2005 WISCONSIN ACT 264
An Act to repeal 55.01 (3), 55.04 (title) and (1) to (3), 55.05 (2) (c), 55.05 (2) (d), 55.05 (5) (a), 55.06 (2) (intro.), 55.06 (9) (b), 55.06 (9) (c), 55.06 (9) (d), 55.06 (9) (e), 55.06 (10) (c), 55.06 (15), 880.07 (1m), 880.33 (2) (d), 880.33 (2) (e), 880.33 (4m), 880.33 (4r) and 880.34 (6); to renumber 940.285 (1) (a); to renumber and amend 46.90 (1) (d), 51.01 (3g), 55.01 (4), 55.03, 55.04 (4), 55.05 (4) (title) and (a), 55.05 (4) (b), 55.05 (4) (c), 55.05 (5) (title), 55.05 (5) (b) 1., 55.05 (5) (b) 2., 55.05 (5) (c) (intro.), 55.05 (5) (c) 1., 55.05 (5) (c) 2., 55.05 (5) (c) 3., 55.05 (5) (d), 55.06 (1) (intro.), 55.06 (1) (a), 55.06 (1) (b), 55.06 (1) (c), 55.06 (1) (d), 55.06 (2) (a), 55.06 (2) (b), 55.06 (2) (c), 55.06 (2) (d), 55.06 (3) (a), 55.06 (3) (b), 55.06 (3) (c), 55.06 (4), 55.06 (5), 55.06 (5m), 55.06 (6), 55.06 (7), 55.06 (8) (intro.), 55.06 (8) (a), 55.06 (8) (b), 55.06 (8) (c), 55.06 (9) (a), 55.06 (10) (a) 1., 55.06 (10) (a) 2., 55.06 (10) (b), 55.06 (11) (a), 55.06 (11) (am), 55.06 (11) (ar), 55.06 (11) (b), 55.06 (11) (c), 55.06 (11) (d), 55.06 (12), 55.06 (14), 55.06 (16), 55.06 (17), 55.06 (18), 55.07, 880.01 (5), 880.01 (7m), 880.24 (3) (a), 880.24 (3) (b), 940.285 (1) (b) and 940.295 (1) (hm); to amend 20.435 (2) (gk), 46.011 (2), 46.10 (2), 46.21 (2m) (c), 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.27 (6r) (b) 2., 46.275 (4) (b) 1., 46.279 (2), 46.279 (3), 46.279 (4) (c), 46.279 (4) (d), 46.279 (4) (e), 46.279 (5), 46.283 (7) (b), 46.284 (7) (b), 46.286 (1) (intro.), 46.286 (3) (a) (intro.), 46.286 (3) (a) 3., 46.2895 (10), 46.90 (1) (c), 49.001 (5m), 49.001 (8), 49.45 (6m) (i) 2., 49.45 (25) (am) 2., 49.45 (30m) (b), 49.45 (30m) (c) 2., 50.03 (5m) (c), 50.06 (2) (c), 51.01 (2g) (b), 51.01 (3s), 51.01 (5) (a), 51.03 (3) (a) 6., 51.10 (8), 51.15 (1) (a) 4., 51.15 (5), 51.20 (1) (a) 2. c., 51.20 (1) (a) 2. d., 51.20 (1) (a) 2. e., 51.20 (1) (am), 51.20 (1m), 51.20 (7) (d) 1. (intro.), 51.20 (7) (d) 1. b., 51.35 (4m) (intro.), 51.39, 51.40 (2) (intro.), 51.40 (2) (a) 1., 51.40 (2) (a) 2., 51.42 (1) (b), 51.42 (3) (ar) 4. d., 51.42 (3) (e), 51.421 (1), 51.421 (2), 51.421 (3) (c), 51.437 (4) (c), 51.437 (4r) (b), 51.67 (intro.), 51.67 (2), 55.001, 55.01 (2), 55.01 (4g), 55.01 (4t), 55.043 (1) (a) (intro.), 55.043 (1) (a) 1. and 3., 55.043 (1) (b) 1., 55.043 (1) (b) 2. a. and b., 55.043 (4) (a), 55.043 (4) (b), 55.045, 55.05 (title), 55.05 (2) (intro.), 55.05 (2) (a), 55.05 (2) (b), 55.05 (3), 165.85 (4) (b) 1d. b., 165.86 (2) (b), 301.01 (2) (intro.), 560.9811 (1), 560.9811 (2), 609.65 (1) (intro.), 757.69 (1) (h), 767.24 (7) (b), 808.075 (4) (c) 1., 808.075 (4) (c) 2., 808.075 (4) (c) 3., 809.30 (1) (b) 5., 809.30 (3), 813.123 (4) (a) (intro.), 813.123 (4) (a) 2., 813.123 (5) (a) (intro.), 813.123 (5) (a) 3. b., 813.123 (6) (c), 813.123 (7), 813.123 (11), 880.01 (2), 880.01 (4), 880.08 (1), 880.33 (1), 880.33 (2) (a) 1., 880.33 (2) (a) 2., 880.33 (3), 880.33 (6), 880.33 (7), 880.331 (1), 880.331 (5) (intro.), 880.38 (1), 880.38 (2), 880.38 (3), 940.285 (1) (e) (intro.), 940.295 (1) (t) (intro.) and 971.14 (6) (b); to repeal and recreate 51.10 (4m) (a) (intro.) and 55.02; and to create 49.43 (10v), 50.02 (2) (ad), 50.06 (2) (d), 55.01 (1d), 55.01 (1v), 55.01 (4) (c), 55.01 (6), (6m), (6p) and (6r), 55.01 (6t), 55.01 (6v), 55.01 (6x), 55.01 (6y), 55.055 (1) (c), 55.055 (1) (d), 55.055 (2), 55.075, 55.08, 55.09, 55.10, 55.11, 55.12, 55.13 (2) and (3), 55.135 (title), 55.14, 55.15, 55.16, 55.17, 55.18, 55.19, 851.72 (11), 880.01 (8m), 880.07 (2m), 880.33 (2) (f), 880.331 (4) (am) and (ar), 880.331 (4) (dm), (dr) and (ds), 880.38 (4) and 977.05 (4) (i) 8. of the statutes; relating to: protective placements and protective services, involuntary administration of psychotropic medication, and requiring the exercise of rule-making authority.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Special Committee on Recodification of Chapter 55.
Voluntary Admission of an Incompetent Person to an Inpatient Treatment Facility
Under current law, an evaluation that a person is mentally ill, developmentally disabled, alcoholic, or drug dependent and has the potential to benefit from inpatient care, treatment, or therapy is a criterion for voluntary admission to an inpatient treatment facility. An adult who desires admission to an inpatient treatment facility and whose admission is made through the DHFS or through a county department of community programs or developmental disabilities services may be admitted after applying, if the treatment director of the facility (or, if appropriate, the director of a center for the developmentally disabled) and the county department approve. An adult who desires admission to a state inpatient treatment facility may be admitted with the approval of the treatment facility director and the director of the appropriate county department. If the admission is approved in either of these ways, an adult may also be admitted to an inpatient treatment facility if he or she applies in writing or if the facility physician advises the person of certain rights, responsibilities, benefits, and risks of admission. If an admitted person does not sign a voluntary admission application within 7 days after admission, a hearing is held to determine whether the patient must remain as a voluntary patient.
Under current law, an adult for whom a guardian of the person has been appointed after an adjudication of incompetence may be voluntarily admitted to an inpatient treatment facility only if the guardian and the ward consent.
This bill authorizes the voluntary admission to an inpatient treatment facility of an adult who has been adjudicated incompetent if his or her guardian consents to the admission and if the procedures requiring an explanation by a physician of the rights, responsibilities, risks, and benefits of admission and requiring a hearing after 7 days are followed.
Involuntary Transfer of a Protectively Placed Individual to an Acute Psychiatric Treatment Facility
Under current mental health laws, an individual who meets one of a number of standards may be detained on an emergency basis and transported for detention of up to 72 hours in a detention facility, an approved public treatment facility, a center for the developmentally disabled, a state treatment facility, or an approved private treatment facility.
If a petition is brought before a court, an individual who is found to meet one of several standards may be involuntarily committed for up to 6 months and may be subject to subsequent successive orders of commitment of up to one year each. For the involuntary commitment, a detained individual may automatically be appointed an attorney; receives notice of hearings and a copy of the petition and detention order; receives a written statement of his or her right to an attorney, and, if requested more than 48 hours prior to the final hearing, a jury trial; receives written notice of the standard under which he or she may be committed; and receives written notice of the right to a probable cause hearing within 72 hours after arrival at the detaining facility. An individual who is not detained receives written service of the documents and an oral explanation of his or her rights.
Involuntary commitment may not be made unless the court finds, after a hearing, that there is clear and convincing evidence that the individual is mentally ill, a proper subject for treatment, and dangerous. Procedures under the hearing must include the right to an open hearing, the right to request a closed hearing, the right to counsel, the right to present and cross-examine witnesses, and the right to remain silent.
By contrast, under the current protective placement laws, an individual who has been adjudicated incompetent and has been protectively placed may be involuntarily transferred for up to 10 days, by his or her guardian or by court order, to a facility that provides acute psychiatric treatment for the purpose of psychiatric diagnostic procedures under s. 55.06 (9) (d) or may be temporarily transferred for up to 15 days to such a facility for emergency acute psychiatric inpatient treatment under s. 55.06 (9) (e). If the individual's guardian is not notified in advance of this transfer, the facility must provide written notice to the guardian immediately upon transfer and to the court, a county department, or a designated agency within 48 hours. If the guardian, ward, ward's attorney, or another interested person files a petition objecting to this emergency transfer, the court must order a hearing within 96 hours after the filing. The court must notify the ward, guardian, and petitioner of the time and place of the hearing, and a guardian ad litem must be appointed to represent the ward; the petitioner, ward, and guardian have the right to attend and to present and cross-examine witnesses. For both the involuntary and the temporary transfers, any hearing held must consider, among other factors, the best interests of the individual.
Under State ex rel. Watts v. Combined Community Services, 122 Wis. 2d 65 (1985), the court found that no rational basis existed for the difference between procedural protections that are afforded to persons who are involuntarily committed for mental health treatment under the mental health laws and the lack of any procedural protections (other than those that are self-requested) for involuntary transfers for psychiatric diagnostic procedures or acute psychiatric inpatient treatment under the protective placement laws. The court held that the constitutional guarantee of equal protection requires that the procedural requirements for emergency detention and involuntary commitment under the mental health laws must be provided to a protectively placed individual for involuntary transfer of that individual to a mental health facility for treatment.
This bill amends ch. 55 to comply with the court's ruling. The bill eliminates provisions in ch. 55 concerning transfer or temporary transfer of an individual who is protectively placed to a facility providing acute psychiatric treatment and specifies that procedures currently applied to such a transfer are inapplicable. Instead, the bill authorizes applying the mental health laws concerning emergency detention and involuntary commitment to protectively placed persons in appropriate cases. The bill prohibits the involuntary transfer of protectively placed persons to a mental health treatment facility unless standards and procedures under the mental health laws concerning emergency detention or involuntary commitment are applied.
Definition and Terminology Changes
Current law, under s. 55.01 (3), defines "infirmities of aging" as "organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted is substantially impaired in his or her ability to adequately provide for his or her care or custody". This bill replaces the definition of "infirmities of aging" with a definition of "degenerative brain disorder". This definition is considered to be a more accurate reference to types of organic brain disorders, such as Alzheimer's disease and Parkinson's disease, which are not necessarily caused by the aging process.
Current law does not define "protective services" or "protective placement". This bill creates definitions of "protective services" and "protective placement".
Under current law, certain persons with chronic mental illness may be eligible for protective placement or services under ch. 55. The term "chronic mental illness" is defined in s. 51.01 (3g) as a mental illness which is severe in degree and persistent in duration, which causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, which may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support and which may be of lifelong duration. Under current law, "chronic mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include infirmities of aging or a primary diagnosis of mental retardation or of alcohol or drug dependence. The term is not defined in ch. 55, although it is used in that chapter.
This bill changes the term "chronic mental illness" in ch. 51 to "serious and persistent mental illness" to reflect updated terminology. It also creates a definition of the term in ch. 55 by cross-referencing the definition in s. 51.01 (3g).
Under current law, s. 55.001, the declaration of policy to ch. 55, refers to persons with "infirmities of aging, chronic mental illness, mental retardation, other developmental disabilities, or like incapacities incurred at any age" who are in need of protective services.
This bill revises some of the terminology in s. 55.001 by doing the following:
1. Deleting the term "infirmities of aging" and replacing it with the newly created term "degenerative brain disorders".
2. Deleting the outdated term "mental retardation". Persons who have cognitive disabilities are encompassed in the term "developmental disabilities".
3. Inserting references to protective placement, in addition to the current references to protective services.
4. Deleting the term "chronic mental illness" and replacing it with "serious and persistent mental illness".
DHFS and County Responsibilities in Ch. 55 System
Current law (s. 55.02) requires the DHFS to establish a statewide system of protective services, in accordance with rules promulgated by the department. This statutory section refers to the department cooperating with the various types of county departments to develop a coordinated system of services.
Current law (s. 55.04) also requires the DHFS to administer specifically enumerated protective services, as well as evaluate, monitor, and provide protective placements.
This bill repeals and recreates s. 55.02 and repeals most of s. 55.04. The newly created s. 55.02 revises and combines the 2 statutes, ss. 55.02 and 55.04, to more accurately portray the department's role in cooperating with county departments in operating the protective services and placement system and the department's role in monitoring and supervising the system. This new section also more accurately portrays the county departments' primary role in providing protective services and protective placement in Wisconsin. The bill also repeals the specific listing of types of protective services and creates a new definition of "protective services".
Admissions Without Court Involvement
Current law provides for certain admissions of persons who are under guardianship to certain facilities without court involvement. One type of admission without court involvement that is currently permitted is the admission of a person to a nursing home, if the person is admitted directly from a hospital inpatient unit for recuperative care for a period not to exceed 3 months, unless the hospital admission was for psychiatric care. Prior to providing consent to the admission, the guardian of the person to be admitted must review the ward's right to the least restrictive residential environment and consent only to admission to a nursing home that implements those rights. Following the 3-month period, a placement proceeding under s. 55.06 is required.
This bill does the following:
1. Amends current law to permit a guardian to consent to a ward's admission to a nursing home, or other facility for which protective placement is required, for a period not to exceed 60 days. This change permits a ward to be admitted for a short-term nursing home stay without having to be admitted from a hospital setting. However, the person must be in need of recuperative care or be unable to provide for his or her own care or safety so as to create a serious risk of substantial harm to himself or herself or others. The placement may be extended for an additional 60 days if a placement proceeding under ch. 55 has been commenced, or for an additional 30 days for the purpose of allowing the initiation of discharge planning for the person if no placement proceeding under ch. 55 has been commenced. Placement under this amended provision is not permitted for a person with a primary diagnosis of mental illness or developmental disability.
2. Creates a new provision that allows a guardian of a person under a guardianship that was imposed in another state to consent to admissions under current s. 55.05 (5) (b) (which is renumbered to s. 55.055 (1) in the bill) if the ward is currently a resident of Wisconsin, and if a petition for guardianship and protective placement is filed in Wisconsin within 60 days of the person's admission.
3. Creates a new provision that allows a Wisconsin resident guardian of a person who has been found incompetent in, and resides in, another state to consent to admissions under current s. 55.05 (5) (b) (which is renumbered to s. 55.055 (1) in the bill) if the guardian intends to move the ward to Wisconsin within 30 days of the consent to the admission. A petition for guardianship and protective placement must be filed in Wisconsin within 60 days of the person's admission to the Wisconsin facility.
Under current law, s. 50.06 of the statutes creates a procedure for a short-term admission of an incapacitated person to a nursing home from a hospital without having a guardianship or protective placement in place. Admissions are authorized based on the consent of a statutorily specified person, for a time period not to exceed 60 days. The admission may be extended once for up to 30 days for the purpose of allowing discharge planning for the person to take place.
This bill creates a new provision in s. 50.06 that addresses a situation where the incapacitated person admitted to the nursing home protests the admission. In that situation, the person in charge of the facility must immediately notify the designated protective placement agency for the county in which the person is living. Representatives of that agency must visit the person as soon as possible, but not later than 72 hours after notification, and do the following:
1. Determine whether the protest persists or has been voluntarily withdrawn and consult with the individual who consented to the admission regarding the reasons for the admission.
2. Attempt to have the person released within 72 hours if the protest is not withdrawn and necessary elements of s. 55.06 (2) or (11) (renumbered, respectively, to s. 55.08 and s. 55.135 in the bill) are not present and provide assistance in identifying appropriate alternative living arrangements.
3. Comply with s. 55.06 (11) (renumbered to s. 55.135), relating to emergency protective placement, if all elements are present and emergency placement in that facility or another facility is necessary, or file a petition for protective placement under s. 55.06 (1) (a) (renumbered to s. 55.075 (1)). The court, with the permission of the facility, may order the person to remain in the facility pending the outcome of the protective placement proceedings.
Protective Placement Petition Required When Guardianship Petition Filed for Resident of a Nursing Home
The bill codifies the decision of the Wisconsin Supreme Court in Agnes T. v. Milwaukee County, 189 Wis. 2d 520, 525 N.W.2d 268 (1995). In that case, the court stated that a guardian may not consent to the continued residence of a person in a nursing home licensed for 16 or more beds without a protective placement order and that upon appointing a guardian for an incompetent person in a nursing home licensed for 16 or more beds, the court must hold a protective placement hearing. The court specified that, when making a placement determination for such a person, a court may consider whether moving the person would create a serious risk of harm to that person.
This bill codifies the Agnes T. decision as follows:
1. Requiring, in newly created s. 880.07 (2m), that whenever a petition for guardianship on the ground of incompetency is filed with respect to a person residing in a facility licensed for 16 or more beds, a petition for protective placement of the person must also be filed.
2. Specifying that the person may continue to reside in the facility until the court issues a decision on the petition for protective placement of the person.
3. Authorizing a court, when protectively placing a person residing in a facility licensed for 16 or more beds, to consider whether moving the person would create a serious risk of harm to that person.
Fees and Costs of Petition Under Ch. 55
Chapter 55 does not currently specify who is responsible for the attorney fees and costs of a person who files a petition for protective services or placement under s. 55.06 (2). However, s. 880.24 (3) specifies that under certain circumstances, the court must award payment of reasonable attorney fees and costs to a person who petitions for appointment of a guardian and protective placement of the ward if a guardian is appointed.
The bill adds to ch. 55 similar provisions requiring the court to award payment of reasonable attorney fees and costs to a person who petitions for protective services or placement. These provisions apply when a petition for protective placement or services is brought independently of or at the same time as a petition for guardianship.
The bill creates a new provision which specifies that the court must award, from the estate of the person sought to be placed, the reasonable attorney fees and costs of a person who petitions for protective placement of the person unless the court finds it would be inequitable to do so. In determining whether it would be inequitable to award payment of costs and fees, the court must consider all of the following:
1. The petitioner's interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship or protective placement.
2. The ability of the ward's estate to pay the petitioner's reasonable attorney fees and costs.
3. Whether the petition was contested and, if so, the nature of the contest.
4. Whether the person sought to be protectively placed had executed a durable power of attorney under s. 243.07 or a power of attorney for health care under s. 155.05 or had provided advance consent to nursing home placement or engaged in other advance planning to avoid protective placement.
5. Any other factors that the court considers to be relevant.
With respect to guardianships under ch. 880, current law provides that if the court finds that a ward had executed a durable power of attorney or a power of attorney for health care or engaged in other advance planning to avoid guardianship, the court may not award payment of the petitioner's attorney fees and costs from the ward's estate. The bill provides, instead, that the court may consider these items as factors in determining whether to award the payment.