Section 879.23. Guardian ad litem.

 

(1)   Virtual representation. A guardian ad litem shall be appointed for any person interested who is a minor or an individual adjudicated incompetent and has no guardian of his or her estate, or where the guardian of the minor's or individual's estate fails to appear on the minor's or individual's behalf or where the interest of the minor or individual is adverse to that of the guardian of the minor's or individual's estate. A guardian ad litem may be appointed for persons not in being or presently unascertainable. A guardian ad litem shall not be appointed or appear in the same matter for different persons whose interests are conflicting.

(2)   Time of appointment. The court may appoint the guardian ad litem at the time of making the order for hearing the matter, and require notice of the appointment and of the hearing to be served upon the guardian ad litem; or the guardian ad litem may be appointed on the day of the hearing and before any proceedings are had.

(3)   Duration of appointment. The guardian ad litem shall continue to act throughout the proceeding in relation to the same estate or matter until proper distribution has been made to or for the benefit of the person the guardian ad litem represents, unless earlier discharged by the court. A guardian ad litem shall be discharged by the court when it appears that the minority or incompetency has terminated or when it appears that the person the guardian ad litem represents no longer has an interest in the estate or matter. If a will creates a trust, a guardian ad litem appointed in the administration of the estate has no responsibility in regard to the administration of the testamentary trust unless reappointed for that purpose.

(4)   Who may serve.

(a) Except as provided in par. (b) or (c) , the guardian ad litem appointed under this section shall be either an attorney admitted to practice in this state or a parent or child of the minor or individual adjudicated incompetent to be represented by the guardian ad litem. A parent or child of the person to be represented may be appointed the guardian ad litem under this section only if the court finds either that the prospective guardian ad litem is an attorney admitted to practice in this state or is otherwise suitably qualified to perform the functions of the guardian ad litem.

(b) In matters relating to the probate of an estate in which a minor has an interest that is unlikely to exceed $10,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If no parent of the minor is qualified and willing to serve as guardian ad litem, the guardian ad litem shall be an attorney as provided in par. (a) .

(c) In matters relating to the probate of an estate in which an individual adjudicated incompetent has an interest that is unlikely to exceed $1,000 in value, the guardian ad litem shall be a surviving parent, unless the court finds that no surviving parent is qualified and willing to serve as the guardian ad litem. If the court finds that no surviving parent is qualified and willing to serve, the guardian ad litem shall be an adult child of the individual, unless the court finds that no adult child of the individual is qualified and willing to serve as the guardian ad litem. If the court finds that neither a parent nor an adult child of the individual adjudicated incompetent is qualified and willing to serve as the guardian ad litem, the court shall appoint an attorney as provided in par. (a) .

(d) The guardian ad litem may be allowed reasonable compensation and may be allowed reimbursement for necessary disbursements, the amount of which shall be set by the court and paid out of the estate.

(5)   Virtual representation. The court may dispense with or terminate the appointment of a guardian ad litem for an interested person who is a minor, an individual adjudicated incompetent, not in being, or presently unascertainable, if there is a living person, of full legal rights and capacity, who is a party to the proceeding and has a substantially identical interest in it.

Sup. Ct. Order, 50 Wis. 2d vii (1971); 1973 c. 233 ; 1977 c. 299 ; 1979 c. 110 s. 60 (2) ; 1993 a. 486 ; 1995 a. 225 ; 1997 a. 290 ; 2005 a. 387 . Cross-reference: See s. 757.48 for general provisions on guardian ad litem. Factors for determining a reasonable number of hours that a guardian ad litem spent on a case are discussed. The guardian ad litem is entitled to compensation for collecting a fee to the extent that the estate's opposition to the fee was unreasonable. In Matter of Estate of Trotalli, 123 Wis. 2d 340 , 366 N.W.2d 879 (1985).