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Estate Planning

To be a guardian for someone is to have the legal authority to make decisions for that person (the ward), much like a parent has for a minor child. A guardianship may be necessary for an adult who is incapacitated or incompetent or has a health or medical condition or cognitive deficit. “Incapacitated” and “incompetent” generally means a person is unable to  process and understand information to the extent of impairing his or her decision-making ability. Typical reasons for a finding of legal incompetence are infirmities of aging, dementia, coma, or other similar mental condition, and developmental disability. 



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Minor or juvenile guardianship gives a person other than a parent care of and decision-making power and legal authority over someone else's child. Only a parent with legal custody or a court-appointed guardian has the right to do things like enroll a child in school or take the child to the doctor (exception: see the section on Parental POA below). If a minor child is living with someone other than a parent, it is very important that the caregiver have either a guardianship for the child or that the parent has executed a parental POA.

Minor Guardianship

A parental POA is a document that can be used to temporarily grant legal authority to an adult other than a child’s parent to make decisions for or take actions on behalf of a minor child. A parental POA would be a good tool to use, for instance, if children are staying with their grandparents while Mom and Dad leave the state or the country for vacation or other reason. Completing a parental POA would give grandparents the authority to authorize medical care for the children, deal with school authorities, and other day-to-day actions that a parent must take on behalf of a minor child. 

A parental POA in Wisconsin is only valid if executed by each parent who has legal custody of the child. Married parents have joint legal custody (meaning they each have legal custody) by operation of law and, therefore, would both have to execute a parental POA for it to be valid. Single parents may have sole legal custody or joint legal custody, depending on their respective court orders. If one parent has sole legal custody that parent can independently execute a parental POA, but if the parents have joint legal custody then both parents must sign the parental POA in order for it to be valid. A parental POA is good for a designated time not to exceed one year.

Parental Powers of Attorney

(Power of Attorney Delegating Parental Authority)

Legal incompetency is a judicial determination but the judge will rely heavily on medical or psychological reports in reaching that determination. Guardianships can involve either full transfer of rights to the guardian, or partial transfer  in which the ward retains some decision-making power. A guardian of the person has the right to make (or assist the ward in making) decisions regarding medical care and services, as well as all other non-financial types of decisions.

A guardian of the person may place a ward in a residential setting (an adult family home, group home, assisted living, or nursing home), however if the placement is one licensed for more than 16 beds, a court order is needed. That type of order is called a protective placement order and specifies what type and size of placement is the least restrictive type that will meet the ward’s needs. The law requires that a person be protectively placed in the setting that imposes the least restriction (freedom of movement, independence, door locked or unlocked) that still meets the individual's needs for safety and care.

A guardian of the estate handles the ward’s finances. A guardian of the estate has the ability to pay bills on behalf of the ward, and handle other financial transactions, which could include the sale of real estate or the disbursement of funds. Frequently, a guardian of the estate must apply for court approval for many types of transactions.

Guardians are typically a family member or close family friend. If there is no one known to the ward who is willing, able, or appropriate to act as a guardian, the court may appoint a volunteer guardian or a corporate guardian for the ward.

Guardianship actions are frequently initiated by a family member or close friend. In some instances the county department of human services is contacted by a person or medical facility and then may initiate a guardianship and protective  placement action.