join in the petition, the refusal was unreasonable.
5. That the person nominated as standby guardian is willing and able to act as standby guardian or, if that person is not so willing and able, that the person nominated as alternate standby guardian is willing and able to act as standby guardian.
(g) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified under par. (d) 2. or (e) , at which any party may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing or fact-finding hearing.
, at which any party may present evidence, including expert testimony, relevant to the disposition. If at the plea hearing or the fact-finding hearing a party requests an adjournment of the dispositional hearing, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing or fact-finding hearing.
(h) Dispositional factors. In determining the appropriate disposition under this par. (j) , the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider all of the following:
1. Whether the person nominated as standby guardian or alternate standby guardian would be a suitable guardian of the child.
2. The willingness and ability of the person nominated as standby guardian or alternate standby guardian to serve as the child’s guardian if the petitioner becomes incapacitated or debilitated or dies.
3. The wishes of the child.
(i) Appearance by petitioner. If the petitioner is medically unable to appear at a hearing under par. (d) , (e) or (g) , the court may dispense with the petitioner’s appearance, except on the motion of a party and for good cause shown.
(j) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:
1. A disposition dismissing the petition if the court determines that appointment of the person nominated as standby guardian or alternate standby guardian as the child’s standby guardian is not in the best interests of the child.
2. A disposition ordering that the person nominated as standby guardian or alternate standby guardian be appointed as the child’s standby guardian if the court determines that such an appointment is in the best interests of the child.
(k) Guardianship order. A standby guardianship order under par. (j) 2. shall include all of the following:
1. A statement of whether the standby guardianship is a full guardianship under sub. (6) (b) 1. or a limited guardianship under sub. (6) (b) 2.
2. A statement of when the standby guardianship goes into effect, which may be on receipt by the standby guardian of a determination of the petitioner’s incapacity, a certificate of the petitioner’s death, or a determination of the petitioner’s debilitation and the petitioner’s written consent under par. (L) 3. that the standby guardianship go into effect.
(L) Commencement of duty and authority of court-appointed standby guardian.
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