Wis. Stat. § 48.979

Current through Acts 2023-2024, ch. 272

Section 48.979 - Delegation of power by parent

(1)

(a) A parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, as provided in par. (am), any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. A delegation of powers under this paragraph does not deprive the parent of any of his or her powers regarding the care and custody of the child.

(am) A delegation of powers to an agent under par. (a) may remain in effect for no longer than one year, except that such a delegation may remain in effect for longer than one year if the delegation is to a relative of the child or the delegation is approved by the court as provided in sub. (1m).

(b) If a delegation of powers to an agent under par. (a) is facilitated by an entity, as defined in s. 48.685 (1) (b), that entity shall obtain the information specified in s. 48.685 (2) (b) with respect to the proposed agent and any nonclient resident, as defined in s. 48.685 (1) (bm), of the proposed agent. Subject to s. 48.685 (5), if that information indicates that the proposed agent may not be a contractor, as defined in s. 48.685 (1) (ar), of the entity or that a nonclient resident of the proposed agent may not be permitted to reside with the proposed agent for a reason specified in s. 48.685 (4m) (b) 1 to 5., the entity may not facilitate a delegation of powers to the proposed agent under par. (a). The entity shall provide the department of health services with information about each person who is denied a delegation of powers or permission to reside under this paragraph for a reason specified in s. 48.685 (4m) (b) 1 to 5.

(bm) A parent may not delegate under par. (a) his or her powers regarding the care and custody of a child who is subject to the jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or 938.14 unless the court approves the delegation.

(c) A parent who has legal custody of a child may not place the child in a foster home, group home, shelter care facility, or inpatient treatment facility by means of a delegation of powers under par. (a). Those placements may be made only by means of a court order or as provided in s. 48.63 or 51.13.

(d) A delegation of powers under par. (a) does not prevent or supersede any of the following:

1. An agency, a sheriff, or a police department from receiving and investigating a report of suspected or threatened abuse or neglect of the child under s. 48.981.

2. The child from being taken into and held in custody under ss. 48.19 to 48.21 or 938.19 to 938.21.

3. An intake worker from conducting an intake inquiry under s. 48.24 or 938.24.

4. A court from exercising jurisdiction over the child under s. 48.13 or 938.13.

(dm) A delegation of powers under par. (a) regarding the care and custody of an Indian child for any length of time is subject to the requirements of s. 48.028 (5) (a). A delegation of powers under par. (a) regarding the care and custody of an Indian child for longer than one year is also subject to the requirements of s. 48.028 (3) (c), (4) (a), and (7) (a), (c), (e), and (f).

(e) A parent who has delegated his or her powers regarding the care and custody of a child under par. (a) may revoke that delegation at any time by executing a written revocation and notifying the agent in writing of the revocation. A written revocation invalidates the delegation of powers except with respect to acts already taken in reliance on the delegation of powers.

(1m)

(a) A parent who wishes a delegation of powers under sub. (1) (a) to an agent who is not a relative of the child to remain in effect for longer than one year, the agent to whom the parent wishes to delegate those powers, or an organization that is facilitating that delegation shall file a petition with the court requesting the court's approval of that delegation. The petition shall be entitled "In the interest of .... (child's name), a person under the age of 18." The petitioner shall attach a draft copy of the power of attorney delegating those powers to the petition and shall state in the petition all of the following:

1. The name, address, and date of birth of the child who is the subject of the delegation of powers and whether the child has been adopted.

2. The names and addresses of the parents of the child.

3. The name and address of the person nominated as agent and the relationship of the agent to the child.

4. Whether the parent wishes to delegate to the agent full parental power regarding the care and custody of the child or partial parental power regarding the care and custody of the child and, if the parent wishes to delegate partial parental power, the specific powers that the parent wishes to delegate and any limitations on those powers.

5. The proposed term of the delegation of powers, the reasons for the delegation of powers, and whether the parent proposes to provide any support to the agent during that term. If so, the petition shall indicate the amount of that support.

6. Facts and circumstances showing that the delegation of powers would be in the best interests of the child and that the person nominated as agent is fit, willing, and able to exercise those powers.

7. If the delegation of powers is being facilitated by an entity, as defined in s. 48.685 (1) (b), facts and circumstances showing that the entity has complied with sub. (1) (b) and is permitted under sub. (1) (b) to facilitate that delegation.

8. The information required under s. 822.29 (1) and whether the child is subject to the jurisdiction of the court under s. 48.13, 48.14, 938.12, 938.13, or 938.14.

9. Whether the proceedings are subject to the Uniform Child Custody Jurisdiction and Enforcement Act under ch. 822.

10. Whether the child may be subject to s. 48.028 or 938.028 or the federal Indian Child Welfare Act, 25 USC 1901 to 1963, and, if the child may be subject to those sections or that act, the names and addresses of the child's Indian custodian, if any, and Indian tribe, if known.

(b) Except as provided in par. (bm), the court shall hold a hearing on a petition filed under par. (a) within 45 days after the filing of the petition. The petitioner shall cause the petition and notice of the time and place of the hearing to be served at least 10 days before the time of the hearing on the child, if 12 years of age or over; the child's guardian ad litem and counsel, if any; the parents of the child; the person nominated as agent; any guardian, legal custodian, and physical custodian of the child; any organization that is facilitating the delegation of power; and, if the child is an Indian child, the Indian child's Indian custodian, if any, and tribe, if known. The petition and notice shall be served in person or by 1st class mail. The petition and notice are considered to be served by proof of personal service, by proof that the petition and notice were mailed to the last-known address of the recipient, or, if the recipient is an adult, by the written admission of service of the person served.

(bm) If the petitioner knows or has reason to know that the child is an Indian child, service under par. (b) to the Indian child's parent, Indian custodian, and tribe shall be provided in the manner specified in s. 48.028 (4) (a). No hearing may be held under par. (c) until at least 10 days after receipt of service by the Indian child's parent, Indian custodian, and tribe or, if the identity or location of the Indian child's parent, Indian custodian, or tribe cannot be determined, until at least 15 days after receipt of service by the U.S. secretary of the interior. On request of the Indian child's parent, Indian custodian, or tribe, the court shall grant a continuance of up to 20 additional days to enable the requester to prepare for the hearing.

(c) At the hearing the court shall first determine whether any party wishes to contest the petition. If the petition is not contested, the court shall immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested or if an adjournment is requested, the court shall set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the initial hearing. At the fact-finding and dispositional hearing, any party may present evidence and argument relating to the allegations in the petition.

(d) In determining the appropriate disposition of a petition filed under par. (a), the best interests of the child shall be the prevailing factor to be considered by the court. The court shall also consider whether the person nominated as agent would be fit, willing, and able to exercise the powers to be delegated, the reasons for the delegation of powers, the amount of support that the parent is willing and able to provide to the agent during the term of the delegation of powers, and, if the child is an Indian child, the order of placement preference under s. 48.028 (7) (a) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

(e) At the conclusion of the fact-finding and dispositional hearing, the court shall grant one of the following dispositions, unless the court adjourns the hearing under par. (f):

1. A disposition dismissing the petition if the court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that approval of the proposed delegation of powers is not in the best interests of the child.

2. A disposition approving the proposed delegation of powers, if the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence and determines that the proposed delegation of powers is in the best interests of the child. The disposition may also designate an amount of support to be paid by the child's parents to the agent. If the court approves the proposed delegation of powers, the parent and the person nominated as agent may execute a power of attorney delegating those powers as approved by the court.

(f) If at the conclusion of the fact-finding and dispositional hearing the court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence, but that the person nominated as agent is not fit, willing, and able to serve as agent or that appointment of that person as agent would not be in the best interests of the child, the court may, in lieu of granting a disposition dismissing the petition under par. (e) 1., adjourn the hearing for not more than 30 days and request the petitioner or any other party to nominate a different person as agent.

(g) Any person who delegates his or her powers regarding the care and custody of a child to a person who is not a relative of the child for longer than one year without first obtaining the approval of the court as provided in this subsection is subject to a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.

(2) A power of attorney complies with sub. (1) (a) if the power of attorney substantially conforms to the following form:

power of attorney

delegating parental power

AUTHORIZED BY s. 48.979, Wis. Stats.

NAME(S) OF CHILD(REN)

This power of attorney is for the purpose of providing for the care and custody of:

Name, address, and date of birth of child ....

Name, address, and date of birth of child ....

Name, address, and date of birth of child ....

DELEGATION OF POWER TO AGENT

I, .... (name and address of parent), state that I have legal custody of the child(ren) named above. (Only a parent who has legal custody may use this form.) A parent may not use this form to delegate parental powers regarding a child who is subject to the jurisdiction of the juvenile court under s. 48.13, 48.14, 938.12, 938.13, or 938.14, Wis. Stats.

I delegate my parental power to:

Name of agent ....

Agent's address ....

Agent's telephone number(s) ....

Agent's e-mail address ....

Relationship of agent to child(ren) ....

The parental power I am delegating is as follows:

FULL

(Check if you want to delegate full parental power regarding the care and custody of the child(ren) named above.)

.... Full parental power regarding the care and custody of the child(ren) named above

PARTIAL

(Check each subject over which you want to delegate your parental power regarding the child(ren) named above.)

.... The power to consent to all health care; or

.... The power to consent to only the following health care:

.... Ordinary or routine health care, excluding major surgical procedures, extraordinary procedures, and experimental treatment

.... Emergency blood transfusion

.... Dental care

.... Disclosure of health information about the child(ren)

.... The power to consent to educational and vocational services

.... The power to consent to the employment of the child(ren)

.... The power to consent to the disclosure of confidential information, other than health information, about the child(ren)

.... The power to provide for the care and custody of the child(ren)

.... The power to consent to the child(ren) obtaining a motor vehicle operator's license

.... The power to travel with the child(ren) outside the state of Wisconsin

.... The power to obtain substitute care, such as child care, for the child(ren)

.... Other specifically delegated powers or limits on delegated powers (Fill in the following space or attach a separate sheet describing any other specific powers that you wish to delegate or any limits that you wish to place on the powers you are delegating.) ....

This delegation of parental powers does not deprive a custodial or noncustodial parent of any of his or her powers regarding the care and custody of the child, whether granted by court order or force of law.

THIS DOCUMENT MAY NOT BE USED TO DELEGATE THE POWER TO CONSENT TO THE MARRIAGE OR ADOPTION OF THE CHILD(REN), THE PERFORMANCE OR INDUCEMENT OF AN ABORTION ON OR FOR THE CHILD(REN), THE TERMINATION OF PARENTAL RIGHTS TO THE CHILD(REN), THE ENLISTMENT OF THE CHILD(REN) IN THE U.S. ARMED FORCES OR TO PLACE THE CHILD(REN) IN A FOSTER HOME, GROUP HOME, SHELTER CARE FACILITY, OR INPATIENT TREATMENT FACILITY.

EFFECTIVE DATE AND TERM OF THIS DELEGATION

This Power of Attorney takes effect on .... and will remain in effect until .... If no termination date is given, this Power of Attorney will remain in effect for a period of one year after the effective date, but no longer. If the termination date given is more than one year after the effective date of this Power of Attorney, this Power of Attorney must be approved by the juvenile court. This Power of Attorney may be revoked in writing at any time by a parent who has legal custody of the child(ren) and such a revocation invalidates the delegation of parental powers made by this Power of Attorney, except with respect to acts already taken in reliance on this Power of Attorney.

SIGNATURE(S) OF PARENT(S)

Signature of parent .... Date ....

Parent's name printed ....

Parent's address ....

Parent's telephone number ....

Parent's e-mail address ....

Signature of parent .... Date ....

Parent's name printed ....

Parent's address ....

Parent's telephone number ....

Parent's e-mail address ....

WITNESSING OF SIGNATURE(S) (OPTIONAL)

State of ....

County of ....

This document was signed before me on .... (date) by .... (name(s) of parent(s)).

Signature of notary ....

My commission expires: ....

STATEMENT OF AGENT

I, .... (name and address of agent), understand that .... (name(s) of parent(s)) has (have) delegated to me the powers specified in this Power of Attorney regarding the care and custody of .... (name(s) of child(ren)). I further understand that this Power of Attorney may be revoked in writing at any time by a parent who has legal custody of .... (name(s) of child(ren)). I hereby declare that I have read this Power of Attorney, understand the powers delegated to me by this Power of Attorney, am fit, willing, and able to undertake those powers, and accept those powers.

Agent's signature .... Date ....

APPENDIX

(Here the parent(s) may indicate where they may be located during the term of the Power of Attorney if different from the address(es) set forth above.)

.... I can be located at:

Address(es) ....

Telephone number(s) ....

E-mail address(es) ....

.... Or, by contacting:

Name ....

Address ....

Telephone number ....

E-mail address ....

.... Or, I cannot be located

(3)

(a) In this subsection:

1. "Agent" means a person to whom delegation of the care and custody of a child under this section is facilitated by an organization.

2. "Organization" means an organization that facilitates delegations of the care and custody of children under this section.

(b) The department may promulgate rules to implement this section. If the department promulgates those rules, those rules shall include rules establishing all of the following:

1. Training requirements for the staff of an organization, including training in identifying children who have been abused or neglected and the laws and procedures under s. 48.981 governing the reporting of suspected or threatened child abuse or neglect.

2. Screening and assessment requirements for a proposed agent, including a screening of the personal characteristics, health, and finances of the proposed agent and of the physical environment and safety of the proposed agent's home and, based on that screening, an assessment of the proposed agent's fitness to provide for the care and custody of the child and ability to meet the child's needs. The rules promulgated under this subdivision shall prohibit an organization from facilitating a delegation of the care and custody of a child to a proposed agent unless the proposed agent is fit to provide for the care and custody of the child and able to meet the child's needs.

3. Training requirements for an agent, including the training described in subd. 1. and training in the expectations of an agent specified in subd. 4.

4. The expectations of an agent with respect to the care and custody of the child, including expectations relating to the care, nurturing, protection, training, guidance, and discipline of the child; the provision of food, shelter, education, and health care for the child; cooperation with the child's parents in coparenting the child; and cooperation with the organization in facilitating visitation and other communications with the child's parents and in otherwise complying with the expectations of the organization.

5. A requirement that an organization regularly monitor an agent and the child whose care and custody is delegated to the agent and maintain communications with the child's parents.

Wis. Stat. § 48.979

Amended by Acts 2015 ch, 381,s 7, eff. 4/27/2016.

Amended by Acts 2015 ch, 195,s 9, eff. 3/2/2016.

Amended by Acts 2013 ch, 335,s 15, eff. 4/25/2014.

Amended by Acts 2013 ch, 335,s 14, eff. 4/25/2014.

Amended by Acts 2013 ch, 314,s 10, eff. 4/18/2014.

Amended by Acts 2013 ch, 314,s 9, eff. 4/18/2014.

Amended by Acts 2013 ch, 314,s 8g, eff. 4/18/2014.

Amended by Acts 2013 ch, 314,s 8, eff. 4/18/2014.

Amended by Acts 2013 ch, 314,s 7, eff. 4/18/2014.

2011 a. 87; correction in (2) (form) under 35.17.