facebook pixel

Pay My Bill My Account

Talk during teatime with aged man, caregiver listens life memories stories of old 75s patient seated on sofa in cozy living room

January 25th, 2025 |

Understanding Guardianship in Wisconsin

By Mike Jerominski

Reading Time: 4 minutes

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: 

  • That the person is at least 17 years and 9 months old when the guardianship order is issued. 
  • That there is an impairment that fits a listed category, namely developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.
  • That the person has a lack of evaluative capacity. The court must decide that, because of the impairment, the person is unable to effectively evaluate information or to make or communicate decisions about their personal health and safety (for guardianship of person) and/or about protecting and using their property for their own support (for guardianship of the estate).  
  • That the person’s inability to make or communicate decisions creates a serious risk of harm to the person in that their physical health and safety would be at risk without a guardian of the person; for guardianship of the estate, that the person’s property may be lost or wasted, the person may be financially exploited, or the person is unable to support themselves.  
  • Finally, that there is no less restrictive alternative under the specific circumstances of the individual in question. 

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:

  • The right to communicate with the court and with government officials, including the right to have input into plans for support services, the right to initiate grievances or complaints about violations of rights, and the right to participate in administrative hearings and court proceedings, to the extent they are able.
  • The right to petition for court review of guardianship, protective services, protective placement, or commitment orders.
  • The right to communicate privately with a lawyer, and to ask an attorney for representation. 
  • The right to communicate privately with rights advocacy agencies, including Disability Rights Wisconsin and the state Board on Aging and Long-Term Care.
  • The right to protest a placement in a residential facility, and to be discharged unless an emergency placement or a proceeding leads to a court-ordered protective placement.
  • The right to withhold certain consents and refuse treatment. Unless there is a court order, consent of the person, in addition to the consent of the guardian, is required for treatment for mental illness, developmental disabilities, alcoholism, and drug dependence that is considered experimental or drastic.
  • Any other rights specifically reserved to the individual by statute or the constitutions of the state or the United States, including the rights to free speech, freedom of association, and the free exercise of religious expression. 

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:

  • Execute a will.
  • Serve on a jury.
  • Register to vote or to vote in an election because the individual is unable to understand the objective of the elective process.

Some rights are conditional on the consent of the guardian.  These are:

  • Consenting to marriage. 
  • Applying for an operator’s/driver’s license.  
  • Applying for a fishing license.  
  • Applying for a license under Ch. 29, Wis. Stats., other than fishing.  
  • Applying for any other license or credential under §54.25(2)(c)1.d., Wis. Stats. 
  • Consenting to sterilization.  
  • Consenting to organ, tissue, or bone marrow donation.

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 more

Request A Consultation

When you contact our Milwaukee area law firm, your case will be treated like a unique request for assistance.