Britney Spears and the #FreeBritney movement is in the news again, which means it’s a good time to shine a spotlight on guardianships and conservatorships in the State of Wisconsin. In 2008 a conservatorship action in California was brought for Britney Spears due to concerns over her mental health. It’s important to note that California has different laws regarding incompetency than Wisconsin. This is common across the nation with each state bringing slightly different laws and concepts to deal with every day situations. It’s one of the interesting and beautiful concepts of federalism. In full disclosure I am not licensed to practice law in California, so this post will not go into much discussion regarding Ms. Spears’ conservatorship. For purposes of this article, it’s assumed that a conservatorship in California is put in place by a court to appoint a third party in a decision-making role for a person who cannot make decisions for themselves due to a physical or mental condition.
Conservatorships Versus Guardianships in Wisconsin
In Wisconsin we do have a court proceeding called a conservatorship, but it is different from what is described for California. The action that seems to be analogous to California’s conservatorship is something Wisconsin calls a guardianship. A guardianship action is a formal court action where an individual is determined incompetent, and if the person is determined to be incompetent a guardian is appointed to make decisions on the incompetent individual’s behalf.
Types of Guardianships and What They Mean
There are two different forms of guardianships: Guardian of the Person and Guardian of the Estate. A Guardian of the Person makes personal decisions for the incompetent individual. These personal decisions are often decisions regarding health care, but can also decisions such as the decision to marry or divorce. A Guardian of the Estate is put in charge of the incompetent individual’s business dealings and finances. The Guardian of the Estate will have a fiduciary duty to the incompetent individual and will be required to file an inventory within 60 days of being appointed and file an account with the court annually.
A guardianship can be an invasive proceeding. When a person is deemed incompetent their rights are taken away from him or her. This means that the individual cannot make decisions for themselves; with such decisions as how to manage his/her money, what medical procedures are used for treatment, or whether he/she can marry or get divorced. As a result, the law states that accommodations must be made to put in the least number of restrictions possible and any appointed guardian needs to discuss their decisions with the incompetent individual as much as possible. The importance of these proceedings means that guardianship proceedings are considered adversarial, with the proposed ward having the right to an attorney as well as having a Guardian ad Litem appointed to advocate for the proposed ward’s best interest. The adversarial nature of the action means a guardianship case can become ugly and expensive quickly when everyone is not on the same page.
Meaning of Conservatorship in Wisconsin
A conservatorship is an interesting contrast to a guardianship in Wisconsin. In many ways a conservatorship is extremely similar to a Guardian of the Estate. A conservator will have the same powers as a guardian of the estate. A conservator will have the same duties as a guardian of the estate. A conservator will even fill out virtually the same forms as a guardian of the estate every year. The key difference between the two actions is that a conservatorship is a voluntary action. This means the individual is the only one who can bring a conservatorship and does it of his/her own freewill. Since the action is voluntary the individual is NOT declared incompetent, meaning that the individual gets to keep his/her dignity, but also the right to make decisions on her behalf.
Conservatorship and guardianships are both court actions. These positions are created by the Court and have their authority stem from court orders. While both proceedings are closed proceedings, meaning that the hearings and information is not available to the public, it does mean that the proposed ward’s affairs are going to be discussed in court where lawyers, court officials, and family members are going to hear about the individual’s personal struggles and finances. This can be relatively smooth or deeply uncomfortable. These actions are also difficult to modify and often require further hearings and court orders. The guardian or conservator will also need court approval for some actions, such as selling real estate.
Avoiding the Need for Guardianships and Conservatorships
The good news is that guardianships and conservatorships are easy to avoid in today’s world. The simplest solution is to form a Power of Attorney for Finances and a Power of Attorney for Health Care. These are simple documents that can be structured to your wishes and are relatively inexpensive to create. Now is the perfect time to look at your own personal plan and see if you have the documents in place, and if you don’t contact the attorneys at Peterson, Berk & Cross today to help set up a comprehensive plan that respects your wishes and protects your rights.
About the Author
Attorney Devin Shanley has almost a decade of professional experience working in family law, estate planning and elder law, and has served as a Guardian ad Litem. Devin has a commitment to seeing each case as something beyond a legal puzzle to solve. When meeting with clients, he wants to understand the relationships and family dynamics that need to be preserved to have an optimal outcome. Devin primarily focuses his law practice on wills, powers of attorney, trusts, guardianships and elder law planning. The estate planning section at Peterson, Berk & Cross, S.C. offers a FREE, 30-minute consultation.