AB785: Bill Text

AB785,91,8 (2) Contents of petition.

AB785,91,9 (3) Petition for guardianship; review of incompetency.

AB785,91,13 (4) Fees and costs of petition. (a) The court shall award, from the assets of the individual sought to be protectively placed or protectively served, payment of the petitioner's reasonable attorney fees and costs, unless the court finds, after considering all of the following, that it would be inequitable to do so:

AB785,91,16 1. The petitioner's interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship or protective placement or services.

AB785,91,18 2. The ability of the estate of the individual sought to be protectively placed or protectively served to pay the petitioner's reasonable attorney fees and costs.

AB785,91,19 3. Whether the petition was contested and, if so, the nature of the contest.

AB785,91,24 4. Whether the individual sought to be protectively placed or protectively served had executed a durable power of attorney under s. 243.07 or a power of attorney for health care under s. 155.05 or had provided advance consent to nursing home admission or engaged in other advance planning to avoid protective placement or protective services.

AB785,91,25 5. Any other factors that the court considers to be relevant.

AB785,92,1 (5) Where a petition may be filed; venue; county of responsibility.

AB785,92,12 (b) The court in which a petition is first filed under par. (a) shall determine venue. The court shall direct that proper notice be given to any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (a) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition.

Note: Renumbers and reorganizes provisions relating to a petition for protective placement or services. Adds to ch. 55 provisions similar to those in current s. 880.24 (3), stats., requiring the court to award payment of reasonable attorney fees and costs to a person who petitions for protective services or placement. Also, adds new provisions relating to venue in a protective placement or services proceeding.

AB785, s. 158 Section 158. 55.08 of the statutes is created to read:

AB785,92,16 55.08 Protective services or protective placement: standards. (1) Protective placement. A court may under s. 55.12 order protective placement for an individual who meets all of the following standards:

AB785,92,18 (2) Protective services. A court may under s. 55.12 order protective services for an individual who meets all of the following standards:

AB785,92,21 (a) The individual has been determined to be incompetent by a circuit court or is a minor who is alleged to be developmentally disabled and on whose behalf a petition for a guardianship has been submitted.

AB785,93,4 (b) As a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.

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

AB785, s. 159 Section 159 . 55.09 of the statutes is created to read:

AB785,93,7 55.09 Notice of petition and hearing for protective services or placement.

AB785,93,10 (2) Other notice required. In addition to the notice required under sub. (1), notice shall be served, personally or by mail, at least 10 days before the time set for a hearing, upon all of the following:

AB785,93,12 (a) The guardian ad litem, legal counsel, and guardian, if any, of the individual sought to be protected.

AB785,93,14 (b) The agent under an activated power of attorney for health care, if any, of the individual sought to be protected.

AB785,93,15 (c) The presumptive adult heirs, if any, of the individual sought to be protected.

AB785,93,18 (d) Other persons who have physical custody of the individual sought to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained.

AB785,93,19 (e) The county department.

AB785,93,21 (f) Any governmental or private body or group from whom the individual sought to be protected is known to be receiving aid.

AB785,93,22 (g) Any other persons or entities that the court may require.

AB785,94,2 (h) The department, if the individual sought to be protected may be placed in a center for the developmentally disabled.

AB785,94,7 (i) The county department that is participating in the program under s. 46.278 of the county of residence of the individual sought to be protected, if the individual has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for an individual sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department.

AB785,94,10 (3) Notice of petition for involuntary administration of psychotropic medication. Notice of a petition under s. 55.14 shall be served personally or by mail upon the corporation counsel and county department.

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

AB785, s. 160 Section 160 . 55.10 of the statutes is created to read:

AB785,94,13 55.10 Hearing on petition for protective services or protective placement.

AB785,94,22 (2) Attendance. The individual sought to be protected shall be present at the hearing on the petition unless, after a personal interview, the guardian ad litem certifies in writing to the court that the individual is unwilling to participate or unable to participate in a meaningful way or certifies other specific reasons why the individual is unable to attend. If the individual is unable to attend a hearing only because of physical inaccessibility or lack of transportation, the court shall, if requested by the individual, the individual's guardian ad litem, the individual's counsel, or other interested person, hold the hearing in a place where the individual is able to attend.

AB785,95,5 (3) Hearing to be open. The hearing shall be open, unless the individual sought to be protected, or his or her attorney acting with the consent of the individual sought to be protected, requests that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

AB785,95,8 (4) Rights. The following provisions apply to all hearings under this chapter except transfers of placement under s. 55.15 and summary hearings under ss. 55.18 (3) (d) and 55.19 (3) (d):

AB785,95,25 (a) Counsel; costs. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall appoint legal counsel. Counsel shall be provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual sought to be protected is an adult who is indigent, and if counsel was not appointed under s. 977.08, the county in which the hearing is held is liable for any fees due the individual's legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 880.33, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.

AB785,96,7 (c) Trial by jury; right to cross examine witnesses. The individual sought to be protected has the right to a trial by a jury if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The number of jurors shall be determined under s. 756.06 (2) (b). The individual sought to be protected, and the individual's attorney and guardian ad litem have the right to present and cross-examine witnesses, including any person making an evaluation or review under s. 55.11.

AB785,96,9 (e) Independent evaluation. The individual sought to be protected has the right to secure an independent evaluation as provided in s. 55.11 (2).

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

AB785, s. 161 Section 161. 55.11 of the statutes is created to read:

AB785,96,11 55.11 Comprehensive evaluation; recommendations; statements.

AB785,96,18 (2) If requested by the individual sought to be protected, or anyone on the individual's behalf, the individual sought to be protected has the right at his or her own expense, or, if indigent, at the expense of the county where the petition is filed, to secure an independent comprehensive evaluation, if an independent comprehensive evaluation has not already been made. The individual, or anyone on the individual's behalf, may present a report of this independent comprehensive evaluation or the evaluator's personal testimony as evidence at the hearing.

AB785,97,2 (3) A copy of the comprehensive evaluation and any independent comprehensive evaluation shall be provided to the individual's guardian, agent under any activated health care power of attorney, and guardian ad litem, and to the individual or the individual's attorney at least 96 hours in advance of the hearing to determine protective placement or protective services.

AB785,97,6 (4) Where applicable by reason of the particular disability, the county department or an agency with which it contracts under s. 55.02 (2) that has responsibility where the individual has legal residence shall make a recommendation for protective placement or protective services.

AB785,97,11 (5) If the court is considering protective placement of the individual in a center for the developmentally disabled, the court shall request a statement or testimony from the department regarding whether the protective placement is appropriate for the individual's needs and whether it is consistent with the purpose of the center under s. 51.06 (1).

AB785,97,19 (6) If the individual has a developmental disability and the court is considering protective placement of the individual in an intermediate facility or a nursing facility, the court shall request a statement or testimony from the county department of the individual's county of residence that is participating in the program under s. 46.278 as to whether the individual's needs could be met in a noninstitutional setting, except that, if s. 46.279 (4m) applies to the individual, the court shall request the statement or testimony from the department, rather than the county department.

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

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

AB785, s. 162 Section 162. 55.12 of the statutes is created to read:

AB785,98,2 55.12 Order for protective services or protective placement.

AB785,98,5 (7) If an individual to be protectively placed is a resident of a facility licensed for 16 or more beds, the court may consider whether moving the individual would create a serious risk of harm to that individual.

AB785,98,7 (8) The court may order protective services as an alternative to protective placement.

AB785,98,9 (9) The court may order psychotropic medication as a protective service only as provided in s. 55.14.

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

AB785, s. 163 Section 163. 55.13 (2) and (3) of the statutes are created to read:

AB785,98,22 55.13 (2) If the county department or agency with which the county department contracts under s. 55.02 (2) that is providing emergency protective services to an individual under sub. (1) has reason to believe that the individual meets the criteria for protective services under s. 55.08 (2), the county department or agency may file a petition under s. 55.075. If a petition is filed, a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays, and legal holidays, to establish probable cause that the criteria under s. 55.08 (2) are present. The county department or agency shall provide the individual with written notice and orally inform the individual of the time and place of the preliminary hearing. If the individual is not under guardianship, a petition for guardianship shall accompany the petition under s. 55.08 (2), except in the case of a minor who is alleged to be developmentally disabled.

AB785,99,3 (3) Upon finding probable cause under sub. (2), the court may order emergency protective services to continue to be provided for up to 60 days pending the hearing on protective services under s. 55.10.

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

AB785, s. 164 Section 164. 55.135 (title) of the statutes is created to read:

AB785,99,5 55.135 (title) Emergency and temporary protective placement.

Note: Creates a title for new statutory section on emergency and temporary protective placement.

AB785, s. 165 Section 165. 55.14 of the statutes is created to read:

AB785,99,8 55.14 Involuntary administration of psychotropic medication. (1) In this section:

AB785,99,10 (a) "Involuntary administration of psychotropic medication" means any of the following:

AB785,99,12 1. Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.

AB785,99,14 2. Forcibly restraining an individual to enable administration of psychotropic medication.

AB785,99,16 3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

AB785,99,21 (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.

AB785,100,2 (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.

AB785,100,5 (2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service under the requirements of this section.

AB785,100,8 (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:

AB785,100,9 (a) A physician has prescribed psychotropic medication for the individual.

AB785,100,10 (b) The individual is not competent to refuse psychotropic medication.

AB785,100,23 (c) The individual has refused to take the psychotropic medication voluntarily or attempting to administer psychotropic medication to the individual voluntarily is not feasible or is not in the best interests of the individual. If the petition alleges that the individual has refused to take psychotropic medication voluntarily, the petition shall identify the reasons, if known, for the individuals refusal to take psychotropic medication voluntarily. The petition also 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. If the petition alleges that attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual, the petition must identify specific reasons supporting that allegation.

AB785,101,3 (d) The individual's condition for which psychotropic medication has been prescribed is likely to be improved by administration of psychotropic medication and the individual is likely to respond positively to psychotropic medication.

AB785,101,8 (e) Unless psychotropic medication is administered involuntarily, the individual will incur an immediate or imminent substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability of physical harm, impairment, injury, or debilitation shall be evidenced by one of the following:

AB785,101,14 1. The individual's history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement agreement approved by a court under s. 51.20 (8) (bg), or commitment ordered under s. 51.20 (13).

AB785,101,16 2. Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.

AB785,101,21 (4) A petition under this section must include a written statement signed by a physician who has personal knowledge of the individual that provides general clinical information regarding the appropriate use of psychotropic medication for the individual's condition and specific data that indicates that the individual's current condition necessitates the use of psychotropic medication.

AB785,101,25 (5) The guardian ad litem appointed under s. 55.10 (4) (b) for an individual who is the subject of a petition under this section shall report to the court whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interests of the individual.

AB785,102,8 (6) If requested by an individual who is the subject of a petition under this section or anyone on his or her behalf, the individual has the right at his or her own expense, or if indigent at the expense of the county in which the petition is filed, to secure an independent medical or psychological examination relevant to the issues of whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interest of the individual, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

AB785,102,11 (7) Upon the filing of a petition under this section, the court shall appoint counsel as required under s. 55.10 (4) (a). A petition under this section shall be heard within 30 days after it is filed.

AB785,102,21 (8) The court may issue an order authorizing an individual's guardian to consent to involuntary administration of psychotropic medication to the individual and may order involuntary administration of psychotropic medication to the individual as a protective service, with the guardian's consent, if the court or jury finds by clear and convincing evidence that the allegations in the petition required under sub. (3) are true, all other requirements for involuntary administration of psychotropic medication under this section have been met, psychotropic medication is necessary for treating the condition described in the statement under sub. (4), and all other requirements of this chapter for ordering protective services have been met. An order under this section shall do all of the following:

AB785,103,8 (a) Direct the development of a treatment plan for the individual specifying the protective services, including psychotropic medication as ordered by the treating physician, that the individual should receive. If the individual resides in a nursing home or hospital, the nursing home or hospital shall develop the treatment plan. If the individual resides elsewhere, the county department or an agency with which it contracts under s. 55.02 (2) shall develop the treatment plan. The treatment plan shall include a plan for the involuntary administration of psychotropic medication to the individual. The treatment plan is subject to the approval of the guardian and to review and approval by the court. If the court approves the plan, the court shall order the county department or an agency with which it contracts under s. 55.02 (2) to ensure that psychotropic medication is administered in accordance with the treatment plan.

AB785,103,19 (b) Order the individual to comply with the treatment plan under par. (a). The order shall provide that if the individual fails to comply with provisions of the treatment plan that require the individual to take psychotropic medications, the medications may be administered involuntarily with consent of the guardian. The order shall specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of an individual shall specify that a person licensed under s. 441.06, 441.10, or 448.05 (2) or (5) shall be present at all times that psychotropic medication is administered in this manner and shall require the person or facility using forcible restraint to maintain records stating the date of each administration, the medication administered, and the method of forcible restraint utilized.

AB785,104,12 (9) If an individual who is subject to an order under this section is not in compliance with the order because he or she refuses to take psychotropic medication as ordered under the treatment plan, and it is necessary for the individual to be transported to an appropriate facility for forcible restraint for administration of psychotropic medication, the corporation counsel may file with the court a statement of the facts of the noncompliance of the individual. The statement shall be sworn to be true and shall be based upon the information and belief of the person filing the statement. The statement shall be signed by the individual's guardian and by the director or designee of the county department or an agency with which it contracts under s. 55.02 (2) to develop and administer the treatment plan. Upon receipt of the statement of noncompliance, if the court finds by clear and convincing evidence that the individual has substantially failed to comply with the administration of psychotropic medication as ordered under the treatment plan, the court may issue an order authorizing the sheriff or any other law enforcement agency in the county in which the individual is found or in which it is believed that the individual may be present to take the individual into custody and transport him or her to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.

AB785,104,14 (10) Nothing in this section prohibits the involuntary administration of psychotropic medication as an emergency protective service under s. 55.13.

AB785,104,17 (11) The county department or an agency with which it contracts under s. 55.02 (2) shall provide to the department a copy of any order issued under this section that applies to any protectively placed individual in the county.