54.15 Selection of guardian; nominations; preferences; other criteria. The court shall consider all of the following in determining who is appointed as guardian:
(1) Opinions of proposed ward and family. The court shall take into consideration the opinions of the proposed ward and of the members of his or her family as to what is in the best interests of the proposed ward. However, the best interests of the proposed ward shall control in making the determination when the opinions of the family are in conflict with those best interests.
(1m) Potential conflicts of interest. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest.
(2) Agent under durable power of attorney. The court shall appoint as guardian of the estate an agent under a proposed ward's durable power of attorney, unless the court finds that the appointment of an agent is not in the best interests of the proposed ward.
(3) Agent under a power of attorney for health care. The court shall appoint as guardian of the person the agent under a proposed ward's power of attorney for health care, unless the court finds that the appointment of the agent is not in the best interests of the proposed ward.
(4) Person nominated by proposed ward.
(a) Any individual other than a minor aged 14 years or younger may, if the individual does not have incapacity to such an extent that he or she is unable to form a reasonable and informed preference, execute a written instrument, in the same manner as the execution of a will under s. 853.03, nominating another to be appointed as guardian of his or her person or estate or both if a guardian is in the future appointed for the individual. The court shall appoint this nominee as guardian unless the court finds that the appointment is not in the best interests of the proposed ward.
(b) A minor who is 14 years or older may in writing in circuit court nominate his or her own guardian, but if the minor is in the armed service, is outside of the state, or if other good reason exists, the court may dispense with the minor's right of nomination.
(c) If neither parent of a minor who is 14 years or older is suitable and willing to be appointed guardian, the court may appoint the nominee of the minor.
(5) Parent of a proposed ward. If one or both of the parents of a minor or an individual with developmental disability or with serious and persistent mental illness are suitable and willing, the court shall appoint one or both as guardian unless the court finds that the appointment is not in the proposed ward's best interest. The court shall consider a proposed ward's objection to the appointment of his or her parent.
(6) Testamentary nomination by proposed ward's parents. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not in the minor's best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.
(7) Private nonprofit corporation or other entity. A private nonprofit corporation organized under ch. 181, 187, or 188 or an unincorporated association that is approved by the court may be appointed as guardian of the person or of the estate or both, of a proposed ward, if no suitable individual is available as guardian and the department, under rules promulgated under this chapter, finds the corporation or association to be a suitable agency to perform such duties.
(8) Statement of acts by proposed guardian.
(a) At least 96 hours before the hearing under s. 54.44, the proposed guardian shall submit to the court a sworn and notarized statement as to whether any of the following is true:
1. The proposed guardian is currently charged with or has been convicted of a crime, as defined in s. 939.12.
2. The proposed guardian has filed for or received protection under the federal bankruptcy laws.
3. Any license, certificate, permit, or registration of the proposed guardian that is required under chs. 89, 202, or 440 to 480 or by the laws of another state for the practice of a profession or occupation has been suspended or revoked.
4. The proposed guardian is listed under s. 146.40 (4g) (a) 2.
(b) If par. (a) 1., 2., 3., or 4. applies to the proposed guardian, he or she shall include in the sworn and notarized statement a description of the circumstances surrounding the applicable event under par. (a) 1., 2., 3., or 4.
(9) Limitation on number of wards of guardian. No individual may have guardianship of the person of more than 5 adult wards who are unrelated to the individual, except that a court may, under circumstances that the court determines are appropriate, waive this limitation to authorize appointment of the individual as guardian of the person of additional adult wards who are unrelated to the individual. A corporation or association that is approved by the department under sub. (7) is not limited in the number of adult wards for which the corporation or association may accept appointment by a court as guardian.
History: 2005 a. 387 ss. 100, 346, 348, 349, 351, 354, 356, 469, 470, 506; 2007 a. 45; 2013 a. 20; 2015 a. 55.
An unfit parent's nomination of a person to serve as guardian of his or her children should be weighed by the court. In re Guardianship of Schmidt, 71 Wis. 2d 317, 237 N.W.2d 919 (1976).
A parent's fundamental liberty interest in the care, custody, and control of a child is not violated if his or her nomination of a guardian is not presumed to be in the child's best interests when the parent is unable to have custody and provide care. The preference in sub. (2) [now sub. (5)] does not address a parent's wishes for another to act as guardian when the parent is not suitable to act as guardian. The circuit court is to only give the nomination of a surviving parent who is not suitable to be a guardian the weight that the circuit court considers appropriate in light of all the evidence. Anna S. v. Diana M., 2004 WI App 45, 270 Wis. 2d 411, 678 N.W.2d 285, 02-2640.
In a custody dispute triggered by a petition for guardianship between a birth parent and a non-parent, the threshold inquiry is whether the parent is unfit, unable to care for the child, or there are compelling reasons for awarding custody to the non-parent. Consideration of a minor's nomination of a guardian presupposes that the need for a guardian has been established. If it is determined that the birth parent is fit and able to care for the child and no compelling reasons exist to appoint a non-parent guardian, the minor's nomination of a guardian becomes moot. Nicholas C. L. v. Julie R. L., 2006 WI App 119, 293 Wis. 2d 819, 719 N.W.2d 508, 05-1754.
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.
Barstad, 118 Wis. 2d 549, rejected the “best interests" standard in custody disputes between parents and third parties. Barstad has not been quashed by the enactment of ch. 54. A best interests standard that does not consider a parent's constitutional rights is incomplete. To conclude otherwise, parents would routinely have parental rights stripped from them simply because a 3rd party might be better situated to tend to the needs of the child. Cynthia H. v. Joshua O., 2009 WI App 176, 322 Wis. 2d 615, 777 N.W.2d 664, 08-2456.
“Parent" as defined in s. 48.02 (13) as “either a biological parent . . . or a parent by adoption," applies to an action for guardianship of a minor. The action is a proceeding under ch. 48 as s. 48.14 provides that the juvenile court has exclusive jurisdiction over the appointment and removal of a guardian of the person for a child under ch. 54. Application of a definition of “parent" that might include persons who are not biological or adoptive parents also runs afoul of Barstad. Under Barstad, a person who is not a biological or adoptive parent of a child is a 3rd party who cannot become the child's guardian over the biological or adoptive parent's objection absent compelling reasons, such as the unfitness of the biological or adoptive parent. Wendy M. v. Helen K., 2010 WI App 90, 327 Wis. 2d 749; 787 N.W.2d 848, 09-0720.