2005 Wisconsin Act 264

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:

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

(a) The individual has been determined to be incompetent by a circuit court or is a minor who is alleged to be developmentally disabled and on whose behalf a petition for a guardianship has been submitted.

(b) As a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.

Note: Renumbers and reorganizes provisions relating to standards that a court must consider when determining whether an individual meets the standards for protective placement; adds standards that a court must consider when determining whether an individual meets the standards for court-ordered protective services. Although courts order protective services under current law, there are no specific statutory provisions for courts to follow when ordering protective services.

264,159 Section 159 . 55.09 of the statutes is created to read:

55.09 Notice of petition and hearing for protective services or placement.

(2) Other notice required. In addition to the notice required under sub. (1), notice shall be served, personally or by mail, at least 10 days before the time set for a hearing, upon all of the following:

(a) The guardian ad litem, legal counsel, and guardian, if any, of the individual sought to be protected.

(b) The agent under an activated power of attorney for health care, if any, of the individual sought to be protected.

(c) The presumptive adult heirs, if any, of the individual sought to be protected.

(d) Other persons who have physical custody of the individual sought to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained.

(e) The county department.

(f) Any governmental or private body or group from whom the individual sought to be protected is known to be receiving aid.

(g) Any other persons or entities that the court may require.

(h) The department, if the individual sought to be protected may be placed in a center for the developmentally disabled.

(i) The county department that is participating in the program under s. 46.278 of the county of residence of the individual sought to be protected, if the individual has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for an individual sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department.

(3) Notice of petition for involuntary administration of psychotropic medication. Notice of a petition under s. 55.14 shall be served personally or by mail upon the corporation counsel and county department.

Note: Creates a new section relating to notice of petition and hearing for protective services or placement, which incorporates and reorganizes provisions in current law regarding who must be served with notice of a hearing for protective services or placement.

264,160 Section 160 . 55.10 of the statutes is created to read:

55.10 Hearing on petition for protective services or protective placement.

(2) Attendance. The petitioner shall ensure that the individual sought to be protected attends the hearing on the petition unless, after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend. In determining whether to waive attendance by the individual, the guardian ad litem shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual's expressed desires. If the individual is unable to attend a hearing only because of residency in a nursing home or other facility, physical inaccessibility, or lack of transportation, the court shall, if requested by the individual, the individual's guardian ad litem, the individual's counsel, or other interested person, hold the hearing in a place where the individual is able to attend.

(3) Hearing to be open. The hearing shall be open, unless the individual sought to be protected, or his or her attorney acting with the consent of the individual sought to be protected, requests that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

(4) Rights. The following provisions apply to all hearings under this chapter except transfers of placement under s. 55.15 and summary hearings under ss. 55.18 (3) (d) and 55.19 (3) (d):

(a) Counsel; costs. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall appoint legal counsel. Counsel shall be provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual sought to be protected is an adult who is indigent, and if counsel was not appointed under s. 977.08, the county in which the hearing is held is liable for any fees due the individual's legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 880.33, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.

(c) Trial by jury; right to cross examine witnesses. The individual sought to be protected has the right to a trial by a jury if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The number of jurors shall be determined under s. 756.06 (2) (b). The individual sought to be protected, and the individual's attorney and guardian ad litem have the right to present and cross-examine witnesses, including any person making an evaluation or review under s. 55.11.

(e) Independent evaluation. The individual sought to be protected has the right to secure an independent evaluation as provided in s. 55.11 (2).

Note: Creates a new section on hearing on the petition for protective placement or services, which incorporates and reorganizes provisions in current law. Also, modifies provision regarding attendance of the individual to be protected at the hearing. Specifies the rights that apply to all hearings under ch. 55. These rights are present under current law, but are contained in ch. 880 and only cross-referenced currently in ch. 55. This provisions specifies these rights within ch. 55 for easier reference.

264,161 Section 161. 55.11 of the statutes is created to read:

55.11 Comprehensive evaluation; recommendations; statements.

(2) If requested by the individual sought to be protected, or anyone on the individual's behalf, the individual sought to be protected has the right at his or her own expense, or, if indigent, at the expense of the county where the petition is filed, to secure an independent comprehensive evaluation, if an independent comprehensive evaluation has not already been made. The individual, or anyone on the individual's behalf, may present a report of this independent comprehensive evaluation or the evaluator's personal testimony as evidence at the hearing.

(3) A copy of the comprehensive evaluation and any independent comprehensive evaluation shall be provided to the individual's guardian, agent under any activated health care power of attorney, and guardian ad litem, and to the individual or the individual's attorney at least 96 hours in advance of the hearing to determine protective placement or protective services.

(4) Where applicable by reason of the particular disability, the county department or an agency with which it contracts under s. 55.02 (2) that has responsibility where the individual has legal residence shall make a recommendation for protective placement or protective services.

(5) If the court is considering protective 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 protective placement is appropriate for the individual's needs and whether it is consistent with the purpose of the center under s. 51.06 (1).

(6) If the individual has a developmental disability and the court is considering protective 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.

Note: Creates a new section relating to a comprehensive evaluation in a protective placement or services proceeding, which incorporates and reorganizes provisions in current law. Also, creates a right to request an independent evaluation by a person who is the subject of a protective placement proceeding that is parallel to the right to request an independent evaluation in s. 880.33 (2) (b) when a person is the subject of a guardianship proceeding.

This right to an independent evaluation applies when such an evaluation has not already been made. For example, if a person who is the subject of both a guardianship and protective placement proceeding requested an independent evaluation under s. 880.33 (2) (b), the person would not also be able to request an independent evaluation under s. 55.11.

264,162 Section 162. 55.12 of the statutes is created to read:

55.12 Order for protective services or protective placement.

(7) If an individual to be protectively placed is a resident of a facility licensed for 16 or more beds, the court may consider whether moving the individual would create a serious risk of harm to that individual.

(8) The court may order protective services as an alternative to protective placement.

(9) The court may order psychotropic medication as a protective service only as provided in s. 55.14.

Note: Moves provisions in current s. 55.06 (9) (a), relating to orders for protective services or protective placements, to a newly created statutory section, s. 55.12. Also, creates additional provisions that clarify court orders relating to moving an individual who is a resident of a facility licensed for 16 or more beds; court orders for protective services as an alternative to placement; and court orders for psychotropic medication as a protective service.

264,163 Section 163. 55.13 (2) and (3) of the statutes are created to read:

55.13 (2) If the county department or agency with which the county department contracts under s. 55.02 (2) that is providing emergency protective services to an individual under sub. (1) has reason to believe that the individual meets the criteria for protective services under s. 55.08 (2), the county department or agency may file a petition under s. 55.075. If a petition is filed, a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays, and legal holidays, to establish probable cause that the criteria under s. 55.08 (2) are present. The county department or agency shall provide the individual with written notice and orally inform the individual of the time and place of the preliminary hearing. If the individual is not under guardianship, a petition for guardianship shall accompany the petition under s. 55.08 (2), except in the case of a minor who is alleged to be developmentally disabled.

(3) Upon finding probable cause under sub. (2), the court may order emergency protective services to continue to be provided for up to 60 days pending the hearing on protective services under s. 55.10.

Note: Creates new provisions to provide direction to a county department that is providing emergency protective services to permit the department to file a petition for protective services for an individual who is receiving emergency protective services.

264,164 Section 164. 55.135 (title) of the statutes is created to read: