2018 Wisconsin Statutes & Annotations
Chapter 54. Guardianships and conservatorships.
54.20 Powers of guardian of the estate.
54.20 Powers of guardian of the estate.
(1) Standard. In exercising the powers under this section, the guardian of the estate shall use the judgment and care that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, including the permanent, rather than speculative, disposition of their funds and consideration of the probable income and safety of their capital. In addition, in exercising powers and duties under this section, the guardian of the estate shall consider, consistent with the functional limitations of the ward, all of the following:
(a) The ward's understanding of the harm that he or she is likely to suffer as the result of his or her inability to manage property and financial affairs.
(b) The ward's personal preferences and desires with regard to managing his or her activities of daily living.
(c) The least restrictive form of intervention for the ward.
(2) Powers requiring court approval. The guardian of the estate may do any of the following with respect to the ward's income and assets only with the court's prior written approval following any petition and upon any notice and hearing that the court requires:
(a) Make gifts, under the terms, including the frequency, amount, and donees specified by the court in approval of a petition under s. 54.21.
(b) Transfer assets of the ward to the trustee of any existing revocable living trust that the ward has created for himself or herself and any dependents, or, if the ward is a minor, to the trustee of any trust created for the exclusive benefit of the ward that distributes to him or her at age 18 or 21, or, if the ward dies before age 18 or 21, to his or her estate, or as the ward has appointed by a written instrument that is executed after the ward attains age 14.
(c) Establish a trust as specified under 42 USC 1396p (d) (4) and transfer assets into the trust.
(d) Purchase an annuity or insurance contract and exercise rights to elect options or change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value.
(e) Ascertain, establish, and exercise any rights available to the ward under a retirement plan or account.
(f) Exercise any elective rights that accrue to the ward as the result of the death of the ward's spouse or parent.
(g) Release or disclaim, under s. 854.13, any interest of the ward that is received by will, intestate succession, nontestamentary transfer at death, or other transfer.
(h) If appointed for a married ward, exercise any management and control right over the marital property or property other than marital property and any right in the business affairs that the married ward could exercise under ch. 766 if the ward were not an individual found incompetent, consent to act together in or join in any transaction for which consent or joinder of both spouses is required, or execute under s. 766.58 a marital property agreement with the ward's spouse or, if appointed for a ward who intends to marry, with the ward's intended spouse, but may not make, amend or revoke a will.
(i) Provide support for an individual whom the ward is not legally obligated to support.
(j) Convey or release a contingent or expectation interest in property, including a marital property right and any right of survivorship that is incidental to a joint tenancy or survivorship marital property.
(k) In all cases in which the court determines that it is advantageous to continue the business of a ward, continue the business on any terms and conditions specified in the order of the court.
(L) Apply to the court for adjustment of any claims against the ward incurred before entry of the order appointing the guardian or the filing of a lis pendens as provided in s. 54.47. The court shall by order fix the time and place it will adjust claims and the time within which all claims shall be presented. Notice of these times and the place shall be given by publication as provided in s. 879.05 (4), and ch. 859 generally shall apply. After the court has made the order, no action or proceeding may be commenced or maintained in any court against the ward upon any claim over which the circuit court has jurisdiction.
(m) Access the ward's digital property in accordance with s. 711.08.
(3) Powers that do not require court approval. The guardian of the estate may do any of the following on behalf of the ward without first receiving the court's approval:
(a) Provide support from the ward's income and assets for an individual whom the ward is legally obligated to support.
(b) Enter into a contract, other than a contract under sub. (2) or that is otherwise prohibited under this chapter.
(c) Exercise options of the ward to purchase securities or other property.
(d) Authorize access to or release of the ward's confidential financial records.
(e) Apply for public and private benefits.
(f) Retain any real or personal property that the ward possesses when the guardian is appointed or that the ward acquires by gift or inheritance during the guardian's appointment.
(g) Subject to ch. 786, sell, mortgage, pledge, lease, or exchange any asset of the ward at fair market value.
(h) Invest and reinvest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in accordance with ch. 881.
(i) Notwithstanding ch. 881, after such notice as the court directs, and subject to ch. 786, invest the proceeds of sale of any assets of the ward and any of the ward's other moneys in the guardian's possession in the real or personal property that is determined by the court to be in the best interests of the estate of the ward.
(j) Settle all claims and accounts of the ward and appear for and represent the ward in all actions and proceedings except those for which another person is appointed.
(k) Take any other action, except an action specified under sub. (2), that is reasonable or appropriate to the duties of the guardian of the estate.
History: 2005 a. 387 ss. 100, 380, 383, 390, 391, 393, 395, 396, 399, 415, 417; 2015 a. 300.
The standard for a trial court's exercise of discretion for a guardian of a married person is whether the proposed action will benefit the ward, the estate, or members of the ward's immediate family. In Matter of Guardianship of F.E.H. 154 Wis. 2d 576, 453 N.W.2d 882 (1990).
A guardian is not authorized to make gifts from the guardianship estate to effectuate an estate plan that would avoid future death taxes. Michael S.B. v. Berns, 196 Wis. 2d 920, 540 N.W.2d 11 (Ct. App. 1995), 95-0580.
A guardian may not sue for the loss of society and companionship of a ward, nor bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc. 229 Wis. 2d 271, 600 N.W.2d 21 (Ct. App. 1999), 98-3285.
An interested party without a direct financial stake in the action had standing to appeal an order permitting the termination of the ward's life lease in real estate. Carla S. v. Frank B. 2001 WI App 97, 242 Wis. 2d 605, 626 N.W.2d 330, 99-3012.
NOTE: The above annotations relate to guardianships under ch. 880, stats., prior to the revision of and renumbering of that chapter to ch. 54 by 2005 Wis. Act 387.