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There comes a time in some lives when adults simply cannot take care of themselves any longer. For some, this comes with a disability, others with injury or advanced age. In Wisconsin, these events are often dealt with by the appointment of a guardian. This article provides a brief summary of what a guardian does and how one can acquire one for the person, the estate, or both.
Wisconsin’s Department of Health Services states that a guardian for an adult is a person or agency appointed by a court to act for an adult who has been found to have a functional impairment in decision-making or communication that meets the legal standard for a finding of incompetence. It is strongly presumed under Wisconsin law that a person over eighteen can make decisions about their health care, where to live, and how to manage their financial affairs. In other words, they are presumed to be competent.
For a guardian to be appointed for someone, an interested party must petition the court for the appointment of a guardian. The court must then make a series of findings before it can appoint a guardian for an adult based on a finding of incompetence. The court must find the following:
The court will make a decision regarding someone’s competency or incompetency based on the input of the petitioner for the guardianship, a doctor or psychologist who examines the person, and a guardian ad litem. A guardian ad litem is a court-appointed attorney who represents the person for whom the guardianship is sought.
Once the court has decided that a guardian is needed for a person, there comes the issue of what rights and powers the person retains and what rights and powers the guardian is authorized to exercise. A person with a guardian will always retain the following rights:
Some rights are removed in full and may not be exercised by either the guardian or the person under guardianship. These are the rights to:
Some rights are conditional on the consent of the guardian. These are:
The court may determine that certain rights can be fully or partially transferred. These rights concern certain decisions about health, health care, education, support services, and vocational services.
Finally, for guardianships of the estate, the court will decide to what extent the person retains right to buy, sell, transfer, and gift property, and to what extent the person may engage in everyday, low-dollar transactions. For example, a person may retain the right to have a small amount of cash to purchase food and toiletries but lose their right to obtain a mortgage or loan without the approval of the guardian.
If you know someone who may require a guardian, The McLario Firm is here to help. Our experienced attorneys can guide you through the guardianship process, ensuring that your loved one’s rights and well-being are fully protected. Contact us today to learn more.
Read moreWhen you contact our Milwaukee area law firm, your case will be treated like a unique request for assistance.