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.
Time Limit for Protective Placement Hearing
The bill specifies that a court must hold a hearing on any petition for protective placement within 60 days after it is filed. The bill provides that the court may extend the date for the hearing by up to 45 days if an extension of time is requested by the petitioner, individual sought to be placed or his or her guardian ad litem, or the county department.
Attendance at Hearing of Person Sought to be Protected
Under current s. 55.06 (5), a person sought to be protectively placed is presumed able to attend the hearing on protective placement unless, after a personal interview, the guardian ad litem certifies to the court that the person is unable to attend. Chapter 55 does not require the court to hold the hearing in the presence of the person sought to be placed if that person is unable to attend the hearing, as is required in ch. 880 for hearings on guardianship.
The bill deletes language stating that the person sought to be protectively placed is presumed to be able to attend the hearing. The bill provides that the person sought to be protected shall be present at the hearing unless, after a personal interview, the guardian ad litem certifies in writing to the court specific reasons why the person is unable to attend or certifies in writing that the person is unwilling to participate or is unable to participate in a meaningful way. The bill also provides that, if the person is unable to attend a hearing because of physical inaccessibility or lack of transportation, the court must hold the hearing in a place where the person may attend, if requested by the person sought to be placed, guardian ad litem, or adversary counsel. This provision is similar to provisions which currently exist in ch. 880, relating to appointment of a guardian for a person alleged to be incompetent. The bill specifies, however, that the court is not required to hold the hearing in the presence of the person sought to be placed if the guardian ad litem, after a personal interview with the person, certifies in writing to the court that the person is unwilling to participate or unable to participate in a meaningful way.
The bill also amends s. 880.08 (1) relating to the appointment of a guardian in the same way.
Procedural Rights in Ch. 55 Proceedings
Currently, s. 55.06 (6) requires the appointment of a guardian ad litem for a person sought to be protectively placed and states that s. 880.33 (2), which sets forth certain procedural rights and the right to counsel in a guardianship hearing, applies to all hearings under ch. 55 except hearings regarding certain transfers of placement. This bill deletes that cross-reference and instead inserts the language to which it refers to into appropriate sections of ch. 55. The bill makes minor changes to that language necessary to reflect that the rights apply to ch. 55 proceedings rather than guardianship hearings. The bill also replaces the term "county of legal settlement" with the term "county in which the hearing is held", as recommended by the committee.
The provisions in current s. 880.33 (2) that are inserted into ch. 55 by the bill are the following:
1. The right to counsel.
2. The right to a jury trial.
3. The right of the person sought to be placed, his or her attorney and guardian ad litem to present and cross-examine witnesses.
4. The right to a copy of any medical, psychological, social, vocational, or educational evaluation of the person sought to be placed.
5. Provisions requiring the county in which the hearing is held to pay guardian ad litem and attorney fees of the person sought to be placed if the person is indigent.
6. The right of the person sought to be protected to request that the hearing be closed.
The bill retains the requirements in current s. 55.06 (6), relating to the appointment of a guardian ad litem for a person sought to be placed.
Right to an Independent Evaluation in Ch. 55 Proceedings
Under current law, s. 880.33 (2) (b) provides that the individual who is the subject of a guardianship petition, or anyone on the individual's behalf, has the right, at the individual's own expense, or if indigent at the expense of the county where the petition is filed, to secure an independent medical or psychological examination relevant to the issue involved at the hearing on the petition, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.
This bill provides the same right to an independent evaluation to an individual who is the subject of a protective placement proceeding, if such an evaluation has not already been made.
Duties of Guardian ad Litem in Ch. 55 Proceedings
Under current law, protective placement hearings are held as provided under s. 55.06. Under s. 55.06 (5), notice of a petition for protective placement must be served on the individual who is the subject of the petition, as well as several other persons, including the guardian, if one has been appointed. Current law also requires a guardian to be provided a copy of the comprehensive evaluation of the individual who is the subject of the protective placement petition. However, current law does not specify that the guardian must be provided notice of the protective placement hearing. Also, current law does not specify the guardian's rights to participation at the hearing on protective placement.
Current law, under s. 880.331, specifies duties of a guardian ad litem in guardianship proceedings.
This bill specifies that the duties of a guardian ad litem in a guardianship proceeding in s. 880.331 also apply to a guardian ad litem in a protective placement proceeding. This bill also creates additional duties of a guardian ad litem in guardianship and protective placement proceedings. The new duties are: to interview the proposed guardian; to make a recommendation to the court regarding the fitness of the proposed guardian; to interview the guardian, if one has already been appointed, of a subject of a petition for protective placement or court-ordered protective services; to inform the court and the petitioner or the petitioner's counsel, if any, if the proposed ward requests representation by counsel; to attend all court proceedings related to the guardianship; and to notify any guardian of an individual who is the subject of a protective placement proceeding about the hearing on the petition, as well as the right to be present at the hearing, the right to present and cross-examine witnesses, and the right to receive a copy of the evaluations.
Role of Power of Attorney for Health Care in Ch. 55 Proceedings
Under current law, in an incompetency proceeding, if the proposed incompetent has executed a power of attorney for health care under ch. 155, the court must make a finding as to whether the power of attorney for health care instrument should remain in effect. If the court so finds, the court shall so order and shall limit the power of the guardian to make those health care decisions for the ward that are to be made by the health care agent under the terms of the power of attorney for health care instrument, unless the guardian is the health care agent under those terms.
Currently, when reference is made to a guardian in ch. 55, no reference is made to a power of attorney for health care, where a court, in an incompetency proceeding, has found that the power of attorney should remain in effect for certain health care decisions.
This bill clarifies the role of the power of attorney for health care in ch. 55 proceedings. It provides that, if a court has made a determination under s. 880.33 (8) (b) that a power of attorney for health care under ch. 155 should remain in effect, and the court limits the power of the guardian to make health care decisions, the provisions of ch. 55 that confer upon the guardian the rights to notice and participation, and the authority to act, in a proceeding under ch. 55 shall also apply to the health care agent.
Rights of "Interested Persons" in Ch. 55 Proceedings
Under current law, under s. 55.01 (4), an "interested person" is defined as "any adult relative or friend of a person to be protected under this subchapter; or any official or representative of a public or private agency, corporation or association concerned with the person's welfare".
An interested person is given the opportunity, in guardianship and protective placement proceedings, to participate in many ways, including: requesting a different location for the hearing if the proposed ward is unable to attend due to physical inaccessibility or lack of transportation; complaining to the court if they suspect fraudulent activity by the guardian; and requesting an independent medical or psychological examination of the proposed ward.
This bill codifies the Wisconsin Court of Appeals' decision in Coston v. Joseph P., 586 N.W.2d 52 (Ct. App. 1998), by providing that an interested person may participate in the hearing on the guardianship and protective placement petition at the court's discretion. In that case, 2 interested persons, who were relatives of the subject of the petition, asserted that they had a right to participate in the hearing. The court disagreed, saying that the rights of interested persons to participate in guardianship and protective placement hearings are specific and limited. However, the court also stated that a circuit court is not foreclosed from allowing for the participation of interested persons, if the court decides to exercise its discretion to allow interested persons to participate to the extent it deems appropriate.
Procedures for Protective Services Order
Current law provides that the court may order protective services for an individual for whom a determination of incompetency is made if the individual entitled to the protective services will otherwise incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others. However, no procedures are specified in statute for obtaining a court order for protective services.
This bill includes court-ordered protective services under the revised procedural provisions for protective placement.
Procedures for Emergency Protective Services
Under current law, s. 55.05 (4) provides that emergency protective services may be provided for not more than 72 hours when there is reason to believe that if the services are not provided, the person entitled to the services or others will incur a substantial risk of serious physical harm. No procedures are specified in the statute for obtaining a court order for emergency protective services.
This bill establishes procedures for obtaining emergency protective services. Under the bill, if the provider of the emergency protective services has reason to believe that protective services must continue to be provided beyond the 72-hour period, a petition for court-ordered protective services may be filed. If a petition is filed, a preliminary hearing must be held within 72 hours, excluding Saturdays, Sundays, and holidays, to establish probable cause to believe that the grounds for court-ordered protective services are present. If probable cause is found, the court may order protective services for up to 60 days, pending a hearing on the petition for court-ordered protective services.
Emergency Protective Placements
This bill makes several changes to the law governing emergency protective placements.
Current law provides that a sheriff, police officer, fire fighter, guardian, or authorized representative of a county board or an agency designated by a county board may make an emergency protective placement of an individual if, based on their personal observation, it appears probable that the individual meets the criteria for emergency placement. The bill provides that emergency placement may be made by the persons listed above based on a reliable report made to them as well as based on their personal observation.
Current law provides that an individual may be protectively placed on an emergency basis if it appears probable that the 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. The bill amends this language to provide that an individual described above may be protectively placed on an emergency basis if it appears probable that the individual 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, degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed. This new language is the same as current s. 55.06 (2) (c), which sets forth one of the standards which must be met for protective placement on a non-emergency basis.
Current law provides that a person may be protectively placed on an emergency basis in an appropriate medical or protective placement facility.
The bill requires each county department to designate at least one appropriate medical facility or protective placement facility as an intake facility for the purpose of emergency protective placements.
