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Jensen v. McPherson11/13/2002
re of the state." See State Dep't of Public Welfare v. DeBaker, 3 Wis. 2d 133, 142, 88 N.W.2d 22 (1958). In Wisconsin, guardians are extensively regulated by Wis. Stat. ch. 880. As such, we consider it an accurate expression of our state legislature's intent to examine the guardianship provisions of ch. 880 in order to understand the requirements of Wis. Stat. § 803.01. In Wis. Stat. § 880.01(3) a "guardian" is defined as "one appointed by a court to have care, custody and control of the person of a minor or an incompetent or the management of the estate of a minor, an incompetent or a spendthrift." (Emphasis added.)
. This definition makes clear that a "guardian" must be "appointed by a court" whether general guardian of the property or guardian ad litem. Wis. Stat. § 880.01(3). Thus, this definition also demonstrates that our legislature did not intend "general guardian" of the property to be equated with a minor's "natural guardian" who needs no court appointment. Additionally, Wis. Stat. § 803.01(3)(a) is silent as to appearance by a natural guardian or biological parent and we think that silence speaks volumes.
. Nonetheless, McPherson argues, without support, that Erik's parents were Erik's "general guardians." By implication, McPherson equates "general" with "natural." However, our analysis demonstrates that in order to be Erik's general guardians, Erik's parents need to be appointed by the court. Nothing in the record indicates that Erik's parents were ever appointed as general guardians of his property. Moreover, Wis. Stat. ch. 880 does not equate "parents" with "guardians." In fact, when addressing the selection of guardians, the legislature provided a preference for the minor's parents-thus indicating that parents are not automatically deemed "general guardians." Furthermore, the legislature reiterated the necessity that a guardian be court appointed. Specifically, Wis. Stat. § 880.09 provides:
Nomination; selection of guardians.
....
(2) Preference. If one or both of the parents of a minor ... are suitable and willing, the court shall appoint one or both of them as guardian unless the proposed ward objects....
Finally, it cannot be assumed that the attorney who represents the parents also represents the minor-unless this attorney has also been court appointed as the minor's guardian ad litem or guardian of the minor's property.
. In addition, we do not believe the circuit court erred in reopening the scheduling order for the guardian ad litem after the mistrial was declared. The circuit court aptly supported its reasoning on the record:
I think the best thing to do under these circumstances, difficult as it is for all parties and as financially expensive as it is-the child was denied representation, the child should be in this case-I'm not going to dismiss the newer case, but I'm going to consolidate it, because there should be only one file. I am going to send out a new scheduling order, and I'm going to do that.
I have to do it reluctantly, but it is the only way to make sure that that child gets fairly treated, otherwise, this child is without any rights in this particular case and is being treated unfairly by the courts ....
. Furthermore, Wis. Stat. § 803.01(3)(c)2 supports the circuit court's decision:
If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or mentally incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:
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