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This article discusses frequently asked questions regarding Wisconsin guardianship including: What is a guardian for an adult? , What other types of guardians are there? , What are the guardianship positive functional purposes?, and What are the drawbacks of being a guardian?

This article discusses frequently asked questions regarding Wisconsin guardianship.

What is a guardian for an adult?  

A guardian for an adult is a person or organization appointed by a court to act on behalf of an adult who has been determined to have a functional impairment in decision-making or communication that meets the legal criteria for incompetence. No one can be a guardian for an adult in Wisconsin unless they are appointed by a court, and no guardian has any powers over an adult other than those granted by laws and court order.  

Anyone above the age of 18 is considered an adult in Wisconsin, and is deemed to be capable of managing his or her own finances, deciding where to reside, consenting to medical care, voting, making contracts, marrying, and exercising his or her legal rights as an adult. Because a person has a disability, this presumption does not change. Family members may be surprised to learn that an adult is presumed competent to make his or her own decisions, and that they have no legal right to be engaged in, or even know about, the care that a relative is receiving. Family members, for example, may be denied information regarding the person's needs and treatment if he or she is unable or unwilling to give informed consent to the information's distribution.  

Since December 1, 2006, guardianship orders in Wisconsin have been expected to be tailored to the unique requirements of the person and to be as unrestrictive of the person's rights as feasible. The guardianship order describes the areas of decision-making where the guardian has jurisdiction to act, as well as any limitations the court has placed on the person's ability to exercise rights. As a result, even if guardianship is ruled to be a required form of support, it is still necessary to consider what rights the person can still exercise for himself or herself, as well as what powers the guardian requires to provide the person with protection from harm.  

Guardianship takes away an adult's right to make decisions for himself or herself in areas where the guardian has been given authority by a court order. While one of a guardian's responsibilities is to strive to understand and respect the person's desires, the guardian retains final decision-making authority. A guardian's authority, on the other hand, is limited to making decisions, giving consents, and acting as an advocate. If a person disagrees or physically fights a guardian's decision, the guardian's authority to force the individual to cooperate with the guardian's decision is severely limited.  

Because a guardian receives his or her authority from the state, he or she is bound by the same constitutional restrictions that govern the state's ability to intervene in the lives of its citizens. This means that the guardian must have a compelling basis for interfering with the individual's constitutional rights.  

The guardian has a legal duty to act in the person's best interests at all times. Because guardianship is established by the court, a guardian's decisions are always subject to court scrutiny and oversight.  

What other types of guardians are there?  

A guardian of the estate and a guardian of the person are the two types of guardians. A court appoints a guardian of the estate for an adult who need assistance in making some or all financial or property choices, signing contracts, or representing the individual in a legal procedure involving money or property. A court appoints a guardian of the person for a person who need assistance in making some or all personal decisions, such as medical care or support services, or deciding where to reside. A court may appoint the same person(s) as both the estate and the person's guardian, or the roles may be split.  

A temporary guardian is a person or estate's guardian who is appointed for a specific period of time. The powers that the temporary guardian has to exercise must be specified in the order appointing him or her. Because there is an immediate need for a guardian, a temporary guardian may be appointed while the procedure for appointing a permanent guardian is being completed. When the only need for a guardian is to carry out a single isolated act, a temporary guardianship may be appropriate.  

A standby guardian can be appointed by the court for either a guardian of person or a guardian of estate. Unless the guardian becomes permanently or temporarily unavailable, a standby guardian has no capacity to intervene. For example, if the permanent guardian is going to be out of the country for a lengthy period of time, the standby guardian can take over as guardian. If the guardian dies or resigns, the standby guardian is selected to become the permanent guardian. When a standby guardian begins to execute guardian powers, he or she must notify the court and get court papers establishing his or her authority.  

A guardian appointed before December 1, 2006 under a court order can be either a complete or restricted guardian. This is because, until December 1, 2006, the person had no rights or powers over any area of decision-making unless the judge specifically found in the order that the person was competent to exercise the right or power. As a result, many people who could have exercised some rights or powers ended up with full guardianships because the court simply determined that the person satisfied the criterion for incompetence without considering whether or not he or she could still make decisions or exercise some rights. Any judicial review of a pre-12/1/06 guardianship order provides a chance to alter the order so that it treats rights and powers more individually.  

What are the guardianship positive functional purposes?  

A guardian of an adult's main responsibilities include: 

  • Acting on behalf of an adult who is unable to act for himself or herself to exercise rights.  

  • Acting as an advocate for the best interests of the adult.  

  • Protecting the adult against abuse, neglect, self-neglect, financial exploitation, and rights violations.  

A person with legal authority to act on behalf of the person, such as a court-appointed guardian, can be a vital source of assistance:  

  • Some persons are unable to comprehend or express their legal, civil, and human rights, putting them at risk of being exploited or dominated by others or by organizations and organizations. When another person, group, or institution is in a position to intimidate or isolate the person, the risk is especially high. An advocate who cares about the individual can be a crucial barrier against abuse, neglect, and exploitation, as well as a source of support for the person to live a normal life. Often, effective advocacy requires legal access to information and the capacity to act on behalf of the individual conferred by guardianship.  

  • Informed consent or legal ability may be required for access to needed services.  

  • Even with the best help, some people will make decisions that put their health and safety at intolerable danger. When a person's mental handicap prevents them from understanding the risk or factoring it into their decision-making, and other forms of help are ineffective, a guardian may be required to protect them from serious damage.

What are the drawbacks of being a guardian?  

The courts, the service system, and guardians themselves have a natural propensity to sometimes abuse their power to make choices for other people. Understanding the reasons behind this tendency toward over-protection, as well as the consequences associated with it, might help you avoid it. Because:

  • If chances are made and things go wrong, more work will be required in determining what to do next. When a risk is taken and something "bad" happens, people who are perceived as responsible for the person are more likely to be blamed than when the individual is denied the freedom to take risks.  

  • Fears about one's safety are frequently founded on personal experience. Family members and others involved in the person's life, on the other hand, frequently overestimate the security that guardianship can provide, fail to consider other forms of support that may provide better protection of both safety and rights, and fail to consider the benefits of risk-taking in terms of the person's learning opportunity in setting goals, trying new things, and learning from failures.  

To counteract the urge toward over-protection, it's important to remember the costs of abusing power to make decisions for others:  

  • Determining that a person is "incompetent" can be a difficult procedure because it focuses the person's incapacity rather than his or her strengths.  

  • When guardianship is granted, the person may feel as if he or she has been relegated to second-class status. A person who is declared incompetent loses many basic rights and may experience a loss of dignity and respect as a result of having to seek the agreement and aid of another person for numerous actions that other people take for granted.  

  • Even though the individual retains rights and abilities, those who learn that the person has a guardian may conclude that the individual is completely incapacitated and regard him or her as less capable than they are.  

  • Loss of decision-making capacity limits a person's ability to learn to make decisions and, as a result, acquire or maintain decision-making abilities. Making mistakes is how we all learn. A person who is denied the right to take risks is also denied the chance to learn and grow. We all take chances in the hopes of acquiring something valuable, and we all get hurt along the way. If a person is denied the right to take risks, he or she will never have the chance to pursue goals that aren't "sure things," to learn the real-world boundaries of what is feasible, or to experience the thrill of achieving goals that others thought were unattainable.  

  • A person who has been trained to trust and accept others' decisions and who is unaware of his or her basic rights and how to assert them is more vulnerable to abuse and exploitation by others. We must embrace the uncomfortable fact that the person will sometimes say "no" to us if we want him or her to be able to say "no" to others.  

  • When someone else has authority, the system and support circle are no longer challenged to always look to the individual as the decision-maker and to come up with creative ways to help him or her grasp choices, express preferences, and engage in risky activity.  

  • Incapacity can be "learned." A person who is accustomed to having others make decisions for him or her is likely to lose confidence in oneself or herself and believe that he or she is incapable of acquiring decision-making skills.  

  • Substituting decision-making in areas where it is not required produces extra work for the decision-maker, who will feel accountable for each area in which he or she has been given authority, as well as fertile ground for unneeded dispute. Guardianship should not be imposed to shield the individual from a risk of harm that he or she is unlikely to face in his or her current circumstances.

Request a consultation with an attorney. Call our office at (630) 324-6666 or schedule a consultation with one of our experienced lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.

To learn about most frequently asked questions regarding guardianship of a child, click here.  

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