Amendment SSA1-SB391

SB391-SSA1,77,13 f. The right to consent to organ, tissue, or bone marrow donation.

SB391-SSA1,77,16 2. Any finding under subd. 1. that an individual lacks evaluative capacity to exercise a right must be based on clear and convincing evidence. In the absence of such a finding, the right is retained by the individual.

SB391-SSA1,77,22 3. If an individual is declared not competent to exercise a right under subd. 1. or 4., a guardian may not exercise the right or provide consent for exercise of the right on behalf of the individual. If the court finds with respect to a right listed under subd. 1. a., d., e., or f. that the individual is competent to exercise the right under some but not all circumstances, the court may order that the individual retains the right to exercise the right only with consent of the guardian of the person.

SB391-SSA1,78,3 4. Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process. If the petition for a declaration of incompetence to vote is not part of a petition for guardianship, the same procedures shall apply as would apply for a petition for guardianship.

SB391-SSA1,78,9 The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, or 6.93 with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) (a) and (c) and any subsequent determination of the court shall be likewise communicated by the clerk of court.

SB391-SSA1,78,21 (d) Guardian authority to exercise certain powers. 1. A court may authorize a guardian of the person to exercise all or part of any of the powers specified in subd. 2. only if it finds, by clear and convincing evidence, that the individual lacks evaluative capacity to exercise the power. The court shall authorize the guardian of the person to exercise only those powers that are necessary to provide for the individual's personal needs, safety, and rights and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention. The court may limit the authority of the guardian of the person with respect to any power to allow the individual to retain power to make decisions about which the individual is able effectively to receive and evaluate information and communicate decisions. When a court appoints a guardian for a minor, the guardian shall be granted care, custody, and control of the person of the minor.

SB391-SSA1,78,22 2. All of the following are powers subject to subd. 1.:

SB391-SSA1,79,14 a. Except as provided under subd. 2. b., c., and d., and except for consent to psychiatric treatment and medication under ch. 51, and subject to any limitation under s. 54.46 (3) (b), the power to give informed consent, if in the ward's best interests, to voluntary or involuntary medical examination and treatment and to the voluntary receipt by the ward of medication, including any appropriate psychotropic medication that is in the ward's best interest, if the guardian has first made a good-faith attempt to discuss with the ward the ward's voluntary receipt of the psychotropic medication and the ward does not protest. For purposes of this subd. 2. a., "protest" means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. "Protest" does not mean a discernible negative response to a proposed method of administration of the psychotropic medication. A guardian may consent to the involuntary administration of psychotropic medication only under a court order under s. 55.14. In determining whether medication or medical treatment, other than psychotropic medication, is in the ward's best interest, the guardian shall consider the invasiveness of the medication or treatment and the likely benefits and side effects of the medication or treatment.

SB391-SSA1,79,19 b. Unless it can be shown by clear and convincing evidence that the ward would never have consented to research participation, the power to authorize the ward's participation in an accredited or certified research project if the research might help the ward; or if the research might not help the ward but might help others, and the research involves no more than minimal risk of harm to the ward.

SB391-SSA1,80,4 c. The power to authorize the ward's participation in research that might not help the ward but might help others even if the research involves greater than minimal risk of harm to the ward if the guardian can establish by clear and convincing evidence that the ward would have elected to participate in such research; and the proposed research was reviewed and approved by the research and human rights committee of the institution conducting the research. The committee shall have determined that the research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the federal regulations for research involving human subjects for federally supported projects.

SB391-SSA1,80,12 d. Unless it can be shown by clear and convincing evidence that the ward would never have consented to any experimental treatment, the power to consent to experimental treatment if the court finds that the ward's mental or physical status presents a life-threatening condition; the proposed experimental treatment may be a life saving remedy; all other reasonable traditional alternatives have been exhausted; 2 examining physicians have recommended the treatment; and, in the court's judgment, the proposed experimental treatment is in the ward's best interests.

SB391-SSA1,80,14 e. The power to give informed consent to receipt by the ward of social and supported living services.

SB391-SSA1,80,17 f. The power to give informed consent to release of confidential records other than court, treatment, and patient health care records and to redisclosure as appropriate.

SB391-SSA1,80,18 g. The power to make decisions related to mobility and travel.

SB391-SSA1,80,20 i. The power to choose providers of medical, social, and supported living services.

SB391-SSA1,80,22 j. The power to make decisions regarding educational and vocational placement and support services or employment.

SB391-SSA1,80,24 k. The power to make decisions regarding initiating a petition for the termination of marriage.

SB391-SSA1,80,25 L. The power to receive all notices on behalf of the ward.

SB391-SSA1,81,4 m. The power to act in all proceedings as an advocate of the ward, except the power to enter into a contract that binds the ward or the ward's property or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the estate.

SB391-SSA1,81,6 n. The power to apply for protective placement under s. 55.06 or for commitment under s. 51.20 or 51.45 (13) for the ward.

SB391-SSA1,81,8 o. The power to have custody of the ward, if an adult, and the power to have care, custody, and control of the ward, if a minor.

SB391-SSA1,81,9 p. Any other power the court may specifically identify.

SB391-SSA1,81,13 3. In exercising powers and duties delegated to the guardian of the person under this paragraph, the guardian of the person shall, consistent with meeting the individual's essential requirements for health and safety and protecting the individual from abuse, exploitation, and neglect, do all of the following:

SB391-SSA1,81,16 a. Place the least possible restriction on the individual's personal liberty and exercise of constitutional and statutory rights, and promote the greatest possible integration of the individual into his or her community.

SB391-SSA1,81,24 b. Make diligent efforts to identify and honor the individual's preferences with respect to choice of place of living, personal liberty and mobility, choice of associates, communication with others, personal privacy, and choices related to sexual expression and procreation. In making a decision to act contrary to the individual's expressed wishes, the guardian shall take into account the individual's understanding of the nature and consequences of the decision, the level of risk involved, the value of the opportunity for the individual to develop decision-making skills, and the need of the individual for wider experience.

SB391-SSA1,82,2 c. Consider whether the ward's estate is sufficient to pay for the needed services.

SB391-SSA1,82,4 subchapter IV procedures

SB391-SSA1,82,5 54.30 Jurisdiction and venue.

SB391-SSA1,82,7 (3) (b) 1. An interested person shall file a petition for change of venue in the county in which venue for the guardianship currently lies.

SB391-SSA1,82,11 2. The person filing the petition under subd. 1. shall give notice to the corporation counsel of the county in which venue for the guardianship currently lies and to the register in probate and corporation counsel for the county to which change of venue is sought.

SB391-SSA1,82,20 3. If no objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies may enter an order changing venue. If objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies shall set a date for a hearing within 7 days after the objection is made and shall give notice of the hearing to the corporation counsel of that county and to the corporation counsel and register in probate of the county to which change of venue is sought.

SB391-SSA1,82,22 54.34 (1) (k) Whether the proposed ward is a recipient of a public benefit, including medical assistance or a benefit under s. 46.27.

SB391-SSA1,82,24 (L) The agent under any current, valid power of attorney for health care or durable power of attorney that the proposed ward has executed.

SB391-SSA1,83,3 (m) Whether the petitioner is requesting a full or limited guardianship and, if limited, the specific authority sought by the petitioner for the guardian or the specific rights of the individual that the petitioner seeks to have removed or transferred.

SB391-SSA1,83,5 (n) Whether the proposed ward, if married, has children who are not children of the current marriage.

SB391-SSA1,83,9 (p) Whether the petitioner is aware of any guardianship or conservatorship or related pending or ordered proceeding involving the proposed ward in another state or county and, if so, the details of the guardianship, conservationship, or related processings.

SB391-SSA1,83,13 (3) A petition for the receipt and acceptance by this state of a foreign guardianship of a foreign ward who resides in or intends to move to this state may include other petitions related to the foreign guardianship, such as a petition to modify the terms of the foreign guardianship, and shall include all of the following:

SB391-SSA1,83,15 (a) A certified copy of the foreign guardianship order that includes all of the following:

SB391-SSA1,83,16 1. All attachments that describe the duties and powers of the foreign guardian.

SB391-SSA1,83,19 2. All amendments or modifications to the foreign guardianship order that were entered after issuance of the original foreign guardianship order, including any order to transfer the foreign guardianship.

SB391-SSA1,83,20 (b) The address of the foreign court that issued the foreign guardianship order.

SB391-SSA1,83,24 (c) A listing of any other guardianship petitions for the foreign ward that are pending or that have been filed in any jurisdiction at any time within 24 months before the filing of the petition under this subsection and the names and addresses of the courts in which the petitions have been filed.

SB391-SSA1,84,2 (d) The petitioner's name, residence, current address, and any relationship of the petitioner to the foreign ward other than as foreign guardian.

SB391-SSA1,84,3 (e) The name, age, principal residence, and current address of the foreign ward.

SB391-SSA1,84,8 (f) The name and address of any spouse of the foreign ward and any adult children, parents, or adult siblings of the foreign ward. If the foreign ward has no spouse, adult child, parent, or adult sibling, the name and address of at least one adult who is next closest in degree of kinship, as specified in s. 990.001 (16), to the ward, if available.

SB391-SSA1,84,10 (g) The name and address of any person other than the foreign guardian who is responsible for the care or custody of the foreign ward.

SB391-SSA1,84,12 (h) The name and address of any legal counsel of the foreign ward, including any guardian ad litem appointed by the foreign court.

SB391-SSA1,84,13 (i) The reason for the transfer of the foreign guardianship.

SB391-SSA1,84,15 (j) A general statement of the foreign ward's property, its location, its estimated value, and the source and amount of any other anticipated income or receipts.

SB391-SSA1,84,18 54.36 (2) A petitioner or guardian ad litem may petition the court for an order requiring the proposed ward to submit to an examination by a licensed physician or psychologist pursuant to s. 804.10 (1).

SB391-SSA1,84,22 (3) A physician or psychologist who examines a proposed ward under a court order requiring the examination may, without the informed consent of the proposed ward, obtain access to the patient health care records and treatment records of the proposed ward.

SB391-SSA1,85,7 54.38 Notice. (1) Form and delivery of notice. A notice shall be in writing. A copy of the petition, motion, or other required document shall be attached to the notice. Unless otherwise provided, notice may be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Failure of the petitioner to provide notice to all interested persons shall deprive the court of jurisdiction unless receipt of notice is waived by the interested person or under sub. (2) (b) 4.

SB391-SSA1,85,15 (1m) Notice of petition for receipt and acceptance of a foreign guardianship. (a) Notice of a petition for receipt and acceptance of a foreign guardianship, unless otherwise provided, shall be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient. Notice shall be served by the petitioner on all of the following:

SB391-SSA1,85,18 1. The foreign ward. The notice under this subdivision shall be delivered personally, shall be in plain language and large type, and shall include all of the following:

SB391-SSA1,85,21 a. A statement that the foreign ward has the right to a hearing on the petition under s. 54.44 and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person.

SB391-SSA1,85,23 b. A description of the procedures by which the foreign ward may exercise his or her right to a hearing.

SB391-SSA1,85,25 c. A description of the consequences to the foreign ward of a transfer of the foreign guardianship from the foreign jurisdiction to this state.

SB391-SSA1,86,3 2. The foreign court from which the foreign guardianship is sought to be transferred. Notice under this subdivision shall include a request that the foreign court provide all of the following:

SB391-SSA1,86,8 a. Certification that the foreign court has no knowledge that the foreign guardian has engaged in any acts specified in s. 54.68 (2) (a) to (i), failed to perform any duties of a guardian required by the foreign jurisdiction or the foreign court, or performed any acts prohibited to a guardian by the foreign jurisdiction or the foreign court.

SB391-SSA1,86,17 b. Copies of all documents filed with the foreign court that are relevant to the foreign guardianship, including the initial petition for the foreign guardianship and other filed documents relevant to the appointment of the guardian; any reports and recommendations of any guardian ad litem or other individual appointed by the foreign court to evaluate the appropriateness of the foreign guardianship; any reports of health care or mental health care practitioners that describe the capacity of the foreign ward to care for himself or herself or to manage his or her affairs; any periodic status reports on the condition of the foreign ward and his or her assets; and any order to transfer the foreign guardianship.

SB391-SSA1,86,24 3. All interested persons other than the foreign ward, including any foreign legal counsel appointed or retained for the foreign ward and any foreign guardian ad litem appointed for the foreign ward. Notice under this subdivision shall include a statement that informs persons receiving notice of the right to object to the receipt and acceptance of the foreign guardianship and that any request for a hearing must be made within 30 days after the date that the petition is delivered in person, mailed, or sent by facsimile transmission.

SB391-SSA1,87,2 (b) Any of the following shall deprive the court of jurisdiction to hear the petition for receipt and acceptance of the foreign guardianship:

SB391-SSA1,87,3 1. Failure by the petitioner to serve notice as specified in par. (a) 1., 2., or 3.

SB391-SSA1,87,6 2. Failure by the foreign court to provide the certifications and copies within 30 days after receipt of the notice specified in par. (a) 2. or to give indication of compliance within a reasonable period of time.

SB391-SSA1,87,8 (2) (b) Personally or by mail at least 10 days before the time set for hearing, to all of the following:

SB391-SSA1,87,9 1. The proposed ward's counsel, if any.

SB391-SSA1,87,10 2. The proposed ward's guardian ad litem.

SB391-SSA1,87,11 3. Any presumptive adult heirs, as specified in s. 851.09, of the proposed ward.

SB391-SSA1,87,12 4. Any other interested persons, unless specifically waived by the court.

SB391-SSA1,87,14 5. The agent under any durable power of attorney or power of attorney for health care of the ward.

SB391-SSA1,87,15 6. Any person who has legal or physical custody of the proposed ward.

SB391-SSA1,87,17 7. Any public or private agency, charity, or foundation from which the proposed ward is receiving aid or assistance.

SB391-SSA1,87,18 8. The proposed guardian for the proposed ward.

SB391-SSA1,87,19 9. Any other person that the court requires.

SB391-SSA1,87,23 54.40 (4) (c) Interview the proposed guardian, the proposed standby guardian, if any, and any other person seeking appointment as guardian and report to the court concerning the suitability of each individual interviewed to serve as guardian and concerning the report under s. 54.15 (8).

SB391-SSA1,88,2 (d) 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 243 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.

SB391-SSA1,88,4 2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.

SB391-SSA1,88,6 3. Report to the court concerning whether or not the proposed ward's advance planning is adequate to preclude the need for guardianship.

SB391-SSA1,88,8 (g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner's counsel, if any.

SB391-SSA1,88,9 (h) Attend all court proceedings related to the guardianship.

SB391-SSA1,88,11 54.42 Rights of proposed ward or ward. (1) Right to counsel. (a) 1. The proposed ward or ward requests counsel.

SB391-SSA1,88,13 2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.

SB391-SSA1,88,15 3. The court determines that the interests of justice require counsel for the proposed ward or ward.

SB391-SSA1,88,17 (b) Any attorney obtained under par. (a) or appointed under par. (c) shall be an advocate for the expressed wishes of the proposed ward or ward.

SB391-SSA1,88,25 (2) Right to jury trial. The proposed ward or ward has the right to a trial by a jury if demanded by the proposed ward or ward, his or her attorney, or the guardian ad litem, except that the right is waived unless demanded at least 48 hours before the time set for the hearing. The number of jurors for such a trial is determined under s. 756.06 (2) (b). The proposed ward or ward, his or her attorney, or the guardian ad litem each has the right to present and cross-examine witnesses, including any physician or licensed psychologist who reports to the court concerning the proposed ward.

SB391-SSA1,89,1 (3) Right to independent examination.

SB391-SSA1,89,3 (5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.

SB391-SSA1,89,6 (6) Right to hearing in accessible location. The proposed ward or ward has the right to have any hearing regarding the guardianship conducted in a location and manner that is accessible to the proposed ward or ward.

SB391-SSA1,89,12 54.44 Hearing. (1) Time of hearing; provision of reports. (a) Time of hearing for petition. A petition for guardianship, other than a petition under par. (b) or (c) or s. 54.50 (1), shall be heard within 90 days after it is filed. The guardian ad litem and attorney for the proposed ward shall be provided with a copy of the report of the examining physician or psychologist under s. 54.36 (1) at least 96 hours before the time of the hearing.