Guardianship is a legal relationship between a person who is unable to make decision on his or her own behalf and a person appointed by a court to make those decisions. The guardian is often called a "guardian of the person" or a "guardian ad litem". And the guardian cares for a "ward" of the court.

Guardian Ad Litem's - called GAL's - are attorneys. Under Wisconsin law, Gal's must be licensed to practice in the state of Wisconsin. The role of a GAL in a divorce is to represent and protect the rights of a child or children of the marriage. In some instances, a court will ask a GAL to provide a recommendation to the court concerning the care, custody and placement of the parties' minor child or children. Courts often rely upon the Gal's recommendation.

Gal's may ask to visit the home where a child resides, to interview the child's educational environment, teachers and school counselors.

Guardianships are also established for adults such as when an adult is declared incompetent or is otherwise unable to make important life decisions for him or herself. In those instances, a court assigns a guardian to make medical and financial decisions for the adult.

In other situations, such as when a specific medical proxy or guardian of an estate has already been appointed (usually by a living will), and that guardian is a 'spendthrift', then the court may be asked to intervene. The request (called a motion) is usually made by another member of the family, but can be made by medical personnel, caregivers, or other people charged with responsibility for the person in need of a guardian. The guardian's role in those types of situations depends upon the court's orders, but usually will include financial and medical decision making authority.

It sometimes happens in a divorce that a party requires the appointment of a guardian to manage that person's estate or personal affairs. A guardian is appointed after a court proceeding in which the person has been determined to lack the mental capacity to make their his or her own decisions either as to property or as to his or her person, or both. These situations have arisen in Attorney Kathleen Reiley's practice when a party was debilitated by medical illness, accident or because of aging. The person subject to guardianship is called the ward or proposed ward.

When a couple is in divorce proceedings the spouse of the proposed ward cannot be the guardian because there is an inherent conflict of interest. The ward's guardian is effectively the party in the divorce action and is responsible for making determinations about resolution or trial of the issues in the divorce action with the ward's spouse. The non-ward spouse can petition for the appointment of a guardian, but cannot be the guardian.

Before a guardianship is imposed on a person, a guardian ad litem will be appointed to represent the best interests of the proposed ward and to investigate the petition, the proposed guardian and the circumstances of the proposed ward.

If a proposed ward is in need of institutional care, there are complicated questions that involve maintenance for the ward or the ward's spouse, child support for minor children, the proposed ward's eligibility for medical assistance or disability that affect the outcome of the terms of a divorce agreement or judgment.

Grandparent provision in Guardianship statutes

In a situation where one of the child's parent dies, a grandparent or stepparent can petition the court for visitation with the child under the guardianship statutes. The request will be granted only if the parties have notice, there has been a hearing and the court finds that visitation is in the child's best interest. Whenever possible, the court shall consider the wishes of the minor, but this does not mean the child will testify. The court has enforcement powers to see that an order for visitation under this statute is honored. This section of the statues applies to every minor in the state of Wisconsin whose parent or parents are deceased, no matter the date of the death(s).

This statue is similar to the statue in Chapter 767 for divorcing parents. This statue clarifies some existing case law on grandparent visitation in different contexts.

Guardian ad Litem

Guardians ad litem are appointed in contested custody or placement matters and are sometimes appointed in post-judgement placement or custody modification actions. The guardian ad litem represents the best interests of the child, not necessarily what the child wants. A frequent question people ask is at what age is the child entitled to make his or her own decisions about where he or she wants to live. Answer: age 18.

The court will order who pays for the guardian ad litem, but generally the parties split the cost equally or the cost is ordered to be paid out of marital assets.

In some counties, a guardian ad litem may be appointed prior to referral to a case study with the family court counseling service, but often the referral is made at the same time as the GAL is appointed. The GAL is not a witness, so often the GAL will do interviews only in the presence of the family court counselor or social worker appointed to do the custody study. In most cases, the GAL and the family court counselor work together to issue a recommendation on the contested custody and/or placement matters. As a general rule, it is an uphill burden to persuade a court to deviate much from the recommendation of the GAL and the family court counselor if they have been thorough in interviewing the parties, their collateral witnesses, the children and the persons, institutions and organizations in which the children are involved.

Attorney Kathleen Reiley - GAL

Attorney Kathleen Reiley has handled many guardianships and served as a GAL - guardian ad litem - for many children. Many people who have worked with Kathleen highly recommend her as a GAL because of her vivacious personality, quick wit, and care and concern in explaining the law in common terms. Notably, the children adore her.

For more information about guardianships and Gal's, call Attorney Kathleen Reiley (608-246-8309) or send Kathleen Reiley an email.