The court may order protective services under s. 55.05 (2) (d)
as an alternative to placement. When ordering placement, the court, on the basis of the evaluation and other relevant evidence shall order the appropriate board specified under s. 55.02
or an agency designated by it to protectively place the individual. Placement by the appropriate board or designated agency shall be made in the least restrictive environment consistent with the needs of the person to be placed and with the placement resources of the appropriate board specified under s. 55.02
. Factors to be considered in making protective placement shall include the needs of the person to be protected for health, social or rehabilitative services; the level of supervision needed; the reasonableness of the placement given the cost and the actual benefits in the level of functioning to be realized by the individual; the limits of available state and federal funds and of county funds required to be appropriated to match state funds; and the reasonableness of the placement given the number or projected number of individuals who will need protective placement and given the limited funds available. The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual. Placement under this section does not replace commitment of a person in need of acute psychiatric treatment under s. 51.20
or 51.45 (13)
. Placement may be made to such facilities as nursing homes, public medical institutions, centers for the developmentally disabled under the requirements of s. 51.06 (3)
, foster care services and other home placements, or to other appropriate facilities but may not be made to units for the acutely mentally ill. The prohibition of placements in units for the acutely mentally ill does not prevent placement by a court for short-term diagnostic procedures under par. (d)
. Placement in a locked unit shall require a specific finding of the court as to the need for such action. A placement facility may transfer a patient from a locked unit to a less restrictive environment without court approval.
Transfer may be made between placement units or from a placement unit to a medical facility other than those specified in pars. (c)
by a guardian or placement facility without approval by a court. When transfer is made by a placement facility, 24 hours' prior written notice of the transfer shall be provided to the guardian, when feasible. If it is not feasible to notify the guardian in advance, written notice shall be provided immediately upon transfer, and notice shall also be provided to the court and to the board designated under s. 55.02
or an agency designated by it within a reasonable time, not to exceed 48 hours from the time of the transfer. Upon petition to a court by a guardian, ward, or attorney, or other interested person specifying objections to a transfer, the court shall order a hearing, within 96 hours after filing of the petition, to determine whether there is probable cause to believe that the transfer is consistent with the requirements specified in par. (a)
and is necessary for the best interests of the ward. The court shall notify the ward, guardian and petitioner of the time and place of the hearing, and a guardian ad litem shall be appointed to represent the ward. If the person is an adult who is indigent, the county of legal settlement shall be liable for guardian ad litem fees. If the person is a child, the person's parents or the county of legal settlement shall be liable for guardian ad litem fees as provided in s. 48.235 (8)
. The petitioner, ward and guardian shall have the right to attend, and to present and cross-examine witnesses.
Transfer to a more restrictive placement, including a locked unit, may be made with notice to the guardian, the court and appropriate board designated under s. 55.02
or an agency designated by it in the manner prescribed in par. (b)
. Upon petition by a guardian, ward or attorney, or other interested person specifying objections to the transfer, the court shall order a hearing as provided in par. (b)
Transfer of placement may be made by a guardian to a facility providing acute psychiatric treatment for the purpose of psychiatric diagnostic procedures for a period not to exceed 10 days. A court may order such placement following petition by the placement facility or other interested person, and a hearing in the manner provided in par. (b)
. Such period may not be extended for the purpose of providing psychiatric treatment except in the manner provided in par. (e)
Temporary transfer of placement may be made for emergency acute psychiatric inpatient treatment with prior notice to the guardian when feasible. If it is not feasible to notify the guardian in advance, written notice shall be provided immediately upon transfer, and the court or appropriate board under s. 55.02
or an agency designated by it shall be notified within 48 hours. Upon petition by a guardian, ward or attorney, or other interested person specifying objections to a transfer, the court shall order a hearing as provided in par. (b)
. Such treatment period may not exceed 15 days, including any transfer under par. (d)
. Any application for continued psychiatric inpatient treatment requires proceedings under s. 51.20
or 51.45 (13)
The department or any agency which is responsible for a protective placement shall review the status of each person placed at least once every 12 months from the date of admission. The court in its order of placement may, however, require that such review be conducted more frequently. The review shall include in writing an evaluation of the physical, mental and social condition of each such person, and shall be made a part of the permanent record of such person. The review shall include recommendations for discharge or placement in services which place less restrictions on personal freedom, where appropriate. The results of the review shall be furnished to the department in such form as the department may require and shall be furnished to the court that ordered the placement and to the person's guardian.
The department, an agency, a guardian or a ward, or any other interested person may at any time petition the court for modification or termination of a protective placement. A petition to terminate a protective placement shall allege that the conditions which warranted placement as specified in sub. (2)
are no longer present. A petition shall be heard if a hearing has not been held within the previous 6 months but a hearing may be held at any time in the discretion of the court. The petition shall be heard within 21 days of its receipt by the court.
Except in the case of a minor who is developmentally disabled and who has a parent or person in the place of a parent, termination of guardianship automatically revokes any placement made or services provided under this chapter unless the placement or services are continued on a voluntary basis. Notice to this effect shall be given to the ward by the provider of services at the time of termination. If placement is made or services are provided under this chapter to a minor who is developmentally disabled, the attainment of the age of majority by such individual automatically revokes any such placement made or services provided unless the placement or services are continued on a voluntary basis, or there is a finding of incompetency and appointment of a guardian pursuant to ch. 880
If from personal observation of a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a board designated under s. 55.02
or an agency designated by it it appears probable that an individual will suffer irreparable injury or death or will present a substantial risk of serious physical harm to others as a result of developmental disabilities, infirmities of aging, chronic mental illness or other like incapacities if not immediately placed, the person making the observation may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations and the basis for emergency placement. The statement shall be filed with the director of the facility and shall also be filed with any petition under sub. (2)
. At the time of placement the individual shall be informed by the director of the facility or the director's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 967.06
and ch. 977
, if the individual is a child or is indigent. The director or designee shall also provide the individual with a copy of the statement by the person making emergency placement.
Whoever signs a statement under par. (a)
knowing the information contained therein to be false may be fined not more than $5,000 or imprisoned not more than 5 years, or both.
Effective date note
Par. (am) is amended eff. 12-31-99 by 1997 Wis. Act 283
Effective date text
(am) Whoever signs a statement under par. (a) knowing the information contained therein to be false may be fined not more than $5,000 or imprisoned for not more than 7 years and 6 months or both.
A person who acts in accordance with this subsection is not liable for any actions performed in good faith.
Upon detention, a petition shall be filed under sub. (2)
by the person making such emergency placement and a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause to believe the grounds for protective placement under sub. (2)
. The sheriff or other person making placement under par. (a)
shall provide the individual with written notice and orally inform him or her of the time and place of the preliminary hearing. If the detainee is not under guardianship, a petition for guardianship shall accompany the placement petition, except in the case of a minor who is alleged to be developmentally disabled. In the event that protective placement is not appropriate, the court may elect to treat a petition for placement as a petition for commitment under s. 51.20
or 51.45 (13)
Upon a finding of probable cause under par. (b)
, the court may order temporary placement up to 30 days pending the hearing for a permanent placement, or the court may order such protective services as may be required.
A law enforcement agency, fire department, county department designated under s. 55.02
or an agency designated by that county department shall designate at least one employe authorized to take an individual into custody under this subsection who shall attend the in-service training on emergency detention and emergency protective placement offered by a county department of community programs under s. 51.42 (3) (ar) 4. d.
, if the county department of community programs serving the designated employe's jurisdiction offers an in-service training program.
When a ward lives with the guardian, the guardian may make temporary placement of the ward. Placement may be made to provide the guardian with a vacation or to temporarily release the guardian for a family emergency. Such placement may be made for not more than 30 days but the court may upon application grant an additional period not to exceed 60 days in all. The application shall include such information as the court may reasonably deem necessary. When reviewing the application, the court shall provide the least restrictive placement which is consistent with the needs of the ward.
Prior to discharge from a protective placement the appropriate board which is responsible for placement shall review the need for provision of continuing protective services or for continuation of full or limited guardianship or provision for such guardianship if the individual has no guardian. Recommendation shall be made to the court if the recommendation includes a course of action for which court approval would be required. Prior to discharge from any state institute or center for the developmentally disabled, the department shall make such review under s. 51.35
A guardian of a ward placed under this section shall have the duty to take reasonable steps to assure that the ward is well treated, properly cared for, and is provided with the opportunity to exercise legal rights. Notice of discharge under s. 51.35 (4)
shall be given to the guardian.
Placements to centers for the developmentally disabled and discharges from such institutions shall be in compliance with s. 51.35 (4)
Any records of the court pertaining to protective services or placement proceedings, including evaluations, reviews and recommendations prepared under sub. (8) (c)
, are not open to public inspection but are available to:
The subject of the proceedings and the subject's guardian at all times.
The subject's attorney or guardian ad litem, without the subject's consent and without modification of the records, in order to prepare for any court proceedings relating to the subject's protective services or placement or relating to the subject's guardianship.
Other persons only with the informed written consent of the subject as provided in s. 51.30 (2)
or under an order of the court that maintains the records.
If the subject is an adult who has been adjudged incompetent under ch. 880
or is a minor, consent for release of information from and access to the court records may be given only as provided in s. 51.30 (5)
All treatment and service records pertaining to a person who is protected under this chapter or for whom application has been made for protection under this chapter are confidential and privileged to the subject. Section 51.30
governs access to treatment and service records.
An appeal may be taken to the court of appeals from a final judgment or final order under this section within the time period specified in s. 808.04 (3)
and in accordance with s. 809.40
by the subject of the petition or the individual's guardian, by any petitioner or by the representative of the public.
History: 1973 c. 284
; 1975 c. 41
; 1975 c. 94
; 1975 c. 189
s. 99 (2)
; 1975 c. 393
; 1975 c. 430
; 1977 c. 26
; 1977 c. 449
; 1979 c. 32
s. 92 (1)
; 1979 c. 110
s. 60 (1)
; 1979 c. 221
; 1981 c. 314
; 1981 c. 379
; 1983 a. 27
; 1983 a. 189
s. 329 (19)
; 1983 a. 219
; 1985 a. 29
, 3202 (23)
; 1987 a. 366
; 1989 a. 31
; 1991 a. 269
; 1993 a. 187
; 1995 a. 27
; 1997 a. 237
A "common sense" finding of incompetency was insufficient for placement under this section. If competent when sober, an alcoholic has the right to choose to continue an alcoholic life-style. Guardianship & Protective Placement of Shaw, 87 W (2d) 503, 275 NW (2d) 143 (Ct. App. 1979).
There must be an annual review of each protective placement by a judicial officer. The requirements of ss. 51.15 and 51.20 must be afforded to protectively placed individuals facing involuntary commitment under s. 55.06 (9) (d) and (e). State ex rel. Watts v. Combined Community Services, 122 W (2d) 65, 362 NW (2d) 104 (1985).
A court's finding of limited incompetence under ch. 880 fulfills the incompetency requirement for protective placement under this section. Matter of Guardianship of K. H. K., 139 W (2d) 190, 407 NW (2d) 281 (Ct. App. 1987).
Where placement extended past the 30-day limit under sub. (11) (c) before a final hearing was held, the court lost authority to extend the placement. In Matter of Guardianship of N. N., 140 W (2d) 64, 409 NW (2d) 388 (Ct. App. 1987).
A county's duty under sub. (9) (a) to provide the least restrictive environment is not limited according to funds available through state and federal funds and those county appropriates as matching funds. Protective Placement of D.E.R., 155 W (2d) 240, 455 NW (2d) 239 (1990).
A court may order an agency to do planning and implementation work necessary to fulfill the obligation to order placement conforming to sub. (9) (a) and s. 51.61 (1) (e). In Matter of J.G.S., 159 W (2d) 685, 465 NW (2d) 227 (Ct. App. 1990).
Sub. (11) (c) required dismissal of the proceedings for failure to hold a permanent placement hearing within 30 days of the probable cause hearing; the immediate refiling of the petition and emergency detention following dismissal without prejudice was impermissible. State ex. rel Sandra D. v. Getto, 175 W (2d) 490, 498 NW (2d) 893 (Ct. App. 1993).
A guardian of a person who, became incompetent after voluntarily entering a nursing home with 16 or more beds, may not consent to the person's continued residence in the home. Upon the appointment of a guardian, the court must hold a protective placement hearing. Guardianship of Agnes T. 189 W (2d) 520, 525 NW (2d) 268 (1995).
A prima facie case of a violation of this section requires that the complainant was a member of a protected class, was discharged, was qualified for the position and was replaced by someone not in the protected class or or that others not in the protected class were treated more favorably. Knight v. LIRC, 220 W (2d) 137, 582 NW (2d) 448 (Ct. App. 1998).
An emergency protective placement under sub. (11) must be based on personal observation by one of the individuals listed in sub. (11) (a). Costs could not be assessed against the subject of an emergency placement proceeding that was outside the statutory guidelines. Ethelyn I.C. v. Waukesha County, 221 W (2d) 109, 584 NW (2d) 211 (Ct. App. 1998).
Sub. (17) requires the closing of all records filed with respect to ch. 55 proceedings, including the index, docket and files maintained by the register in probate. 67 Atty. Gen. 130.
Under sub. (1) (c), the duty of the corporation counsel is to assist the court and not to act as counsel for private parties petitioning. Under sub. (9) (a), the court should order protective placement in an existing facility. 68 Atty. Gen. 97.
"Residence" under 55.06 (3) (c) is defined in 49.01 (8g). 76 Atty. Gen. 103
New legal protection for persons with mental handicaps. Greenley and Zander, WBB April, 1986.
Guardianships and Protective Placements. Viney. Wis. Law. Aug. 1991.
Guardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
Patients' rights. 55.07(1)(1)
The rights and limitations upon rights, procedures for enforcement of rights and penalties prescribed in s. 51.61
apply to persons who receive services under this chapter, whether on a voluntary or involuntary basis.
A parent who has been denied periods of physical placement under s. 767.24 (4) (b)
or 767.325 (4)
may not have the rights of a parent or guardian with respect to access to a child's records under this chapter.
History: 1977 c. 428
; 1987 a. 355