Amendment SSA1-SB391

SB391-SSA1,102,25 (c) The amount of the compensation may be determined on an hourly basis, as a monthly stipend, or on any other basis that the court determines is reasonable under the circumstances. The court may establish the amount or basis for computing the guardian's compensation at the time of the guardian's initial appointment.

SB391-SSA1,103,4 (2) Reimbursement of expenses. The guardian shall be reimbursed for the amount of the guardian's reasonable expenses incurred in the execution of the guardian's duties, including necessary compensation paid to an attorney, an accountant, a broker, and other agents or service providers.

SB391-SSA1,103,7 (3) When court approval required. A court must approve compensation and reimbursement of expenses before payment to the guardian is made, but court approval need not be obtained before charges are incurred.

SB391-SSA1,103,10 subchapter VI voluntary proceedings; conservators

SB391-SSA1,103,11 54.76 Conservator; appointment; duties and powers; termination.

SB391-SSA1,103,18 (3g) If the individual has executed a durable power of attorney before the proceedings under this section, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the individual's conservator may not make decisions for the individual that may be made by the agent, unless the conservator is the agent.

SB391-SSA1,103,21 (3m) A person may at any time bring a petition for the appointment of a standby conservator for an individual for whom a conservator has been appointed under sub. (2).

SB391-SSA1,104,10 (3n) At any hearing conducted under this section the court may designate one or more standby conservators for an individual for whom a conservator has been appointed under sub. (2) whose appointment shall become effective immediately upon the death, unwillingness, unavailability, or inability to act, resignation, or court's removal of the initially appointed conservator or during a period, as determined by the initially appointed conservator or the court, when the initially appointed conservator is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby conservator shall be the same as those of the initially appointed conservator. The standby conservator shall receive a copy of the court order establishing or modifying the initial conservatorship and the order designating the standby conservator. Upon assuming office, the standby conservator shall so notify the court. Upon notification, the court shall designate this conservator as permanent or shall specify the time period for a limited standby conservatorship.

SB391-SSA1,104,14 (6) The court that appointed the conservator shall have continuing jurisdiction over the conservator. Any of the following, if committed by a conservator with respect to a conservatee or the conservatee's income or assets, constitutes cause for removal of the conservator under sub. (7) (a) 5:

SB391-SSA1,104,16 (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.

SB391-SSA1,104,17 (b) Committing fraud, waste, or mismanagement.

SB391-SSA1,104,19 (c) Abusing or neglecting the conservatee or knowingly permitting others to do so.

SB391-SSA1,104,20 (d) Engaging in self-dealing.

SB391-SSA1,104,22 (e) Failing to provide adequately for the personal needs of the conservatee from the available income and assets and any available public benefits.

SB391-SSA1,104,23 (f) Failing to act in the best interests of the conservatee.

SB391-SSA1,104,25 (g) Failing to disclose conviction for a crime that would have prevented appointment of the person as conservator.

SB391-SSA1,105,1 (h) Failing to disclose that the conservator is listed under s. 146.40 (4g) (a) 2.

SB391-SSA1,105,3 (7) (a) The powers of a conservator may not be terminated without a hearing and may not be terminated unless any of the following occurs:

SB391-SSA1,105,5 1. The court removes the conservator on the court's own motion or under sub. (4).

SB391-SSA1,105,7 2. The court appoints a guardian for the individual whose income and assets are conserved.

SB391-SSA1,105,8 3. The individual whose income and assets are conserved dies.

SB391-SSA1,105,10 4. The conservator or individual whose income and assets are conserved changes residence to another state.

SB391-SSA1,105,11 5. The court finds cause, as specified in sub. (6), for removal of the conservator.

SB391-SSA1,105,17 (b) If anyone objects to termination of the conservatorship and alleges that the individual whose income and assets are conserved is appropriate for appointment of a guardian, the court may stay the hearing under par. (a) for 14 days to permit any interested person to file a petition for guardianship. If no petition is filed, the court may terminate the conservatorship and may appoint a guardian ad litem for the individual.

SB391-SSA1,106,2 (8) If a court terminates a conservatorship or a conservator resigns, is removed, or dies, the conservator or the conservator's personal representative or special administrator shall promptly render a final account of the former conservatee's income and assets to the court and to the former conservatee, any guardian of the former conservatee, or any deceased conservatee's personal representative or special administrator, as appropriate. If the conservator dies and the conservator and the deceased conservatee's personal representative or special administrator are the same person, the deceased conservatee's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the conservatee's estate.

SB391-SSA1,106,8 (9) (a) If a conservator resigns, is removed, or dies, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor conservator. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor conservator be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a conservator.

SB391-SSA1,106,13 (b) If the appointment under par. (a) is made without hearing, the successor conservator shall provide notice to the individual for whom a conservator has been appointed and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor conservator. The notice shall be served personally or by mail not later than 10 days after the appointment.

SB391-SSA1,106,14 subchapter vii

SB391-SSA1,106,15 uniform guardianship acts

SB391-SSA1,106,16 54.850 Definitions. In this subchapter:

SB391-SSA1,106,18 (1) "Administration" means any proceeding relating to a decedent's estate whether testate or intestate.

SB391-SSA1,106,20 (2) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.

SB391-SSA1,106,23 (3) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under the decedent's will or under the statutes of intestate succession.

SB391-SSA1,106,24 (4) "Person interested" has the meaning given in s. 851.21.

SB391-SSA1, s. 101 Section 101. 55.01 (1v) of the statutes is created to read:

SB391-SSA1,107,4 55.01 (1v) "Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual 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.

SB391-SSA1, s. 102 Section 102. 55.01 (6t) of the statutes is created to read:

SB391-SSA1,107,8 55.01 (6t) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

SB391-SSA1, s. 103 Section 103. 55.01 (6v) of the statutes is created to read:

SB391-SSA1,107,19 55.01 (6v) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that 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, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability, as defined in s. 51.01 (5) (a), or of alcohol or drug dependence.

SB391-SSA1, s. 104 Section 104. 55.02 of the statutes is amended to read:

SB391-SSA1,108,15 55.02 Protective service system; establishment. The department shall develop a statewide system of protective service for mentally retarded and other developmentally disabled persons, for aged infirm persons, for chronically mentally ill persons, and for persons with other like incapacities incurred at any age in accordance with rules promulgated by the department. The protective service system shall be designed to encourage independent living and to avoid protective placement whenever possible. The system shall use the planning and advice of agencies, including the county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437. The chairperson of each county board of supervisors shall designate a county department under s. 46.215, 46.22, 51.42, or 51.437 that is providing services in his or her county or a joint mechanism of these county departments to have the responsibility for local planning for the protective service system. The chairperson of the Milwaukee County board of supervisors shall designate the county department under s. 46.215 to serve as the county protective services agency for purposes of s. 55.043. The department and these county departments shall cooperate in developing a coordinated system of services. The department shall provide direct services and enter into contracts with any responsible public or private agency for provision of protective services. In each county, the county department designated under this section shall determine the reporting requirements applicable to the county under s. 880.38 (3) 54.25 (1) (a).

SB391-SSA1, s. 105 Section 105. 55.03 of the statutes is amended to read:

SB391-SSA1,108,21 55.03 Status of guardian. No agency acting as a guardian appointed under ch. 54. or ch. 880 shall, 2003 stats., may be a provider of protective services or placement for its ward under this chapter. Nothing in this chapter shall may be construed to prohibit the transfer of guardianship and legal custody under s. 48.427 or 48.43.

SB391-SSA1, s. 106 Section 106. 55.05 (2) (d) of the statutes is amended to read:

SB391-SSA1,109,8 55.05 (2) (d) The court may order protective services for an individual for whom a determination of incompetency is made under s. 880.33 54.10 (3) 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. The court may order the involuntary administration of psychotropic medication as a protective service under this paragraph only if a determination of incompetency is made for the individual under s. 880.33 (4m). The court may authorize a guardian to consent to forcible administration of psychotropic medication for an individual only if the court has made a finding under s. 880.33 (4r) (b) that the individual has substantially failed to comply with the administration of psychotropic medication under the individual's treatment plan only under the requirements of s. 55.14.

SB391-SSA1, s. 107 Section 107. 55.05 (5) (b) 1. of the statutes is amended to read:

SB391-SSA1,109,16 55.05 (5) (b) 1. Guardians of persons who have been found adjudicated incompetent under s. 880.33 may consent to admission to a foster home, group home or community-based residential facility, as defined under s. 50.01 (1g), without a protective placement under s. 55.06 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a home or facility that implements those rights.

SB391-SSA1, s. 108 Section 108. 55.05 (5) (b) 2. of the statutes is amended to read:

SB391-SSA1,110,3 55.05 (5) (b) 2. Guardians of persons who have been found adjudicated incompetent under s. 880.33 may consent to admission 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 that consent, the guardian shall 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. Admission under this paragraph is not permitted for an individual for whom the primary purpose of admission is for treatment or services related to the individual's mental illness or developmental disability.

SB391-SSA1, s. 109 Section 109. 55.06 (1) (intro.) of the statutes is amended to read:

SB391-SSA1,110,15 55.06 (1) (intro.) A protective placement under this section is a placement of a ward for the primary purpose of providing care and custody. To be eligible for placement, an individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive placement upon attaining the age of 14. No protective placement under this section may be ordered unless there is a determination an adjudication of incompetency in accordance with ch. 880 this state, except in the case of a minor who is alleged to be developmentally disabled, and there is a finding of a need for protective placement in accordance with sub. (2) except as provided in subs. (11) and (12). A procedure for adult protective placement may be initiated 6 months prior to an individual's birthday at which he or she first becomes eligible for placement.

SB391-SSA1, s. 110 Section 110. 55.06 (1) (a) of the statutes is amended to read:

SB391-SSA1,110,23 55.06 (1) (a) The board designated under s. 55.02 department, the county department or an agency designated by it with which the county department contracts under s. 55.05 (2), a guardian, or an interested person may file a petition for appointment of a guardian and for protective services or protective placement for the individual. The department shall provide for a schedule of reimbursement for the cost of such the proceedings based upon the ability to pay of the proposed ward or person individual to be protected.

SB391-SSA1, s. 111 Section 111. 55.06 (2) (b) of the statutes is amended to read:

SB391-SSA1,111,3 55.06 (2) (b) Except in the case of a minor who is alleged to be developmentally disabled, has either been determined to be adjudicated incompetent by a circuit court, or has had submitted on the minor's behalf a petition for a guardianship;

SB391-SSA1, s. 112 Section 112. 55.06 (3) (c) of the statutes is amended to read:

SB391-SSA1,111,13 55.06 (3) (c) The A petition under sub. (1) shall be filed in the county of residence of the person individual to be protected, as determined under s. 51.40 or by the individual's guardian or where the individual is physically present due to circumstances including those specified under s. 51.22 (4). If an individual has not received services under ch. 46, 51, or 55 or if an individual has received services under ch. 46, 51, or 55 that have been terminated and has established residence in a county other than that in which the individual resided when the services were received, the court may determine the individual's county of residence. The county of residence under this paragraph is the county of responsibility.

SB391-SSA1, s. 113 Section 113. 55.06 (3) (d) of the statutes is created to read:

SB391-SSA1,112,4 55.06 (3) (d) The court in which a petition is first filed under par. (c) 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. (c) 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. If any potentially responsible or affected county or party objects to the court's finding of venue, the court may refer the issue to the department for a determination of the county of residence under s. 51.40 (2) (g) and may suspend ruling on the motion for change of venue until the determination under s. 51.40 (2) (g) is final.

SB391-SSA1, s. 114 Section 114. 55.06 (4) of the statutes is amended to read:

SB391-SSA1,112,10 55.06 (4) A petition for guardianship if required under sub. (2) (b) must be heard prior to placement under this section. If incompetency has been determined under s. 880.33 adjudicated in this state more than one year preceding the filing of an application for protective placement, the court shall review the finding of incompetency.

SB391-SSA1, s. 115 Section 115. 55.06 (5) of the statutes is amended to read:

SB391-SSA1,113,10 55.06 (5) Notice of a petition for placement shall be served upon the person sought to be placed, by personal service, at least 10 days prior to the time set for a hearing. Upon service of the notice, the person sought to be protected shall be informed of the complete contents of the notice. The person serving the notice shall return a certificate to the circuit judge verifying that the petition has been delivered and notice given. The notice shall include the names of all petitioners. Notice shall also be served personally or by mail upon the person's guardian ad litem, legal counsel, guardian, if any, presumptive adult heirs, and upon other persons who have physical custody of the person to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private body or group from whom the person to be protected is known to be receiving aid, and to such other persons or entities as the court may require. Notice shall also be served personally or by mail upon the department at least 10 days prior to the time set for hearing if the person sought to be protected may be placed in a center for the developmentally disabled. Notice shall also be served personally or by mail, at least 10 days before the time set for hearing, upon the county department that is participating in the program under s. 46.278 of the county of residence of the person sought to be protected, if the person has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for a person sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department. The individual adjudicated incompetent or proposed incompetent for a determination of incompetency is presumed able to attend the hearing unless, after a personal interview, the guardian ad litem certifies to the court that the person is unable to attend.

SB391-SSA1, s. 116 Section 116. 55.06 (6) of the statutes is amended to read:

SB391-SSA1,113,24 55.06 (6) Section 880.33 (2) applies Sections 54.42, 54.44, and 54.46 apply to all hearings under this chapter except for transfers of placement under sub. (9) (b), and (c) and (e). A person to be protected shall have a guardian ad litem who is an attorney appointed in accordance with s. 757.48 (1) present at all hearings under this chapter if the person does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. If the person is an adult who is indigent, the county of legal settlement shall be liable for guardian ad litem fees. If the person is a child, the person's parents or the county of legal settlement shall be liable for guardian ad litem fees as provided in s. 48.235 (8). The subject individual, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including any person making an evaluation or review under sub. (8) (c).

SB391-SSA1, s. 117 Section 117. 55.06 (8) (c) of the statutes is amended to read:

SB391-SSA1,114,5 55.06 (8) (c) A medical, psychological, social, vocational and educational evaluation and review, where necessary, and any recommendations for or against maintenance of partial legal rights as provided in s. 880.33 54.25 (2). Such evaluation and review shall include recommendations for placement consistent with the least restrictive environment required.

SB391-SSA1, s. 118 Section 118. 55.06 (10) (c) of the statutes is amended to read:

SB391-SSA1,114,18 55.06 (10) (c) Except in the case of a minor who is developmentally disabled and who has a parent or person in the place of a parent, termination of guardianship automatically revokes any protective placement made or protective services provided under this chapter unless the placement or services are continued on a voluntary basis. Notice to this effect shall be given to the ward by the provider of services at the time of termination. If protective placement is made or protective services are provided under this chapter to a minor who is developmentally disabled, the attainment of the age of majority by such the individual automatically revokes any such protective placement made or protective services provided unless the placement or services are continued on a voluntary basis, or there is a finding an adjudication of incompetency and appointment of a guardian pursuant to ch. 880 in this state.

SB391-SSA1, s. 119 Section 119. 55.06 (14) of the statutes is amended to read:

SB391-SSA1,115,4 55.06 (14) Prior to discharge of an individual from a protective placement, the appropriate board which county department that is responsible for protective placement shall review the need for provision of continuing protective services or for, continuation of full or limited guardianship, or provision for such guardianship, if the individual has no guardian, guardianship. Recommendation shall be made to the court if If the county department's recommendation includes a course of action for which court approval would be required, the county department shall make the recommendation to the court. Prior to discharge of the individual from any state mental health institute or center for the developmentally disabled, the department shall make such the review under s. 51.35.

SB391-SSA1, s. 120 Section 120. 55.06 (17) (b) of the statutes is amended to read:

SB391-SSA1,115,11 55.06 (17) (b) If the subject 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) . If the subject is an adult who has been adjudicated incompetent in this state, consent for release of information from and access to court records may be given only as provided in s. 54.75.

SB391-SSA1, s. 121 Section 121. 55.14 of the statutes is created to read:

SB391-SSA1,115,14 55.14 Involuntary administration of psychotropic medication. (1) In this section:

SB391-SSA1,115,16 (a) "Involuntary administration of psychotropic medication" means any of the following:

SB391-SSA1,115,18 1. Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.

SB391-SSA1,115,20 2. Forcibly restraining an individual to enable administration of psychotropic medication.

SB391-SSA1,115,22 3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

SB391-SSA1,116,2 (c) "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.

SB391-SSA1,116,4 (d) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

SB391-SSA1,116,7 (2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service only under the requirements of this section.

SB391-SSA1,116,10 (3) In addition to the other requirements of this chapter pertaining to petitions for protective services, a petition under this section shall allege that all of the following are true:

SB391-SSA1,116,11 (a) A physician has prescribed psychotropic medication for the individual.

SB391-SSA1,116,12 (b) The individual is not competent to refuse psychotropic medication.

SB391-SSA1,116,13 (c) One of the following is true:

SB391-SSA1,116,20 1. The individual has refused to take the psychotropic medication voluntarily. If this is alleged, the petition shall identify, if known, the reasons the individual refuses to take psychotropic medication voluntarily and shall provide evidence showing that a reasonable number of documented attempts to administer psychotropic medication voluntarily using appropriate interventions that could reasonably be expected to increase the individual's willingness to take psychotropic medication voluntarily have been made and have been unsuccessful.

SB391-SSA1,116,23 2. Attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual. If this is alleged, the petition must identify specific reasons supporting that allegation.