2005 Wisconsin Act 264

55.10 (4) (b) Guardian ad litem; costs. Section 880.33 (2) applies to all hearings under this chapter except for transfers of placement under sub. (9) (b), (c) and (e). A person to be protected shall have a The court shall in all cases require the appointment of an attorney as 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 responsibilities and duties of a guardian ad litem on behalf of a proposed ward or individual who is alleged incompetent specified in s. 880.331 (4) apply to a guardian ad litem appointed in a proceeding for protective services or protective placement on behalf of an individual sought to be protected. If a guardian has been appointed for an individual who is the subject of a petition for court-ordered protective placement or protective services, the guardian ad litem shall interview the guardian. The guardian ad litem shall be present at all hearings under this chapter if the individual sought to be protected 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 individual sought to be protected is an adult who is indigent, the county of legal settlement shall be liable for any fees due the guardian ad litem fees. If the person individual sought to be protected is a child, the person's minor, the minor's parents or the county of legal settlement in which the hearing is held shall be liable for any fees due the 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).

Note: Clarifies that the responsibilities and duties of a guardian ad litem on behalf of an individual who is the subject of a protective placement or services proceeding are the same as those in a proceeding under ch. 880, relating to guardianship.

264,130 Section 130. 55.06 (7) of the statutes is renumbered 55.10 (4) (d) and amended to read:

55.10 (4) (d) Standard of proof. Except for emergency placement or temporary placement under subs. (11) and (12), before Before protective placement or protective services may be ordered under this chapter s. 55.12, the court or jury must find by clear and convincing evidence that the individual to be placed protected is in need of protective placement as provided in sub. (2) because he or she meets all of the standards under s. 55.08 (1) or is in need of protective services because he or she meets all of the standards under s. 55.08 (2).

Note: Clarifies the standard of proof at protective placement or services hearing; provides that the person must meet the standards for protective placement or protective services before an order may be entered.

264,131 Section 131 . 55.06 (8) (intro.) of the statutes is renumbered 55.11 (1) (intro.) and amended to read:

55.11 (1) (intro.) Before ordering the protective placement of or protective services for any individual, the court shall direct require a comprehensive evaluation of the person in need of placement individual sought to be protected, if such an evaluation has not already been made. The court may utilize available multidisciplinary resources in the community in determining the need for protective placement or protective services. The board designated under s. 55.02 or an agency designated by it county department or an agency with which it contracts under s. 55.02 (2) 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:

264,132 Section 132. 55.06 (8) (a) of the statutes is renumbered 55.11 (1) (a) and amended to read:

55.11 (1) (a) The address of the place where the person individual is residing and the person or agency who is providing services at present, if any.

264,133 Section 133. 55.06 (8) (b) of the statutes is renumbered 55.11 (1) (b) and amended to read:

55.11 (1) (b) A resume of any professional treatment and services provided to the person individual by the department or agency, if any, in connection with the problem creating the need for protective placement or protective services.

264,134 Section 134 . 55.06 (8) (c) of the statutes is renumbered 55.11 (1) (c) and amended to read:

55.11 (1) (c) A medical, psychological, social, vocational, and educational evaluation and review, where if necessary, and any recommendations for or against maintenance of partial legal rights as provided in s. 880.33. Such The evaluation and review shall include recommendations for the individual's placement that are consistent with the least restrictive environment required requirements of s. 55.12 (3), (4), and (5).

Note: Section 131 to 134 renumber and reorganize provisions regarding a comprehensive evaluation of an individual who is the subject of a protective placement or services petition.

264,135 Section 135. 55.06 (9) (a) of the statutes is renumbered 55.12 (1) and amended to read:

55.12 (1) The court may order protective services under s. 55.05 (2) (d) as an alternative to placement. When ordering protective placement under the standards specified in s. 55.08 (1) or protective services under the standards specified in s. 55.08 (2), 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 county department or agency with which it contracts under s. 55.02 (2) to provide protective placement or protective services to the individual. Placement by the appropriate board or designated agency is

(3) Protective placement or protective services provided by a county department or an agency with which it contracts under s. 55.02 (2) are subject to s. 46.279 and shall be made provided in the least restrictive environment and in the least restrictive manner consistent with the needs of the person individual to be placed protected and with the placement resources of the appropriate board specified under s. 55.02 county department.

(4) Factors to be considered that a county department shall consider in making providing protective placement or protective services shall include the needs of the person individual to be protected for health, social, or rehabilitative services; the level of supervision needed; the reasonableness of the placement or services 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 protective placement or protective services given the number or projected number of individuals who will need protective placement or protective services and given the limited funds available.

(5) 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 provide protective placement or protective services to an individual. Placement Protective placement under this section does not replace commitment of a person an individual in need of acute psychiatric treatment under s. 51.20 or 51.45 (13).

(2) Subject to s. 46.279, protective 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 or other home placements, or to other appropriate facilities, but may not be made to units for the acutely mentally ill. An individual who is subject to an order for protective placement or protective services may be detained on an emergency basis under s. 51.15 or involuntarily committed under s. 51.20 or may be voluntarily admitted to a treatment facility for inpatient care under s. 51.10 (8). No individual who is subject to an order for protective placement or services may be involuntarily transferred to, detained in, or committed to a treatment facility for care except under s. 51.15 or 51.20. Protective placement in a locked unit shall require a specific finding of the court as to the need for the action.

(6) If the appropriate board or designated county department or agency with which it contracts under s. 55.02 (2) proposes to place provide protective placement to an individual who has a developmental disability in an intermediate facility or a nursing facility under an order under this paragraph section, the county department or agency, 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 county department or agency and to the individual's guardian. The board county department or agency with which it contracts under s. 55.02 (2) shall place provide protective placement to the individual in a noninstitutional community setting in accord with the plan unless the court finds that protective 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.

Note: Renumbers and reorganizes the provisions relating to an order for protective placement or services; clarifies that an individual who is subject to an order of protective placement or services may be detained on an emergency basis under s. 51.15 or involuntarily committed under s. 51.20, or voluntarily admitted to a treatment facility for inpatient care under s. 51.10 (8).

264,136 Section 136 . 55.06 (9) (b) of the statutes is repealed.

264,137 Section 137 . 55.06 (9) (c) of the statutes is repealed.

Note: Sections 136 and 137 repeal provisions that have been incorporated into other statutory sections.

264,138 Section 138 . 55.06 (9) (d) of the statutes is repealed.

264,139 Section 139 . 55.06 (9) (e) of the statutes is repealed.

Note: Sections 138 and 139 repeal provisions that have been found unconstitutional.

264,140 Section 140. 55.06 (10) (a) 1. of the statutes is renumbered 55.18 (1) (a) (intro.) and amended to read:

55.18 (1) (a) (intro.) The county department or any agency which is responsible for a protective placement of the individual's county of residence shall, except as provided in sub. (1m), annually 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 individual who has been provided protective placement. The review shall include in writing an a visit to the individual and a written evaluation of the physical, mental and social condition of each such person, and the individual and the service needs of the individual. The review 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 individual. The county department shall inform the guardian of the individual of the review at the time the review is made and shall, before completing a report of the review, invite the individual and the guardian to submit comments or information concerning the individual's need for protective placement or protective services. Not later than the first day of the 11th month after the initial order is made for protective placement for an individual and, except as provided in par. (b), annually thereafter, the county department shall do all of the following:

Note: Renumbers and amends provisions relating to annual review of protective placement. Provides that the individual's guardian must be notified of the review and invite the individual and the guardian to submit comments or information concerning the individual's need for protective placement or protective services.

Requires the county department of the county of residence of a protectively placed individual to annually review the status of the individual, as required by State ex. rel. Watts and County of Dunn v. Goldie H., as described in the prefatory note. Specifies the required elements of the review, including a visit to the individual and a written evaluation of the individual's condition.

264,141 Section 141. 55.06 (10) (a) 2. of the statutes is renumbered 55.18 (1) (ar) and amended to read:

55.18 (1) (ar) If the person individual has a developmental disability and is protectively 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 individual that is participating in the program under s. 46.278 or, if s. 46.279 (4m) applies to the person individual, 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 protective placement and to the person's individual's guardian. The court shall order that the person individual be transferred to the noninstitutional community setting in accordance with the plan unless the court finds that protective 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 individual taking into account information presented by all affected parties.

264,142 Section 142. 55.06 (10) (b) of the statutes is renumbered 55.17 (1) and amended to read:

55.17 (1) Petition. The An individual, the individual's guardian or guardian ad litem, the department, an agency, a guardian or a ward a county department or agency with it contracts under s. 55.02 (2), or any other interested person may file a petition at any time petition the court for modification or for termination of a an order for protective placement. A or protective services. The petition shall be served on the individual; the individual's guardian; the individual's attorney and guardian ad litem, if any; and the county department. The 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 individual no longer meets the standards under s. 55.08 (1) for court-ordered protective placement or under s. 55.08 (2) for court-ordered protective services.

Note: Revises the provisions relating to a petition for protective services or placement. These provisions expand who may petition and who must be served with the petition; and remove provisions regarding hearing on the petition, which are placed in a separate provision.

264,143 Section 143. 55.06 (10) (c) of the statutes is repealed.

Note: Repeals a provision in current law that provides that termination of a guardianship or attainment of the age of majority by a minor terminates a protective placement order.

264,144 Section 144. 55.06 (11) (a) of the statutes is renumbered 55.135 (1) and amended to read:

55.135 (1) If, from personal observation of, or a reliable report made by a person who identifies himself or herself to, 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 county department or an agency with which it contracts under s. 55.02 (2), it appears probable that an individual will suffer irreparable injury or death or will present is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disabilities, infirmities of aging, chronic degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed, the person making the observation or to whom the report is made may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making emergency protective placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations or reports made to the person 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) s. 55.075. At the time of emergency protective 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 minor or is indigent. The director or designee shall also provide the individual with a copy of the statement by the person making emergency protective placement.

Note: Changes a provision in current law regarding emergency protective placement, by providing that, in addition to the personal observation of a law enforcement officer, firefighter, guardian or authorized representative of a county department, detention may be made based on a reliable report made to one of these persons.

264,145 Section 145. 55.06 (11) (am) of the statutes is renumbered 55.135 (2) and amended to read:

55.135 (2) Whoever signs a statement under par. (a) sub. (1) knowing the information contained therein in the statement to be false is guilty of a Class H felony.

264,146 Section 146. 55.06 (11) (ar) of the statutes is renumbered 55.135 (3) and amended to read:

55.135 (3) A person who acts in accordance with this subsection section is not liable for any actions performed in good faith.

264,147 Section 147. 55.06 (11) (b) of the statutes is renumbered 55.135 (4) and amended to read:

55.135 (4) Upon detention When an individual is detained under this section, a petition shall be filed under sub. (2) s. 55.075 by the person making such the emergency protective 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) s. 55.08 (1). The sheriff or other person making emergency protective placement under par. (a) sub. (1) 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 protective 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 protective placement as a petition for commitment under s. 51.20 or 51.45 (13).

264,148 Section 148. 55.06 (11) (c) of the statutes is renumbered 55.135 (5) and amended to read:

55.135 (5) Upon a finding of probable cause under par. (b) sub. (4), the court may order temporary protective placement up to 30 days pending the hearing for a permanent protective placement, or the court may order such protective services as may be required. If the court orders under this subsection an individual who has a developmental disability is ordered, under this paragraph, to be temporarily placed receive temporary protective placement in an intermediate facility or in a nursing facility, and if at the hearing for permanent protective placement the court orders that the individual be protectively placed provide protective placement, the court may, before commencement of permanent protective placement, extend the temporary protective 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).

264,149 Section 149. 55.06 (11) (d) of the statutes is renumbered 55.135 (6) and amended to read:

55.135 (6) A law enforcement agency, fire department, or county department designated under s. 55.02 or an agency designated by that county department or agency with which it contracts under s. 55.02 (2) shall designate at least one employee authorized to take an individual into custody under this subsection section 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.

264,150 Section 150. 55.06 (12) of the statutes is renumbered 55.055 (5) and amended to read:

55.055 (5) When If a ward lives with the his or her guardian, the guardian may make temporary protective placement of the ward. Placement may be made, to provide the guardian with a vacation or to temporarily release the guardian temporarily for a family emergency. Such The temporary protective 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 any information as that the court may reasonably deem necessary. When reviewing the application, the court shall provide the least restrictive temporary protective placement which that is consistent with the needs of the ward.

264,151 Section 151. 55.06 (14) of the statutes is renumbered 55.175 and amended to read:

55.175 Discharge from protective placement. Prior to discharge from a protective placement, the appropriate board which is responsible for placement county department shall review the need for provision of continuing protective services or for continuation of full or limited guardianship or provision for such a guardianship if the individual has no guardian. Recommendation shall be made The county department shall make a recommendation 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 the review under s. 51.35 (7).

264,152 Section 152. 55.06 (15) of the statutes is repealed.

Note: Repeals a provision regarding the responsibilities of a guardian to the ward, since these provisions are present in ch. 880, stats.

264,153 Section 153. 55.06 (16) of the statutes is renumbered 55.21 and amended to read:

55.21 Centers for the developmentally disabled. Placements Protective placements to centers for the developmentally disabled and discharges from such institutions shall be in compliance with s. 51.35 (4).

264,154 Section 154. 55.06 (17) of the statutes is renumbered 55.22 and amended to read:

55.22 Records. (1) (intro.) Any No records of the court pertaining to protective services or protective placement proceedings, including evaluations, reviews and recommendations prepared under sub. (8) (c) s. 55.11 (1) (c), are not open to public inspection but are any record is available to all of the following:

(a) The individual who is the subject of the proceedings and the subject's individual's guardian at all times.

(b) The subject's individual's attorney or guardian ad litem, without the subject's individual's consent and without modification of the records, in order to prepare for any court proceedings relating to the subject's individual's protective services or protective placement or relating to the subject's individual's guardianship.

(c) Other persons only with the informed written consent of the subject individual as provided in s. 51.30 (2) or under an order of the court that maintains the records.

(2) If the subject individual 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).

(3) All treatment and service records pertaining to a person an individual 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.

Note: Renumbers a provision in current law relating to records in protective placement and services proceedings and makes minor wording changes.

264,155 Section 155. 55.06 (18) of the statutes is renumbered 55.20 and amended to read:

55.20 Appeals. An appeal may be taken to the court of appeals from a final judgment or final order under this section chapter 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.

264,156 Section 156. 55.07 of the statutes is renumbered 55.23, and 55.23 (1) and (2), as renumbered, are amended to read:

55.23 (1) The rights and limitations upon rights, procedures for enforcement of rights, and penalties prescribed in s. 51.61 apply to persons individuals who receive services under this chapter, whether on a voluntary or involuntary basis.

(2) 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 minor's records under this chapter.

264,157 Section 157. 55.075 of the statutes is created to read:

55.075 Protective services or protective placement; petition. Except as provided in s. 971.14 (6) (b):

(1) Who may petition.

(2) Contents of petition.

(3) Petition for guardianship; review of incompetency.

(4) Fees and costs of petition. (a) The court shall award, from the assets of the individual sought to be protectively placed or protectively served, payment of the petitioner's reasonable attorney fees and costs, unless the court finds, after considering all of the following, that it would be inequitable to do so:

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 or services.

2. The ability of the estate of the individual sought to be protectively placed or protectively served 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 individual sought to be protectively placed or protectively served 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 admission or engaged in other advance planning to avoid protective placement or protective services.

5. Any other factors that the court considers to be relevant.

(5) Where a petition may be filed; venue; county of responsibility.

(b) The court in which a petition is first filed under par. (a) shall determine venue. The court shall direct that proper notice be given to any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (a) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition.

Note: Renumbers and reorganizes provisions relating to a petition for protective placement or services. Adds to ch. 55 provisions similar to those in current s. 880.24 (3), stats., requiring the court to award payment of reasonable attorney fees and costs to a person who petitions for protective services or placement. Also, adds new provisions relating to venue in a protective placement or services proceeding.

264,158 Section 158. 55.08 of the statutes is created to read:

55.08 Protective services or protective placement: standards. (1) Protective placement. A court may under s. 55.12 order protective placement for an individual who meets all of the following standards: