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September 3, 2012
Article on Wisconsin's Foreign Guardianship Transfer Law
Kurt M. Simatic (Candidate for J.D., May 2012, Marquette University Law School) recently published his article entitled Someone's Afoot: Wisconsin's Foreign Guardianship Transfer Law, 95 Marq. L. Rev. 1083 (2012). The introduction from the article is below:
Imagine the following situation: Susan Smith, a resident of Wyoming, has accepted a job offer in Milwaukee, Wisconsin. Besides the usual preparations that precede a move to a new state, Susan has a special responsibility requiring her attention: Susan serves as the guardian of the person and the estate for her elderly mother, Jane Doe, who is also a resident of Wyoming. Not wanting to leave her elderly mother alone in Wyoming, Susan intends to bring her along to Wisconsin. In order to ensure a smooth transition and maximum protection for both guardian and ward, Susan must begin a process in a Wisconsin court--and by extension the Wyoming court that initially granted the guardianship--that will ultimately transfer the guardianship established in Wyoming to Wisconsin. While Wisconsin has a procedure to accommodate the transfer of these “foreign” guardianships that many other states lack, Susan should consider several important questions before beginning the transfer process.
Should she begin the transfer process in Wisconsin or in Wyoming? What happens if the Wyoming court is unresponsive or slow to act? What are the consequences to Susan and her mother if Wyoming's guardianship laws are vastly different from Wisconsin's guardianship laws? Should Susan or her mother request a hearing in a Wisconsin court upon transfer of the foreign guardianship? If the Wisconsin court grants the transfer, will it impose the same fiduciary duties on Susan and extend the same rights to her mother as a domestic guardianship does? Should Susan even bother with the transfer of the Wyoming guardianship to Wisconsin? Should she start over with a new guardianship petition in Wisconsin?
Consider a further complication in this scenario: in Wyoming, Jane Doe resides in a nursing home and needs almost constant care for her dementia. While the guardianship of the person and the estate was sufficient for Jane to obtain some type of protective services in Wyoming, will Susan need to obtain both a transferred guardianship and a protective placement order in Wisconsin, or is the determination under the Wyoming guardianship enough? Will the Wyoming guardianship need to be transferred and received in Wisconsin before a Wisconsin court grants a protective placement order?
Susan's--and her mother's--situation is not unique. Although the above scenario is hypothetical, these circumstances and their related problems are growing in frequency. This Comment will examine the process used by out-of-state (“foreign”) guardians to transfer their guardianships and their wards to Wisconsin, bring attention to shortcomings in the current process, and suggest possible solutions. While questions of jurisdiction, venue, and recognition are also worthy of examination, this Comment focuses exclusively on the transfer process and its relevance to judges, practitioners, guardians, probate officers, legislators, and other interested parties.
Part II of this Comment examines guardianships in general and distinguishes them from foreign guardianships; in addition, Part II highlights the importance of having a foreign guardianship procedure, especially in light of an increasingly “gray” and mobile society. Part III explores the evolution of Wisconsin's guardianship and foreign guardianship laws, from now-repealed chapter 880 of the Wisconsin Statutes, then to the Wisconsin Supreme Court's invitation to the Legislature in Jane E.P. to set standards for transferring and accepting foreign guardianships in this state, and finally to the new chapter 54. Part IV examines the 2006 creation of chapter 54, in which the Legislature substantially rewrote Wisconsin guardianship law and created the present foreign guardianship standards; Part IV then compares these standards to surrounding states and to those states with particularly innovative approaches. Part V discusses shortcomings with the foreign guardianship transfer process, along with several options for improvement. Options for improvement include minor revisions to the current law, adopting a model act to replace the current law, and having no transfer law at all and simply requiring guardians to file new guardianship petitions in Wisconsin. Finally, Part VI provides a summary of this Comment and highlights its practical implications to practitioners, their clients, and even legislators.
September 3, 2012 in Articles, Guardianship | Permalink
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