2005 Wisconsin Act 387

387,73 Section 73. 51.40 (1) (em) of the statutes is created to read:

51.40 (1) (em) "Facility" means a place, other than a hospital, that is licensed, registered, certified, or approved by the department or a county under ch. 50 or 51.

387,74 Section 74. 51.40 (1) (f) of the statutes is amended to read:

51.40 (1) (f) "Guardian" means a guardian of the person appointed by a court under ch. 54 or ch. 880, 2003 stats.

387,75 Section 75. 51.40 (1) (g) 1. of the statutes is amended to read:

51.40 (1) (g) 1. The status of an individual who has had a guardian appointed under ch. 880, unless the court made a specific finding under s. 880.33 (3) that the individual is competent to make an informed choice of a place to live.

387,76 Section 76. 51.40 (1) (h) of the statutes is repealed.

387,77 Section 77. 51.40 (1) (hm) of the statutes is created to read:

51.40 (1) (hm) "Other like incapacities" has the meaning given in s. 55.01 (5).

387,78 Section 78. 51.40 (1) (m) of the statutes is created to read:

51.40 (1) (m) "Voluntary" has the meaning given in s. 49.001 (8).

387,79 Section 79. 51.40 (2) (intro.) of the statutes is amended to read:

51.40 (2) Determination of county of residence. (intro.) For purposes of determining responsibility for funding the provision of services under chs. 46, 51 and 55, the The county of residence of individuals an individual aged 18 or older with developmental disability or chronic serious and persistent mental illness in state facilities or nursing homes, degenerative brain disorder, or other like incapacity who is residing in a facility is the county of responsibility for the individual. The county of residence shall be determined as follows:

387,80 Section 80. 51.40 (2) (a) 1. of the statutes is amended to read:

51.40 (2) (a) 1. `Commitment or protection protective placement or protective services.' If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. After notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection, the court may make a specific finding of a county of residence. If any affected county or party objects to the court's proposed finding, the county or party may request the department to make a determination under par. (g). Any transfer of venue may be suspended until the department's determination is final.

387,81 Section 81. 51.40 (2) (a) 2. of the statutes is amended to read:

51.40 (2) (a) 2. `Placement by a county.' Except for the provision of emergency services under s. 51.15, 51.42 (1) (b), 51.437 (4) (c), 51.45 (11) and (12) or 55.06 (11), if a county department or an agency of a county department arranges places or makes arrangements for placement of the individual into a state facility or nursing home, the individual is a resident of the county of that county department. Any agency of the county department is deemed to be acting on behalf of the county department in arranging placing or making arrangements for placement. Placement of an individual by a county department or an agency of a county department in a facility outside the jurisdiction of the county department or agency does not transfer the individual's legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for his or her immediate needs under s. 51.15, 51.20, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) or (12), or ch. 54 or 55, without becoming the individual's county of residence.

387,82 Section 82. 51.40 (2) (b) (intro.) of the statutes is amended to read:

51.40 (2) (b) Other admissions. (intro.) If par. (a) does not apply, one of the following shall apply the county of residence shall be determined as follows:

387,83 Section 83. 51.40 (2) (b) 1. of the statutes is amended to read:

51.40 (2) (b) 1. `Individuals in state facilities.' An individual who is in a state facility is a resident of the county in which he or she was a resident at the time the admission to the state facility was made. This subdivision may not be applied to change residence from a county, other than the county in which the facility is located, which that has accepted responsibility for or provided services to the individual prior to August 1, 1987 before the effective date of this subdivision .... [revisor inserts date].

387,84 Section 84. 51.40 (2) (b) 2. (intro.) of the statutes is amended to read:

51.40 (2) (b) 2. `Individuals in nursing homes.' (intro.) The following are presumptions regarding the county of residence of an individual in a nursing home that may be overcome by substantial evidence that clearly establishes other county residence:

ag. An individual in a nursing home who was admitted under s. 50.04 (2r) to the nursing home on or after August 1, 1987 the effective date of this subd. 2. ag. .... [revisor inserts date], is a resident of the county which that approved the admission under s. 50.04 (2r).

bg. An individual residing in a nursing home on August 1, 1987 the effective date of this subd. 2. bg. .... [revisor inserts date], is presumed to be a resident of the county in which the individual is physically present unless another county accepts the individual as a resident. The presumption of residence may be overcome by substantial evidence which clearly establishes residence in another county in one of the following ways:

387,85 Section 85. 51.40 (2) (b) 2. a. of the statutes is renumbered 51.40 (2) (b) 2. cg. and amended to read:

51.40 (2) (b) 2. cg. The If the individual had an established residence in another county prior to entering the nursing home; the individual or the individual's guardian, if any, indicates an intent that the individual will return to that county when the purpose of entering the nursing home has been accomplished or when needed care and services can be obtained in the other that county; and the individual, when capable of indicating intent, or a guardian for the individual, has made no clearly documented expression to a court or county department of an intent to establish residence elsewhere since leaving that county, the individual is a resident of that county.

387,86 Section 86. 51.40 (2) (b) 2. b. of the statutes is renumbered 51.40 (2) (b) 2. dg. and amended to read:

51.40 (2) (b) 2. dg. The If the individual is incapable of indicating intent as determined by the county department, has no guardian, ordinarily resides in another county, and is expected to return to that county within one year, the individual is a resident of that county.

387,87 Section 87. 51.40 (2) (b) 2. c. of the statutes is renumbered 51.40 (2) (b) 2. eg. and amended to read:

51.40 (2) (b) 2. eg. Another If another county has accepted responsibility for or provided services to the individual prior to August 1, 1987 the effective date of this subd. 2. eg. .... [revisor inserts date], the individual is a resident of that county.

387,88 Section 88. 51.40 (2) (b) 2. d. of the statutes is renumbered 51.40 (2) (b) 2. fg. and amended to read:

51.40 (2) (b) 2. fg. The If the individual is incapable of indicating intent; the individual was living in another county outside of a nursing home or state facility on December 1, 1982 the effective date of this subd. 2. fg. .... [revisor inserts date], or under circumstances which that established residence in that county after December 1, 1982 the effective date of this subd. 2. fg. .... [revisor inserts date]; and that county was the last county in which the individual had residence while living outside of a nursing home or state facility, the individual is a resident of that county.

387,89 Section 89. 51.40 (2) (b) 2. g. of the statutes is created to read:

51.40 (2) (b) 2. g. If subd. 2. ag. to fg. does not apply, an individual who is incapable of indicating intent and is residing in a facility is a resident of the county in which the individual resided before admittance to the facility.

387,90 Section 90. 51.40 (2) (f) of the statutes is repealed and recreated to read:

51.40 (2) (f) Guardian's authority to declare county of residence. A guardian may declare any of the following, under any of the following conditions:

1. The ward is a resident of the guardian's county of residence, if pars. (a) and (b) do not apply, if the guardian's ward is in a facility and is incapable of indicating intent, and if the guardian is a resident of the county in which the facility is located or states in writing that the ward is expected to return to the guardian's county of residence when the purpose of entering the facility has been accomplished or when needed care and services can be obtained in the guardian's county of residence.

2. The ward is a resident of the county in which the ward is physically present, if pars. (a) and (b) do not apply and if all of the following apply:

a. The ward's presence in the county is voluntary.

b. There is no current order under ch. 55 in effect with respect to the ward, and the ward is not under an involuntary commitment order to the department of corrections or to a county other than the county in which the ward is physically present.

c. The ward is living in a place of fixed habitation.

d. The guardian states in writing that it is the ward's intent to remain in the county for the foreseeable future.

3. The ward is a resident of the county specified by the guardian, regardless if a previous determination of county of residence has been made, notwithstanding pars. (a) and (b) for good cause shown, if, in the ward's best interest, the guardian files with the probate court having jurisdiction of the guardianship and protective placement a written statement declaring the ward's domiciliary intent, subject to court approval, and if notice and opportunity to be heard are provided to all affected counties and parties. Notice under this subdivision shall be sent to the corporation counsel of each affected county by certified mail.

387,91 Section 91. 51.40 (2) (g) 1. of the statutes is amended to read:

51.40 (2) (g) 1. An individual, an interested person on behalf of the individual, or any county may request that the department make a determination of the county of responsibility of the individual. Any motion for change of venue pending before the court of jurisdiction may be stayed until the determination under this paragraph is final. Within 10 days after receiving the request, the department shall provide written notice to the individual,; to the individual's guardian, guardian ad litem, and counsel, if any,; to the individual's immediate family, if they can be located; and to all potentially responsible counties that a determination of county of responsibility shall be made and that written information and comments may be submitted within 30 days after the date on which the notice is sent.

387,92 Section 92. 51.40 (2) (g) 6. of the statutes is created to read:

51.40 (2) (g) 6. The county that is determined to be the county of responsibility shall reimburse any other county for all care, treatment, and services provided by the other county to the individual under ch. 46, 51, or 55. Full reimbursement by the county that is determined to be the county of responsibility shall be made within 120 days after the date of the department's determination of the county of responsibility or within 120 days after the date of the outcome of any appeal of the department's determination that is brought under ch. 227, or by a date or under a schedule of 2 or more payments that is agreed to by both counties.

387,93 Section 93. 51.45 (2) (e) of the statutes is amended to read:

51.45 (2) (e) "Incompetent person" means a person who has been adjudged incompetent by the circuit court, as defined in s. 54.01 (4).

387,94 Section 94. 51.45 (10) (a) of the statutes is amended to read:

51.45 (10) (a) An adult alcoholic may apply for voluntary treatment directly to an approved public treatment facility. If the proposed patient is an individual adjudicated incompetent person in this state who has not been deprived by a court of the right to contract under subch. I of ch. 880, the person individual or a legal his or her guardian or other legal representative may make the application. If the proposed patient is an individual adjudicated incompetent person in this state who has been deprived by a court of the right to contract under subch. I of ch. 880, a legal, the individual's guardian or other legal representative may make the application.

387,95 Section 95. 51.45 (10) (c) of the statutes is amended to read:

51.45 (10) (c) If a patient receiving inpatient care leaves an approved public treatment facility, the patient shall be encouraged to consent to appropriate outpatient or intermediate treatment. If it appears to the superintendent in charge of the treatment facility that the patient is an alcoholic or intoxicated person who requires help, the county department shall arrange for assistance in obtaining supportive services and residential facilities. If the patient is an individual who is adjudicated incompetent person, the request for discharge from an inpatient facility shall be made by a legal guardian or other legal representative or by the individual who is adjudicated incompetent if he or she was the original applicant.

387,96 Section 96. 51.45 (13) (c) of the statutes is amended to read:

51.45 (13) (c) Effective and timely notice of the preliminary hearing, together with a copy of the petition and supporting affidavits under par. (a), shall be given to the person unless he or she has been taken into custody under par. (b), the spouse or legal guardian if the person is adjudicated incompetent, the person's counsel, and the petitioner. The notice shall include a written statement of the person's right to an attorney, the right to trial by jury, the right to be examined by a physician, and the standard under which he or she may be committed under this section. If the person is taken into custody under par. (b), upon arrival at the approved public treatment facility, the person shall be advised both orally and in writing of the right to counsel, the right to consult with counsel before a request is made to undergo voluntary treatment under sub. (10), the right not to converse with examining physicians, psychologists or other personnel, the fact that anything said to examining physicians, psychologists or other personnel may be used as evidence against him or her at subsequent hearings under this section, the right to refuse medication under s. 51.61 (6), the exact time and place of the preliminary hearing under par. (d), the right to trial by jury, the right to be examined by a physician and of the reasons for detention, and the standards under which he or she may be committed prior to all interviews with physicians, psychologists, or other personnel. Such notice of rights shall be provided to the person's immediate family if they can be located and may be deferred until the person's incapacitated condition, if any, has subsided to the point where the person is capable of understanding the notice. Under no circumstances may interviews with physicians, psychologists, or other personnel be conducted until such notice is given, except that the person may be questioned to determine immediate medical needs. The person may be detained at the facility to which he or she was admitted or, upon notice to the attorney and the court, transferred by the county department to another appropriate public or private treatment facility, until discharged under this subsection. A copy of the petition and all supporting affidavits shall be given to the person at the time notice of rights is given under this paragraph by the superintendent, who shall provide a reasonable opportunity for the patient to consult counsel.

387,97 Section 97. 51.45 (13) (e) of the statutes is amended to read:

51.45 (13) (e) Upon a finding of probable cause under par. (d), the court shall fix a date for a full hearing to be held within 14 days. An extension of not more than 14 days may be granted upon motion of the person sought to be committed upon a showing of cause. Effective and timely notice of the full hearing, the right to counsel, the right to jury trial, and the standards under which the person may be committed shall be given to the person, the immediate family other than a petitioner under par. (a) or sub. (12) (b) if they can be located, the spouse or legal guardian if the person is adjudicated incompetent, the superintendent in charge of the appropriate approved public treatment facility if the person has been temporarily committed under par. (b) or sub. (12), the person's counsel, unless waived, and to the petitioner under par. (a). Counsel, or the person if counsel is waived, shall have access to all reports and records, psychiatric and otherwise, which have been made prior to the full hearing on commitment, and shall be given the names of all persons who may testify in favor of commitment and a summary of their proposed testimony at least 96 hours before the full hearing, exclusive of Saturdays, Sundays and legal holidays.

387,98 Section 98. 51.61 (1) (o) of the statutes is amended to read:

51.61 (1) (o) Except as otherwise provided, have a right not to be filmed or taped, unless the patient signs an informed and voluntary consent that specifically authorizes a named individual or group to film or tape the patient for a particular purpose or project during a specified time period. The patient may specify in such the consent periods during which, or situations in which, the patient may not be filmed or taped. If a patient is legally adjudicated incompetent, such the consent shall be granted on behalf of the patient by the patient's guardian. A patient in Goodland Hall at the Mendota Mental Health Institute, or a patient detained or committed under ch. 980 and placed in a facility specified under s. 980.065, may be filmed or taped for security purposes without the patient's consent, except that such a patient may not be filmed in patient bedrooms or bathrooms for any purpose without the patient's consent.

387,99 Section 99. 51.61 (1) (w) 3. of the statutes is amended to read:

51.61 (1) (w) 3. A patient, a patient's relative who may be liable for the cost of the patient's care and treatment, or a patient's guardian may request information about charges for care and treatment services at the treatment facility or community mental health program. If a treatment facility or community mental health program receives such a request, the treatment facility or community mental health program shall promptly provide to the individual making the request written information about the treatment facility's or community mental health program's charges for care and treatment services. Unless the request is made by the patient, the guardian of a patient adjudged adjudicated incompetent under ch. 880 in this state, the parent or guardian of a minor who has access to the minor's treatment records under s. 51.30 (5) (b) 1., or a person designated by the patient's informed written consent under s. 51.30 (4) (a) as a person to whom information may be disclosed, information released under this subdivision is limited to general information about the treatment facility's or community mental health program's charges for care and treatment services and may not include information which may not be disclosed under s. 51.30.

387,100 Section 100. Chapter 54 of the statutes is created to read:

Chapter 54
guardiansHIPS and CONSERVATORSHIPs

subchapter I
definitions

54.01 Definitions. In subchs I to VI:

(1) "Activities of daily living" means activities relating to the performance of self care, work, and leisure activities, including dressing, eating, grooming, mobility, and object manipulation.

(3) "Conservator" means a person who is appointed by a court at an individual's request under s. 54.76 (2) to manage the estate of the individual.

(4) "Court" means the circuit court or judge assigned to exercise probate jurisdiction or the assignee of the judge under s. 757.68 (4m) or 851.73 (1) (g) who is assigned relevant authority.

(5) "Decedent" means the deceased individual whose estate is subject to administration.

(6) "Degenerative brain disorder" means the loss or dysfunction of an individual's brain cells to the extent that he or she is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.

(7) "Depository account" has the meaning given in s. 815.18 (2) (e).

(9) "Durable power of attorney" has the meaning given in s. 243.07 (1) (a).

(9g) "Foreign court" means a court of a foreign state having competent jurisdiction of a foreign ward.

(9i) "Foreign guardian" means a guardian appointed by a foreign court for a foreign ward.

(9k) "Foreign guardianship" means a guardianship issued by a foreign court.

(9m) "Foreign state" means a state other than this state.

(9p) "Foreign ward" means an individual who has been found by a foreign court to be incompetent or a spendthrift and who is subject to a guardianship order or related order in a foreign state.

(11) "Guardian of the estate" means a guardian appointed to comply with the duties specified in s. 54.19 and to exercise any of the powers specified in s. 54.20.

(12) "Guardian of the person" means a guardian appointed to comply with the duties specified in s. 54.25 (1) and to exercise any of the powers specified in s. 54.25 (2).

(13) "Heir" means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.37 (10) and (11) when the decedent was a member of the Wisconsin Veterans Home at King or at the facilities operated by the department of veterans affairs under s. 45.385 at the time of the decedent's death.

(14) "Impairment" means a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.

(15) "Incapacity" means the inability of an individual effectively to receive and evaluate information or to make or communicate a decision with respect to the exercise of a right or power.

(16) "Individual found incompetent" means an individual who has been adjudicated by a court as meeting the requirements of s. 54.10 (3).

(17) "Interested person" means any of the following:

(a) For purposes of a petition for guardianship, any of the following:

1. The proposed ward, if he or she has attained 14 years of age.

2. The spouse or adult child of the proposed ward, or the parent of a proposed ward who is a minor.

3. For a proposed ward who has no spouse, child, or parent, an heir, as defined in s. 851.09, of the proposed ward that may be reasonably ascertained with due diligence.