Adult Guardianship Law in Wisconsin
An adult Guardianship in Wisconsin is a legal relationship between a “ward” (the adult needing the guardianship) and “guardian” of the adult or of the estate. The legal relationship is created by a circuit court or probate court after it has been determined that the ward needs a guardian to make decisions on the ward’s behalf. The court can appoint a guardian for the ward, for the ward’s estate (finances), or both.
Many people believe that spouses, parents, adult children, or other living next of kin are automatically allowed to make decisions on behalf of an adult family member who is (or will likely become) incompetent due to a medical condition. This is not the case in Wisconsin, except under special circumstances.
Rather, in Wisconsin, without legal Guardianship of an adult or Powers of Attorney in place, adults are presumed to be able to make decisions for themselves.
The Guardianship attorneys at Murphy Desmond are experienced in assisting with the adult legal Guardianship process in Wisconsin. They can be reached at email@example.com or by calling 608.257.7181.
Powers of Attorney vs. Adult Guardianship
Powers of Attorney are distinguishable from an adult Guardianship, starting with the legal processes involved.
Powers of Attorney are documents created by a competent adult who chooses an individual (or individuals) to make healthcare and/or financial decisions in the event the adult becomes incapacitated. To be effective, Powers of Attorney must be created prior to the adult’s incapacitation.
For example, a parent with a family history of dementia might create Powers of Attorney that designate an adult son or daughter to make healthcare and financial decisions if the parent becomes incompetent. Similarly, an adult might choose a family member or close friend in a Power of Attorney document to make decisions should the adult somehow become incapacitated.
After Powers of Attorney are activated, the agent may make decisions as instructed in the legal documents.
Guardianships, on the other hand, are created and approved by the courts after an adult (the ward) is deemed incompetent. Oftentimes, the ward was previously independent but became incapacitated or incompetent through situations such as an illness or medical condition (including mental illness), or the result of injuries sustained in an accident. In most circumstances, individuals needing an adult Guardianship do not have Powers of Attorney in place.
A Guardianship may also be done in preparation of becoming the age of majority (age 18) for a minor with disabilities.
After the Guardianship is in place, the legal guardian is allowed to make a wide range of life decisions for the ward.
Special Needs Trusts
In some cases, a Special Needs Trust might be appropriate to assist with the care of a person who is disabled or incapacitated. A Special Needs Trust is a document that is usually part of an estate plan, which includes instructions and funds to care for an adult or a minor with disabilities. It becomes activated after the grantor (the trust creator) passes away.
A Special Needs Trust is frequently created by a parent, legal guardian, or grandparent for the benefit of a loved one. The trust could include funding for long-term services, housing, and/or healthcare expenses of a disabled beneficiary. The grantor of the trust is not necessarily the legal guardian of the beneficiary of the trust.
Powers of Attorney for Adults of All Ages
The estate planning attorneys at Murphy Desmond recommend advanced planning with Healthcare and Financial Powers of Attorney for all people aged 18 and older. The documents should be thorough and address a wide variety of circumstances.
The person chosen to be the agent under a Power of Attorney should agree to serve in that capacity, as it can be a complicated and overwhelming role. A backup agent should be selected, as well.
Having Power of Attorney documents in place is important in helping to avoid the costs and need for a legal Guardianship process.
Murphy Desmond attorneys are experienced in creating adult Guardianships and Powers of Attorney. In addition, our attorneys work with clients every day to devise thorough and strategic estate plans that help ensure peace of mind. We assist clients with probate, contested wills, and fiduciary disputes when needed.
Contact Murphy Desmond S.C. today by calling 608.257.7181 or emailing us at firstname.lastname@example.org. We have offices in Madison, Janesville, Dodgeville, and Appleton, Wisconsin.