As it stands, Wisconsin has no training requirements for those who volunteer and are appointed as a guardian, but a bill currently before the Wisconsin Legislature may change that.
Senate Bill 92 proposes a list of requirements and training that a potential guardian must go through before taking guardianship.
Over time, it has become clear that some guardians can lack the adequate knowledge and or resources necessary for effectively carrying out their role. It is of vital importance to everyone involved that guardians fully understand the powers and limitations of their role.
Alexandra K. Evans, Marquette 2021, is an associate attorney with
Hippenmeyer, Reilly, Blum, Schmitzer, Fabian & English, S.C., Waukesha. She focuses her practice on family law matters, including divorce, post-judgement custody, placement, child support issues, and guardian ad litem work.
As an example, in
In re Guardianship and Protective Placement of Catherine P.,1 the Wisconsin Court of Appeals held that the ward’s guardian, who was also the ward’s daughter, exceeded her decision-making authority when attempting to move the ward out of state and change her domicile without first obtaining express permission from the court. The court of appeals noted that the guardian improperly interpreted a statute to allow her the authority to transfer her mother to a different state and facility without court approval, relying on the fact that the new facility was less restrictive.2
By providing training requirements, it is possible to minimize the existence of cases like the one referenced above, because the guardians will already have concrete and up-to-date information provided to them on what exactly they are able to do as guardians.
That being said, there will still be some who intentionally thwart the system by taking action contradictory to their training – but the benefits of proposed requirements have the potential to outweigh the burdens.
Proposed Requirements
If implemented, the statute would impose a full-scale training program that includes grants to support an educational system for guardians. It requires an individual with “expertise in state guardianship law” to direct the training and provide support for the guardians and wards. The preferred methods of training will be online modules that can be accessed for free.3
The statute lays out two different sets of required trainings for guardians of the person and guardians of the estate.
Generally speaking, a guardian must complete training in seven areas prior to the hearing for permanent guardianship. These seven areas are:
The duties and required responsibilities of a guardian under the law and limits of a guardian's decision-making authority.
Alternatives to guardianship, including supported decision-making agreements and powers of attorney.
Rights retained by a ward.
Best practices for a guardian to solicit and understand the wishes and preferences of a ward, involving a ward in decision-making, and taking a ward's wishes and preferences into account in decisions made by the guardian.
Restoration of a ward's rights and the process for removal of guardianship.
Future planning and identification of a potential standby or successor guardian.
Resources and technical support for guardians.
Unintended Consequences of Requirements
Frequently, guardians are relatives or friends of the person in need of guardianship. This special relationship incentivizes them to petition for guardianship, so that their loved one does not either become a ward of the state or have a stranger serve as guardian for them.
In most cases, it should be encouraged that a special relationship exists with a guardian and their ward, which can foster an already existing bond and aid the relationship between the ward and the guardian.
Due to the lack of requirements to becoming a guardian, the existing system makes it simpler to petition for guardianship. While this does lead to issues discussed above, there are still positives that accompany the lack of requirements.
Requirements: A Hindrance?
Someone who is petitioning for guardianship takes on a huge responsibility, and their ability to do so with few barriers is likely an important aspect to them. It is a concern that the implementation of extensive requirements for guardians could discourage those who would otherwise be competent guardians.
Petitioning for a guardianship for someone is a big responsibility in and of itself – is that not enough a burden to place on the individual?
Clearly, we want our guardians to be knowledgeable, but at what point will it hinder the ability of potential wards to find their best guardians? If the requirements are too stringent, they may very well scare away people who do not have the time to devote to the upfront training.
Conclusion: Mitigating a Potential Hindrance
While there is a chance that imposition of training requirements could deter prospective guardians from petitioning for guardianship, making the training free and easily accessible online mitigates this potential hardship.
Requiring that training be completed prior to the guardianship hearing can put additional pressures on a proposed guardian and could possibly delay the implementation of the guardianship itself.
While the training requirements appear practical and useful, it is worth questioning whether those in need of guardianships and their proposed guardians should be subjected to additional barriers.
This article was originally published on the State Bar of Wisconsin’s
Children & the Law Section Blog. Visit the State Bar
sections or the
Children & the Law Section webpages to learn more about the benefits of section membership.
Endnotes
1
In re Guardianship and Protective Placement of Catherine P., 2006 WI App 105, 294 Wis. 2d 637, 718 N.W.2d 205.
2
Id. at ¶ 57, 294 Wis. 2d at 663, 718 N.W.2d at 219.
3
Guardian Training Requirements, WI SB 92 (2021-2022).
