Guardianships

A guardian is one who has the care of the person or property of another. Persons who may be eligible for guardianship are developmentally disabled, incompetent, a minor, a spendthrift, or have the infirmities of aging. A guardian is appointed by the court to take care of the “person” and/or the “estate” (i.e. property) of a ward.

The guardian of the person makes decisions relating to the physical placement of the ward, the medical treatment and control over the daily life of the ward.

The guardian of the estate takes possession of the ward’s property, provides an inventory to the court of that property, and provides yearly annual accounts to the court of how the ward’s assets have been maintained and spent. The guardian of the estate must protect and preserve the property of the ward while taking into account the best interests and needs of the ward.

Sometimes a ward must be “protectively placed” as they may be a danger to themselves or others. A protective placement is a placement of a ward for the primary purpose of providing care and custody. To be eligible for placement, an individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive placement upon attaining the age of 14. No protective placement under this section may be ordered unless there is a determination of incompetency in accordance with Ch. 54, except in the case of a minor who is alleged to be developmentally disabled, and there is a finding of a need for protective placement. No guardian may make a permanent protective placement of his or her ward unless ordered by a court.

If a ward is protectively placed, the Court must review that placement every year. A social worker sends a report to the court, who then appoints a guardian ad litem to meet with the ward. After the court receives a written recommendation from the guardian ad litem, a hearing is held to see if the present placement should continue, or if a more (or less) restrictive placement should be implemented. This process is called a WATTS Review, and is mandated by the Wisconsin Legislature.

There are two agencies in Iowa County who may assist you in deciding if a guardianship pertains in your situation.

Iowa County Department of Social Services

303 W. Chapel St.

Dodgeville, WI 53533

608 930-9801

Unified Community Services

1122 Professional Drive

Dodgeville, WI 53533

(608) 935-2776

Another resource for guardians is the Coalition of Wisconsin Aging Groups at the Elder Law Center, 2850 Dairy Drive, Suite 100, Madison, WI 53718-6751. Telephone number (608) 224-0660 or 1-800-488-2596. Their toll-free telephone Hotline receives over 2,000 calls a year, and they provide state-wide training on issues relating to guardianships, protective placements, and advance directives. They provide legal information and resources, not legal advice.

Other resources: private attorneys, the Bureau of Quality Assurance, and the ombudsman at the care facility.

There is a filing fee for guardianships. If a ward has assets of $50,000 or less, the fee is $20.00. If a ward has over $50,000 in assets, the fee is .2% of the gross estate. I.E., if a ward has $55,000 in assets, the fee is $110.00 ($55,000 x .002).

Definitions

Agency: any public or private board, corporation or association which is concerned with the specific needs and problems of mentally retarded, developmentally disabled, mentally ill, alcoholic, drug dependent and aging persons.

Developmentally disabled person  : Any individual having a disability attributable to mental retardation, cerebral palsy, autism or another neurological condition closely related to mental retardation or requiring treatment similar to that required to mentally retarded individuals, which has continued or can be expected to continue indefinitely, substantially impairs the individual from adequately providing for his or her own care or custody and constitutes a substantial handicap to the afflicted individual. The term does not include a person affected by senility, which is primarily caused by the process of aging or the infirmities of aging.

Guardian: One appointed by a court to have care, custody and control of the person of a minor or an incompetent or the management of the estate of a minor, an incompetent or a spendthrift.

Incompetent: A person adjudged by a court of record to be substantially incapable of managing his or her property or caring for him/herself by reason of infirmities of aging, developmental disabilities or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

Infirmities of aging: Organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted is substantially impaired in his or her ability to adequately provide for his or her own care or custody.

Interested persons: Any adult relative or friend of a person to be protected under this subchapter; or any official or representative of a public or private agency, corporation or association concerned with the welfare of the person who is to be protected.

Minor: A person who has not attained the age of 18 years.

Not competent to refuse psychotropic medication: Because of chronic mental illness, as defined in s. 51.01(3g), and after the advantages and disadvantages of any alternatives to accepting the particular psychotropic medication have been explained to an individual, one of the following is true:

• The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.
• The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.

Other like incapacities: Those conditions incurred at any age which are the result of accident, organic brain damage, mental or physical disability, continued consumption or absorption of substances, producing a condition which substantially impairs an individual from providing for the individual’s own care or custody.

Spendthrift: A person who because of the use of intoxicants or drugs or of gambling, idleness or debauchery or other wasteful course of conduct is unable to attend to business or thereby is likely to affect the health, life or property of the person or others so as to endanger the support of the person and the person’s dependents or expose the public to such support.

Ward: a subject for whom a guardian has been appointed.