Guardianship is a legal relationship established by a court that authorizes a person (the guardian) to legally make decisions for another person (the ward) who has been deemed incompetent. The question of someone’s competency for guardianship purposes is a legal decision, not a medical one. However, the court will generally rely on a doctor, either medical or psychological, to provide a report to the court with a finding of legal incompetency for the court to appoint a guardian. Additionally, evidence may be presented from family members or other individuals familiar with the proposed ward to show the individual is unable to make decisions that meet their essential needs for physical health, safety, or asset management.
There are two main categories of guardianship, depending on the ward’s needs.
Guardian of the person and guardian of the estate. Sometimes these roles are held by the same person or entity, but not always. There are also situations where a ward only needs one or the other to achieve their goals.
A guardian of the person makes personal decisions for their ward, such as facilitating medical care and treatment, assisting with finding and maintaining living arrangements, safety decisions, daily living support, and, if authorized, end-of-life care. The court decides what authority a guardian can have to preserve as much autonomy for the ward as possible while keeping them safe and still providing for their care.
A guardian of the estate assists with managing their ward’s finances and property, such as paying bills, handling bank accounts, managing investments or income, applying for benefits (like Medicaid), selling or maintaining real estate, and filing taxes. Again, these powers can be given in full or limited by the court to balance the ward’s autonomy and needs. Guardians of the estate are held to a high fiduciary duty and must report to the court regularly.
The need for guardianship for people who become incapacitated later in life can most often be eliminated by having valid healthcare and financial powers of attorney arranged in advance. There is very rarely a need for a guardian when those powers are in place.
If, for some reason, a guardian is urgently needed, the court can appoint a temporary guardian. These guardians are in place for up to 60 days (though they can be extended for another 60 days, if necessary) to handle immediate emergencies, such as urgent medical decisions or sudden incapacity with no powers of attorney in place. Sometimes, temporary guardianships are the precursor to standard guardianship proceedings, such as when the incapacity is sudden or unexpected.
One of the most familiar forms of guardianships are those involving minor children. If a child’s parents are deceased, incapacitated, or unable to care for them, the court may appoint a guardian to take over parental duties in lieu of terminating parental rights. Guardianships of minors can be full guardianship of the person and/or estate, or as standby or successor guardians, in the event they are needed down the road. Parents can name a preferred guardian for their children in their Last Will and Testament to have a say in this process in the event the need for guardianship arises due to their death.
What is Guardianship in Wisconsin?
Wisconsin has various methods for protecting individuals and their families if those individuals are no longer able to care for or make decisions for themselves. One of these tools is guardianship. A person must be deemed incompetent in order for a petition for guardianship to be granted. For guardianship, incompetency is defined as “substantial incapability” of managing affairs or care due to developmental disability, degenerative brain disorder (such as moderate to severe dementia), serious and persistent mental illness, and/or conditions similar. Basically, a person must be incapable of caring for themselves and/or their assets due to some kind of cognitive impairment. However, guardianship is not a blanket tool used by the courts to strip people of all their rights, as some may believe. There are different types of guardianship used in Wisconsin for different purposes, as it is not a “one-size-fits-all action.”
Conclusion
Guardianship is a powerful and necessary legal tool in many situations, but it also carries great responsibility. Wisconsin courts take these appointments seriously and strive to balance protection with personal freedom.
With proper planning, many guardianships can be avoided through the use of powers of attorney and advance directives. But when guardianship is necessary, understanding the different types can help families navigate this process with greater clarity and confidence. Our expereienced attorneys are happy to help your family with this process, please reach out to our office if you are need of assistance with a guardianship.