Except in the case of a minor who is alleged to be developmentally disabled, has either been determined to be incompetent by a circuit court or has had submitted on the minor's behalf a petition for a guardianship;
As a result of developmental disabilities, infirmities of aging, chronic mental illness or other like incapacities, is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to oneself or others. Serious harm may be occasioned by overt acts or acts of omission; and
Has a disability which is permanent or likely to be permanent.
The petition shall state with particularity the factual basis for the allegations specified in sub. (2)
The petition under sub. (2)
shall be based on personal knowledge of the individual alleged to need protective placement.
The petition shall be filed in the county of residence of the person to be protected.
A petition for guardianship if required under sub. (2) (b)
must be heard prior to placement under this section. If incompetency has been determined under s. 880.33
more than one year preceding the filing of an application for protective placement, the court shall review the finding of incompetency.
Notice of a petition for placement shall be served upon the person sought to be placed, by personal service, at least 10 days prior to the time set for a hearing. Upon service of the notice, the person sought to be protected shall be informed of the complete contents of the notice. The person serving the notice shall return a certificate to the circuit judge verifying that the petition has been delivered and notice given. The notice shall include the names of all petitioners. Notice shall also be served personally or by mail upon the person's guardian ad litem, legal counsel, guardian, if any, presumptive adult heirs, and upon other persons who have physical custody of the person to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private body or group from whom the person to be protected is known to be receiving aid, and to such other persons or entities as the court may require. Notice shall also be served personally or by mail upon the department at least 10 days prior to the time set for hearing if the person sought to be protected may be placed in a center for the developmentally disabled. Notice shall also be served personally or by mail, at least 10 days before the time set for hearing, upon the county department that is participating in the program under s. 46.278
of the county of residence of the person sought to be protected, if the person has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for a person sought to be protected to whom s. 46.279 (4m)
applies, this notice shall instead be served on the department. The incompetent or proposed incompetent is presumed able to attend the hearing unless, after a personal interview, the guardian ad litem certifies to the court that the person is unable to attend.
A petition for protective placement of a person who has been admitted to a nursing home or a community-based residential facility under s. 50.06
shall be heard within 60 days after it is filed. If an individual under s. 50.06 (3)
alleges that an individual is making a health care decision under s. 50.06 (5) (a)
that is not in the best interests of the incapacitated individual or if the incapacitated individual verbally objects to or otherwise actively protests the admission, the petition shall be heard as soon as possible within the 60-day period.
(6) Section 880.33 (2)
applies to all hearings under this chapter except for transfers of placement under sub. (9) (b)
. A person to be protected shall have a guardian ad litem who is an attorney appointed in accordance with s. 757.48 (1)
present at all hearings under this chapter if the person does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. 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 subject individual, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including any person making an evaluation or review under sub. (8) (c)
Except for emergency placement or temporary placement under subs. (11)
, before placement may be ordered under this chapter the court or jury must find by clear and convincing evidence that the individual to be placed is in need of placement as provided in sub. (2)
Before ordering the protective placement of any individual, the court shall direct a comprehensive evaluation of the person in need of placement, if such an evaluation has not already been made. The court may utilize available multidisciplinary resources in the community in determining the need for placement. The board designated under s. 55.02
or an agency designated by it shall cooperate with the court in securing available resources. Where applicable by reason of the particular disability, the appropriate board designated under s. 55.02
or an agency designated by it having responsibility for the place of legal residence of the individual as provided in s. 49.001 (6)
shall make a recommendation for placement. If the court is considering placement of the individual in a center for the developmentally disabled, the court shall request a statement or testimony from the department regarding whether the placement is appropriate for the person's needs and whether it is consistent with the purpose of the center under s. 51.06 (1)
. If the individual has a developmental disability and the court is considering placement of the individual in an intermediate facility or a nursing facility, the court shall request a statement or testimony from the county department of the individual's county of residence that is participating in the program under s. 46.278
as to whether the individual's needs could be met in a noninstitutional setting, except that, if s. 46.279 (4m)
applies to the individual, the court shall request the statement or testimony from the department, rather than the county department. A copy of the comprehensive evaluation shall be provided to the guardian, the guardian ad litem, and to the individual or attorney at least 96 hours in advance of the hearing to determine placement. The court or the cooperating agency obtaining the evaluation shall request appropriate information which shall include at least the following:
The address of the place where the person is residing and the person or agency who is providing services at present, if any.
A resume of professional treatment and services provided to the person by the department or agency, if any, in connection with the problem creating the need for placement.
A medical, psychological, social, vocational and educational evaluation and review, where necessary, and any recommendations for or against maintenance of partial legal rights as provided in s. 880.33
. Such evaluation and review shall include recommendations for placement consistent with the least restrictive environment required.
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 is subject to s. 46.279
and 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. Except as provided in s. 49.45 (30m)
, 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)
. Subject to s. 46.279
, 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. If the appropriate board or designated agency proposes to place an individual who has a developmental disability in an intermediate facility or a nursing facility under an order under this paragraph, the county department, or, if s. 46.279 (4m)
applies to the individual, the department or the department's contractor shall develop a plan under s. 46.279 (4)
and furnish the plan to the board or agency and to the individual's guardian. The board or agency shall place the individual in a noninstitutional community setting in accord with the plan unless the court finds that placement in the intermediate facility or nursing facility is the most integrated setting, as defined in s. 46.279 (1) (bm)
, that is appropriate to the needs of the individual taking into account information presented by all affected parties. 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, or if the person is transferred to an intermediate facility or to a nursing facility, 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 or, if the person is transferred to an intermediate facility or to a nursing facility, to determine if the intermediate facility or nursing facility is the most integrated setting, as defined in s. 46.279 (1) (bm)
, that is appropriate to the needs of the ward taking into account information presented by all affected parties. 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.
Subject to s. 46.279
, 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 or if the person has a developmental disability and is transferred to an intermediate facility or a nursing facility, 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.
If the person has a developmental disability and is placed in an intermediate facility or a nursing facility, the agency that is responsible for the protective placement shall notify in writing the county department of the county of residence of the person that is participating in the program under s. 46.278
or, if s. 46.279 (4m)
applies to the person, the department, at least 120 days before the review. The county department so notified or, if s. 46.279 (4m)
applies, the department's contractor shall develop a plan under s. 46.279 (4)
and furnish the plan to the court that ordered the placement and to the person's guardian. The court shall order that the person be transferred to the noninstitutional community setting in accordance with the plan unless the court finds that placement in the intermediate facility or nursing facility is the most integrated setting, as defined in s. 46.279 (1) (bm)
, that is appropriate to the needs of the person taking into account information presented by all affected parties.
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 is guilty of a Class H felony.
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. If an individual who has a developmental disability is ordered, under this paragraph, to be temporarily placed in an intermediate facility or in a nursing facility, and if at the hearing for permanent placement the court orders that the individual be protectively placed, the court may, before permanent placement, extend the temporary placement order for not more than 90 days if necessary for the county department that is participating in the program under s. 46.278
or, if s. 46.279 (4m)
applies, the department's contractor to develop the plan required under s. 46.279 (4)
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 employee 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 employee'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. 809.30
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
; 2001 a. 109
; 2003 a. 33
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 lifestyle. Guardianship & Protective Placement of Shaw, 87 Wis. 2d 503
, 275 N.W.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 Wis. 2d 65
, 362 N.W.2d 104
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 Wis. 2d 190
, 407 N.W.2d 281
(Ct. App. 1987).
When a 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 Wis. 2d 64
, 409 N.W.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 that the county appropriates as matching funds. Protective Placement of D.E.R. 155 Wis. 2d 240
, 455 N.W.2d 239
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 Wis. 2d 685
, 465 N.W.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; immediate refiling of the petition and emergency detention following dismissal without prejudice was impermissible. State ex. rel Sandra D. v. Getto, 175 Wis. 2d 490
, 498 N.W.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 Wis. 2d 520
, 525 N.W.2d 268
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 Wis. 2d 109
, 584 N.W.2d 211
(Ct. App. 1998).
The statutory provisions for an interested person's formal participation in guardianship and protective placement hearings are specific and limited. No statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections. A court could consider such participation helpful and, in its discretion, could allow an interested person to participate to the extent it considers appropriate. Coston v. Joseph P. 222 Wis. 2d 1
, 586 N.W.2d 52
(Ct. APP. 1998).
A circuit court must hold some form of hearing on the record, either a full due process hearing or a summary hearing, to continue a protective placement. The circuit court must also make findings based on the factors enumerated in sub. (2) in support of the need for continuation. County of Dunn v. Goldie H. 2001 WI 102, 245 Wis. 2d 538
, 629 N.W.2d 189
A circuit court loses competence if the hearing under s. 55.06 (11) (b) is not held within 72 hours after the person is first taken into custody. The filing of a new petition does not start the clock anew. Kindcare, Inc. v. Judith G. 2002 WI App 36, 250 Wis. 2d 817
, 640 N.W.2d 839
In protective placements under sub. (9) (a), counties must make an affirmative showing of a good faith, reasonable effort to find an appropriate placement and to secure funding to pay for an appropriate placement. Counties bear the burden of showing whether funds are available and whether appropriate placements may be developed within the limits of required funds. Dunn County v. Judy K. 2002 WI 87, 254 Wis. 2d 383
, 647 N.W.2d 799
Section 907.03 does not allow the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. While in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions, procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B. 2003 WI App 223, 267 Wis. 2d 310
, 671 N.W.2d 377
A proposed ward's rightful refusal to participate in a court-ordered evaluation will not obstruct a guardianship and protective placement proceeding. Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon. Walworth County v. Therese B. 2003 WI App 223, 267 Wis. 2d 310
, 671 N.W.2d 377
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 petitioning private parties. Under sub. (9) (a), the court should order protective placement in an existing facility. 68 Atty. Gen. 97.
"Residence" under s. 55.06 (3) (c) is defined in s. 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
A guardian has general authority to consent to medication for a ward, but may consent to psychotropic medication only in accordance with ss. 880.07 (1m) and 880.33 (4m) and (4r). The guardian's authority to consent to medication or medical treatment of any kind is not affected by an order for protective placement or services. OAG 5-99