Is a Guardianship Necessary if I Already Have Estate Planning Documents?

guardianship-1200x600-300x150One of the common goals of Wisconsin estate planning is to avoid the need for a guardianship. A guardian in this context refers to a person appointed by a judge to make financial or medical decisions for a legally incompetent adult. Ideally, the adult will already have valid powers of attorney and healthcare directives in place naming a person he or she trusts to make those decisions should the need arise.

Wisconsin Court Declines to Return House to Elderly Woman, for Now

Unfortunately, there are situations in which even the estate planning process can be manipulated by individuals who wish to take advantage of an incompetent adult’s condition for their own benefit. When this happens, a guardianship may be necessary to undo the damage. Even then, the law does not necessarily make it easy.

Consider this recent unpublished decision from the Wisconsin Court of Appeals, District I. This case involves a court-ordered guardianship for a 92-year-old woman suffering from dementia. The Milwaukee County Department on Aging initiated the guardianship proceedings after an investigator raised red flags over the management of the woman’s property by her neighbors, who also held her financial and health care powers of attorney.

While ostensibly acting as her agents, the neighbors signed a quitclaim deed transferring the woman’s home to themselves without any consideration. The neighbors then moved the woman out of her home into a hotel. The neighbors later claimed they were simply renovating the property and planned to move the woman back after the work was completed.

The judge assigned to hear the guardianship petition did not believe this explanation. On the spot, the court voided the quitclaim deed and established a temporary guardianship. The judge was apparently so agitated by the neighbors’ conduct that he threatened to hold one of them in contempt of court when he attempted to object to the court’s ruling.

The Court of Appeals, however, said that the trial judge acted prematurely. The neighbors were not actual parties to the guardianship petition. That means they never received formal legal notice or an “opportunity to be heard” on the validity of the quitclaim deed. This amounted to a violation of the neighbor’s due process rights.

The appeals court also noted that the quitclaim deed was signed several months before the guardianship proceeding. Under Wisconsin law, a transfer of property cannot be voided during a temporary guardianship proceeding. For these reasons the Court of Appeals was forced to overrule the trial judge’s order voiding the quitclaim deed. However, the appeals court said that once a permanent guardian is named, that person can file a separate legal proceeding to recover the woman’s house.

Get Help from a Madison Estate Planning Attorney

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.

To attend a free estate planning workshop or to receive our client planner to assess your estate planning mindset, contact our office by calling (608) 268-5751 or use our online contact form.