1.28.060 Duration of Guardianship; Review

(a) Any guardianship of an individual found to be incompetent under this chapter shall continue during the life of the incompetent, or until terminated by the court. The court shall make a specific finding of any rights which the individual is competent to exercise at the time.

(b) The court shall review and may terminate the guardianship of the person of an incompetent upon marriage to any person who is not subject to a guardianship.

(c) A ward, any interested person on the ward's behalf, or the ward's guardian may petition the court to have the guardian discharged and a new guardian appointed, or to have the guardian of the ward's property designated as a limited guardian.

(d) A ward, any interested person acting on the ward's behalf, or the ward's guardian may petition for a review of incompetency. Upon such a petition for review, the court shall conduct a hearing at which the ward shall be present and shall have the right to a jury trial, if demanded. The ward shall also have the right to counsel and the court shall appoint counsel if the ward is unable to obtain counsel. If the ward is indigent, counsel shall be provided at the expense of the tribe.

(e) After a hearing under sub. (d) or on its own motion, a court may terminate or modify a guardianship of an incompetent.

(f)(1) If the court appoints a guardian under this chapter the court shall do all of the following:

(A) Order the tribe's social service department to review, at least once every 12 months from the date of the appointment, the status of the person and file a written evaluation with the court, the person and the person's guardian. Guardianship and protective services orders for psychotropic medication shall be reviewed annually. The evaluation shall include a description of facts and circumstances that indicate whether there is a substantial likelihood that the person could function at a reasonable level if protective services, including psychotropic medication, were withdrawn. The evaluation shall also include recommendations for discharge or changes in the treatment plan or services, if appropriate.

(B) Annually, appoint a guardian ad litem to meet with the person and to review the evaluations under sub. (j). The guardian ad litem shall inform the person and the guardian of all of the following:

(i) The person's right to representation by full legal counsel under par. (f)(2).

(ii) The right to an independent evaluation under par. (f)(4) of the person's need for a guardian for the purpose of consenting to or refusing psychotropic medication and the need for and appropriateness of the current treatment or services.

(iii) The right to a hearing under par. (f)(5) on the need for a guardian for the purpose of consenting to or refusing protective services, including psychotropic medication, and the need for and appropriateness of the current treatment or services.

(2) The court shall ensure that the person is represented by full legal counsel if requested by the person, the guardian or the guardian ad litem.

(3) The guardian ad litem shall file with the court a written report stating the guardian ad litem's conclusions with respect to all of the following:

(A) Whether an independent evaluation should be conducted under par. (f)(4).

(B) Whether the person continues to be a proper subject for guardianship because the person is not competent to refuse psychotropic medication and/or protective services.

(D) Whether the person or the guardian requests a change in status, treatment plan or protective services.

(E) Whether a hearing should be held on the continued need for guardianship because a person is not competent to refuse psychotropic medication and/or protective services.

(4) Following review of the evaluation under par. (f)(1)(a)., and the guardian ad litem's report under par. (f)(3), the court shall order an independent evaluation of the person's need for continued guardianship and protective services or the appropriateness of the treatment plan or protective services, if requested by the person, the guardian or the guardian ad litem or if the court determines that an independent evaluation is necessary.

(5) The court shall order a hearing under this subsection upon request of the person, the guardian, the guardian ad litem or any interested person. The court may hold a hearing under this subsection on its own motion.

(6) The court shall do one of the following after holding a hearing under this subsection or, if no hearing is held, after reviewing the guardian ad litem's report and other information filed with the court:

(A) Order continuation of the guardianship without modification. The standard for continuation of protective services, including psychotropic medication, is a substantial likelihood, based on the person's treatment record, that the person could function at a reasonable level if protective services, including psychotropic medication, were withdrawn.

(B) Order continuation of the guardianship with modification of the protective services order.

(C) Terminate the guardianship and protective services order. A guardian of the estate appointed under this chapter for a married person may exercise with the approval of the court, except as limited under Section 1.28.130 any management and control right over the marital property or property other than marital property and any right in the business affairs which the married person could otherwise exercise if the person were not determined to be a proper subject for guardianship. Under this section, a guardian may consent to act together in or join in any transaction for which consent or joinder of both spouses is required or may execute a marital property agreement with the other spouse, but may not make amend or revoke a will.

(D) General duties. The guardian of the estate shall take possession of all of the ward's real and personal property, and of rents, income, issues and benefits therefrom, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof subject to such possession the title of all such estate and to the increment and proceeds thereof shall be in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to account for it faithfully, to perform all other duties required of the guardian by law and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto.

(g) Retention of assets.

(1) The guardian of the estate may, without the approval of the court, retain any real or personal property possessed by the ward at the time of appointment of the guardian or subsequently acquired by the ward by gift or inheritance so long as such retention constitutes the exercise of the judgment and care tinder the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

(2) The guardian of the estate may, with the approval of the court, after such notice as the court directs, retain any real or personal property possessed by the ward at the time of the appointment of the guardian or subsequently acquired by the ward by gift or inheritance for such period of time as shall be designated in the order of the court.

(h) Continuation of business. In all cases where the court deems it advantageous to continue the business of a ward, such business may be continued by the guardian of the estate on such terms and conditions as may be specified in the order of the court.

(i) Investments

(1) The guardian of the estate may, without approval of the court, invest and reinvest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in accordance with Wisconsin Statute Chapter 881.

(2) The guardian of the estate may, with the approval of the court, after such notice as the court directs, invest the proceeds of sale of any guardianship assets and any other moneys in the guardian's possession in such real or personal property as the court determines to be in the best interests of the guardianship estate, without regard to Wisconsin Statute Chapter 881.

(3) No guardian shall lend guardianship funds to himself or herself.

(j) Sales and other dispositions.

(1) The guardian of the estate may, without approval of the court, sell any property of the guardianship estate acquired by the guardian pursuant to sub. (d),

(2) The court, on the application of the guardian of the estate or of any other person interested in the estate of any ward, after such notice if any, as the court directs, may authorize or require the guardian to sell, mortgage, pledge, lease or exchange any property of the guardianship estate upon such terms as the court may order, for the purpose of paying the ward's debts, providing for the ward's care, maintenance and education and the care, maintenance and education of the ward's dependents, investing the proceeds or for any other purpose which is in the best interest of the ward.

No guardian shall purchase property of the ward, unless sold at public sale with the approval of the court, and then only if the guardian is a spouse, parent, child, brother or sister of the ward or is a co-tenant with the ward in the property.