2018 Wisconsin Statutes & Annotations
Chapter 54. Guardianships and conservatorships.
54.76 Conservator; appointment; duties and powers; termination.
54.76 Conservator; appointment; duties and powers; termination.
(1) Any adult resident who is unwilling or believes that he or she is unable properly to manage his or her assets or income may voluntarily apply to the circuit court of the county of his or her residence for appointment of a conservator of the estate. Upon receipt of the application, the court shall fix a time and place for hearing the application and may direct to whom, including presumptive heirs, and in what manner notice of the hearing shall be given to a potential recipient of the notice, unless the potential recipient has waived receipt. The fee prescribed in s. 814.66 (1) (b) shall be paid at the time of the filing of the inventory or other documents setting forth the value of the assets and income.
(2) At the hearing for appointment of a conservator, the applicant shall be personally examined by the court and if the court is satisfied that the applicant desires a conservator and that the fiduciary nominated and any proposed standby conservator are suitable, the court may appoint the nominee as conservator and, if applicable, designate the proposed standby conservator as standby conservator and issue letters of conservatorship to the nominee after he or she files a bond in the amount fixed by the court.
(3) Except as provided in sub. (3g), a conservator has all the powers and duties of a guardian of the estate. An individual whose income and assets are under conservatorship may make gifts of his or her income and assets, subject to approval of the conservator.
(3g) If the individual has executed a durable power of attorney before the proceedings under this section, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the individual's conservator may not make decisions for the individual that may be made by the agent, unless the conservator is the agent.
(3m) A person may at any time bring a petition for the appointment of a standby conservator for an individual for whom a conservator has been appointed under sub. (2).
(3n) At any hearing conducted under this section the court may designate one or more standby conservators for an individual for whom a conservator has been appointed under sub. (2) whose appointment shall become effective immediately upon the death, unwillingness, unavailability, or inability to act, resignation, or court's removal of the initially appointed conservator or during a period, as determined by the initially appointed conservator or the court, when the initially appointed conservator is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby conservator shall be the same as those of the initially appointed conservator. The standby conservator shall receive a copy of the court order establishing or modifying the initial conservatorship and the order designating the standby conservator. Upon assuming office, the standby conservator shall so notify the court. Upon notification, the court shall designate this conservator as permanent or shall specify the time period for a limited standby conservatorship.
(4) Any person, including an individual whose income and assets are under conservatorship, may apply to the court at any time for termination of the conservatorship. Upon receipt of the application, the court shall fix a time and place for hearing and may direct that 10 days' notice by mail be given to the individual's guardian of the person or agent under a power of attorney for health care, the conservator, any standby conservator, and the presumptive adult heirs of the individual whose income and assets are under conservatorship. A potential recipient of the notice may waive its receipt. At the hearing, the court shall, unless it is clearly shown that the individual whose income and assets are under conservatorship is incompetent, remove the conservator and order the income and assets restored to the individual. If, however, the court determines at the hearing that the individual whose income and assets are administered by a conservator is incapable of handling his or her income and assets, the court shall order the conservatorship continued, or, if the applicant so desires and a nominee is suitable, appoint a successor conservator. A conservatorship may only be terminated under a hearing under this subsection.
(5) Appointment of a conservator does not constitute evidence of the competency or incompetency of the individual whose income and assets are being administered.
(6) The court that appointed the conservator shall have continuing jurisdiction over the conservator. Any of the following, if committed by a conservator with respect to a conservatee or the conservatee's income or assets, constitutes cause for removal of the conservator under sub. (7) (a) 5:
(a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.
(b) Committing fraud, waste, or mismanagement.
(c) Abusing or neglecting the conservatee or knowingly permitting others to do so.
(d) Engaging in self-dealing.
(e) Failing to provide adequately for the personal needs of the conservatee from the available income and assets and any available public benefits.
(f) Failing to act in the best interests of the conservatee.
(g) Failing to disclose conviction for a crime that would have prevented appointment of the person as conservator.
(h) Failing to disclose that the conservator is listed under s. 146.40 (4g) (a) 2.
(a) The powers of a conservator may not be terminated without a hearing and may not be terminated unless any of the following occurs:
1. The court removes the conservator on the court's own motion or under sub. (4).
2. The court appoints a guardian for the individual whose income and assets are conserved.
3. The individual whose income and assets are conserved dies.
4. The conservator or individual whose income and assets are conserved changes residence to another state.
5. The court finds cause, as specified in sub. (6), for removal of the conservator.
(b) If anyone objects to termination of the conservatorship and alleges that the individual whose income and assets are conserved is appropriate for appointment of a guardian, the court may stay the hearing under par. (a) for 14 days to permit any interested person to file a petition for guardianship. If no petition is filed, the court may terminate the conservatorship and may appoint a guardian ad litem for the individual.
(8) If a court terminates a conservatorship or a conservator resigns, is removed, or dies, the conservator or the conservator's personal representative or special administrator shall promptly render a final account of the former conservatee's income and assets to the court and to the former conservatee, any guardian of the former conservatee, or any deceased conservatee's personal representative or special administrator, as appropriate. If the conservator dies and the conservator and the deceased conservatee's personal representative or special administrator are the same person, the deceased conservatee's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the conservatee's estate.
(a) If a conservator resigns, is removed, or dies, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor conservator. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor conservator be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a conservator.
(b) If the appointment under par. (a) is made without hearing, the successor conservator shall provide notice to the individual for whom a conservator has been appointed and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor conservator. The notice shall be served personally or by mail not later than 10 days after the appointment.
History: 2005 a. 387 ss. 100, 452 to 456; Stats. 2005 s. 54.76.
A gift by a competent conservatee without the approval of the conservator was void. Zobel v. Fenendael, 127 Wis. 2d 382, 379 N.W.2d 887 (Ct. App. 1985).
A circuit court must hold some form of hearing on the record, either a full due process hearing or a summary hearing, to continue a protective placement. The circuit court must also make findings based on the factors enumerated in s. 55.06 (2) [now s. 55.08 (1)] in support of the need for continuation. County of Dunn v. Goldie H. 2001 WI 102, 245 Wis. 2d 538, 629 N.W.2d 189, 00-1137.
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.