AB785,92,2119
(a) The individual has been determined to be incompetent by a circuit court or
20is a minor who is alleged to be developmentally disabled and on whose behalf a
21petition for a guardianship has been submitted.
AB785,93,4
1(b) As a result of developmental disabilities, degenerative brain disorder,
2serious and persistent mental illness, or other like incapacities, the individual will
3incur a substantial risk of physical harm or deterioration or will present a
4substantial 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
5Section
159
. 55.09 of the statutes is created to read:
AB785,93,7
655.09 Notice of petition and hearing for protective services or
7placement.
AB785,93,10
8(2) Other notice required. In addition to the notice required under sub. (1),
9notice shall be served, personally or by mail, at least 10 days before the time set for
10a hearing, upon all of the following:
AB785,93,1211
(a) The guardian ad litem, legal counsel, and guardian, if any, of the individual
12sought to be protected.
AB785,93,1413
(b) The agent under an activated power of attorney for health care, if any, of the
14individual sought to be protected.
AB785,93,1515
(c) The presumptive adult heirs, if any, of the individual sought to be protected.
AB785,93,1816
(d) Other persons who have physical custody of the individual sought to be
17protected whose names and addresses are known to the petitioner or can with
18reasonable diligence be ascertained.
AB785,93,1919
(e) The county department.
AB785,93,2120
(f) Any governmental or private body or group from whom the individual sought
21to be protected is known to be receiving aid.
AB785,93,2222
(g) Any other persons or entities that the court may require.
AB785,94,2
1(h) The department, if the individual sought to be protected may be placed in
2a center for the developmentally disabled.
AB785,94,73
(i) The county department that is participating in the program under s. 46.278
4of the county of residence of the individual sought to be protected, if the individual
5has a developmental disability and may be placed in an intermediate facility or a
6nursing facility, except that, for an individual sought to be protected to whom s.
746.279 (4m) applies, this notice shall instead be served on the department.
AB785,94,10
8(3) Notice of petition for involuntary administration of psychotropic
9medication. Notice of a petition under s. 55.14 shall be served personally or by mail
10upon 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
11Section
160
. 55.10 of the statutes is created to read:
AB785,94,13
1255.10 Hearing on petition for protective services or protective
13placement.
AB785,94,22
14(2) Attendance. The individual sought to be protected shall be present at the
15hearing on the petition unless, after a personal interview, the guardian ad litem
16certifies in writing to the court that the individual is unwilling to participate or
17unable to participate in a meaningful way or certifies other specific reasons why the
18individual is unable to attend. If the individual is unable to attend a hearing only
19because of physical inaccessibility or lack of transportation, the court shall, if
20requested by the individual, the individual's guardian ad litem, the individual's
21counsel, or other interested person, hold the hearing in a place where the individual
22is able to attend.
AB785,95,5
1(3) Hearing to be open. The hearing shall be open, unless the individual sought
2to be protected, or his or her attorney acting with the consent of the individual sought
3to be protected, requests that it be closed. If the hearing is closed, only persons in
4interest, including representatives of providers of service and their attorneys and
5witnesses, may be present.
AB785,95,8
6(4) Rights. The following provisions apply to all hearings under this chapter
7except transfers of placement under s. 55.15 and summary hearings under ss. 55.18
8(3) (d) and 55.19 (3) (d):
AB785,95,259
(a)
Counsel; costs. The individual sought to be protected has the right to counsel
10whether or not the individual is present at the hearing on the petition. The court
11shall require representation by full legal counsel whenever the petition alleges that
12the individual is not competent to refuse psychotropic medication under s. 55.14, the
13individual sought to be protected requested such representation at least 72 hours
14before the hearing, the guardian ad litem or any other person states that the
15individual sought to be protected is opposed to the petition, or the court determines
16that the interests of justice require it. If the individual sought to be protected or any
17other person on his or her behalf requests but is unable to obtain legal counsel, the
18court shall appoint legal counsel. Counsel shall be provided at public expense, as
19provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual
20sought to be protected is an adult who is indigent, and if counsel was not appointed
21under s. 977.08, the county in which the hearing is held is liable for any fees due the
22individual's legal counsel. If the individual sought to be protected is represented by
23counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian
24under s. 880.33, the court shall order the counsel appointed under s. 977.08 to
25represent under this section the individual sought to be protected.
AB785,96,7
1(c)
Trial by jury; right to cross examine witnesses. The individual sought to be
2protected has the right to a trial by a jury if demanded by the individual sought to
3be protected or his or her attorney or guardian ad litem. The number of jurors shall
4be determined under s. 756.06 (2) (b). The individual sought to be protected, and the
5individual's attorney and guardian ad litem have the right to present and
6cross-examine witnesses, including any person making an evaluation or review
7under s. 55.11.
AB785,96,98
(e)
Independent evaluation. The individual sought to be protected has the right
9to 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
10Section
161. 55.11 of the statutes is created to read:
AB785,96,11
1155.11 Comprehensive evaluation; recommendations; statements.
AB785,96,18
12(2) If requested by the individual sought to be protected, or anyone on the
13individual's behalf, the individual sought to be protected has the right at his or her
14own expense, or, if indigent, at the expense of the county where the petition is filed,
15to secure an independent comprehensive evaluation, if an independent
16comprehensive evaluation has not already been made. The individual, or anyone on
17the individual's behalf, may present a report of this independent comprehensive
18evaluation or the evaluator's personal testimony as evidence at the hearing.
AB785,97,2
19(3) A copy of the comprehensive evaluation and any independent
20comprehensive evaluation shall be provided to the individual's guardian, agent
21under any activated health care power of attorney, and guardian ad litem, and to the
1individual or the individual's attorney at least 96 hours in advance of the hearing to
2determine protective placement or protective services.
AB785,97,6
3(4) Where applicable by reason of the particular disability, the county
4department or an agency with which it contracts under s. 55.02 (2) that has
5responsibility where the individual has legal residence shall make a
6recommendation for protective placement or protective services.
AB785,97,11
7(5) If the court is considering protective placement of the individual in a center
8for the developmentally disabled, the court shall request a statement or testimony
9from the department regarding whether the protective placement is appropriate for
10the individual's needs and whether it is consistent with the purpose of the center
11under s. 51.06 (1).
AB785,97,19
12(6) If the individual has a developmental disability and the court is considering
13protective placement of the individual in an intermediate facility or a nursing
14facility, the court shall request a statement or testimony from the county department
15of the individual's county of residence that is participating in the program under s.
1646.278 as to whether the individual's needs could be met in a noninstitutional
17setting, except that, if s. 46.279 (4m) applies to the individual, the court shall request
18the statement or testimony from the department, rather than the county
19department.
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
1Section
162. 55.12 of the statutes is created to read:
AB785,98,2
255.12 Order for protective services or protective placement.
AB785,98,5
3(7) If an individual to be protectively placed is a resident of a facility licensed
4for 16 or more beds, the court may consider whether moving the individual would
5create a serious risk of harm to that individual.
AB785,98,7
6(8) The court may order protective services as an alternative to protective
7placement.
AB785,98,9
8(9) The court may order psychotropic medication as a protective service only
9as 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
10Section
163. 55.13 (2) and (3) of the statutes are created to read:
AB785,98,2211
55.13
(2) If the county department or agency with which the county
12department contracts under s. 55.02 (2) that is providing emergency protective
13services to an individual under sub. (1) has reason to believe that the individual
14meets the criteria for protective services under s. 55.08 (2), the county department
15or agency may file a petition under s. 55.075. If a petition is filed, a preliminary
16hearing shall be held within 72 hours, excluding Saturdays, Sundays, and legal
17holidays, to establish probable cause that the criteria under s. 55.08 (2) are present.
18The county department or agency shall provide the individual with written notice
19and orally inform the individual of the time and place of the preliminary hearing.
20If the individual is not under guardianship, a petition for guardianship shall
21accompany the petition under s. 55.08 (2), except in the case of a minor who is alleged
22to be developmentally disabled.
AB785,99,3
1(3) Upon finding probable cause under sub. (2), the court may order emergency
2protective services to continue to be provided for up to 60 days pending the hearing
3on 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
4Section
164. 55.135 (title) of the statutes is created to read:
AB785,99,5
555.135 (title)
Emergency and temporary protective placement.
Note: Creates a title for new statutory section on emergency and temporary
protective placement.
AB785, s. 165
6Section
165. 55.14 of the statutes is created to read:
AB785,99,8
755.14 Involuntary administration of psychotropic medication. (1) In
8this section:
AB785,99,109
(a) "Involuntary administration of psychotropic medication" means any of the
10following:
AB785,99,1211
1. Placing psychotropic medication in an individual's food or drink with
12knowledge that the individual protests receipt of the psychotropic medication.
AB785,99,1413
2. Forcibly restraining an individual to enable administration of psychotropic
14medication.
AB785,99,1615
3. Requiring an individual to take psychotropic medication as a condition of
16receiving privileges or benefits.
AB785,99,2117
(c) "Protest" means make more than one discernible negative response, other
18than mere silence, to the offer of, recommendation for, or other proffering of
19voluntary receipt of psychotropic medication. "Protest" does not mean a discernible
20negative response to a proposed method of administration of the psychotropic
21medication.
AB785,100,2
1(d) "Psychotropic medication" means a prescription drug, as defined in s. 450.01
2(20), that is used to treat or manage a psychiatric symptom or challenging behavior.
AB785,100,5
3(2) Involuntary administration of psychotropic medication, with consent of a
4guardian, may be ordered as a protective service under the requirements of this
5section.
AB785,100,8
6(3) In addition to the other requirements of this chapter pertaining to petitions
7for protective services, a petition under this section shall allege that all of the
8following are true:
AB785,100,99
(a) A physician has prescribed psychotropic medication for the individual.
AB785,100,1010
(b) The individual is not competent to refuse psychotropic medication.
AB785,100,2311
(c) The individual has refused to take the psychotropic medication voluntarily
12or attempting to administer psychotropic medication to the individual voluntarily is
13not feasible or is not in the best interests of the individual. If the petition alleges that
14the individual has refused to take psychotropic medication voluntarily, the petition
15shall identify the reasons, if known, for the individuals refusal to take psychotropic
16medication voluntarily. The petition also shall provide evidence showing that a
17reasonable number of documented attempts to administer psychotropic medication
18voluntarily using appropriate interventions that could reasonably be expected to
19increase the individual's willingness to take psychotropic medication voluntarily
20have been made and have been unsuccessful. If the petition alleges that attempting
21to administer psychotropic medications to the individual voluntarily is not feasible
22or is not in the best interests of the individual, the petition must identify specific
23reasons supporting that allegation.
AB785,101,3
1(d) The individual's condition for which psychotropic medication has been
2prescribed is likely to be improved by administration of psychotropic medication and
3the individual is likely to respond positively to psychotropic medication.
AB785,101,84
(e) Unless psychotropic medication is administered involuntarily, the
5individual will incur an immediate or imminent substantial probability of physical
6harm, impairment, injury, or debilitation or will present a substantial probability of
7physical harm to others. The substantial probability of physical harm, impairment,
8injury, or debilitation shall be evidenced by one of the following:
AB785,101,149
1. The individual's history of at least 2 episodes, one of which has occurred
10within the previous 24 months, that indicate a pattern of overt activity, attempts,
11threats to act, or omissions that resulted from the individual's failure to participate
12in treatment, including psychotropic medication, and that resulted in a finding of
13probable cause for commitment under s. 51.20 (7), a settlement agreement approved
14by a court under s. 51.20 (8) (bg), or commitment ordered under s. 51.20 (13).
AB785,101,1615
2. Evidence that the individual meets one of the dangerousness criteria set
16forth in s. 51.20 (1) (a) 2. a. to e.
AB785,101,21
17(4) A petition under this section must include a written statement signed by
18a physician who has personal knowledge of the individual that provides general
19clinical information regarding the appropriate use of psychotropic medication for the
20individual's condition and specific data that indicates that the individual's current
21condition necessitates the use of psychotropic medication.
AB785,101,25
22(5) The guardian ad litem appointed under s. 55.10 (4) (b) for an individual who
23is the subject of a petition under this section shall report to the court whether the
24allegations in the petition required under sub. (3) are true, and whether involuntary
25administration of psychotropic medication is in the best interests of the individual.
AB785,102,8
1(6) If requested by an individual who is the subject of a petition under this
2section or anyone on his or her behalf, the individual has the right at his or her own
3expense, or if indigent at the expense of the county in which the petition is filed, to
4secure an independent medical or psychological examination relevant to the issues
5of whether the allegations in the petition required under sub. (3) are true, and
6whether involuntary administration of psychotropic medication is in the best
7interest of the individual, and to present a report of this independent evaluation or
8the evaluator's personal testimony as evidence at the hearing.
AB785,102,11
9(7) Upon the filing of a petition under this section, the court shall appoint
10counsel as required under s. 55.10 (4) (a). A petition under this section shall be heard
11within 30 days after it is filed.
AB785,102,21
12(8) The court may issue an order authorizing an individual's guardian to
13consent to involuntary administration of psychotropic medication to the individual
14and may order involuntary administration of psychotropic medication to the
15individual as a protective service, with the guardian's consent, if the court or jury
16finds by clear and convincing evidence that the allegations in the petition required
17under sub. (3) are true, all other requirements for involuntary administration of
18psychotropic medication under this section have been met, psychotropic medication
19is necessary for treating the condition described in the statement under sub. (4), and
20all other requirements of this chapter for ordering protective services have been met.
21An order under this section shall do all of the following:
AB785,103,822
(a) Direct the development of a treatment plan for the individual specifying the
23protective services, including psychotropic medication as ordered by the treating
24physician, that the individual should receive. If the individual resides in a nursing
25home or hospital, the nursing home or hospital shall develop the treatment plan. If
1the individual resides elsewhere, the county department or an agency with which it
2contracts under s. 55.02 (2) shall develop the treatment plan. The treatment plan
3shall include a plan for the involuntary administration of psychotropic medication
4to the individual. The treatment plan is subject to the approval of the guardian and
5to review and approval by the court. If the court approves the plan, the court shall
6order the county department or an agency with which it contracts under s. 55.02 (2)
7to ensure that psychotropic medication is administered in accordance with the
8treatment plan.
AB785,103,199
(b) Order the individual to comply with the treatment plan under par. (a). The
10order shall provide that if the individual fails to comply with provisions of the
11treatment plan that require the individual to take psychotropic medications, the
12medications may be administered involuntarily with consent of the guardian. The
13order shall specify the methods of involuntary administration of psychotropic
14medication to which the guardian may consent. An order authorizing the forcible
15restraint of an individual shall specify that a person licensed under s. 441.06, 441.10,
16or 448.05 (2) or (5) shall be present at all times that psychotropic medication is
17administered in this manner and shall require the person or facility using forcible
18restraint to maintain records stating the date of each administration, the medication
19administered, and the method of forcible restraint utilized.
AB785,104,12
20(9) If an individual who is subject to an order under this section is not in
21compliance with the order because he or she refuses to take psychotropic medication
22as ordered under the treatment plan, and it is necessary for the individual to be
23transported to an appropriate facility for forcible restraint for administration of
24psychotropic medication, the corporation counsel may file with the court a statement
25of the facts of the noncompliance of the individual. The statement shall be sworn to
1be true and shall be based upon the information and belief of the person filing the
2statement. The statement shall be signed by the individual's guardian and by the
3director or designee of the county department or an agency with which it contracts
4under s. 55.02 (2) to develop and administer the treatment plan. Upon receipt of the
5statement of noncompliance, if the court finds by clear and convincing evidence that
6the individual has substantially failed to comply with the administration of
7psychotropic medication as ordered under the treatment plan, the court may issue
8an order authorizing the sheriff or any other law enforcement agency in the county
9in which the individual is found or in which it is believed that the individual may be
10present to take the individual into custody and transport him or her to an
11appropriate facility for administration of psychotropic medication using forcible
12restraint, with consent of the guardian.
AB785,104,14
13(10) Nothing in this section prohibits the involuntary administration of
14psychotropic medication as an emergency protective service under s. 55.13.
AB785,104,17
15(11) The county department or an agency with which it contracts under s. 55.02
16(2) shall provide to the department a copy of any order issued under this section that
17applies to any protectively placed individual in the county.
AB785,104,19
18(12) The department shall annually submit to the legislature under s. 13.172
19(2) a report regarding orders under this section.
AB785,104,20
20(13) An order under this section is subject to annual review under s. 55.19.
Note: Establishes a procedure by which a court may order involuntary
administration of psychotropic medication, with consent of a guardian, as a protective
service, as described in detail in the prefatory note.
AB785, s. 166
21Section
166. 55.15 of the statutes is created to read:
AB785,105,4
2255.15 Transfer of an individual under a protective placement order.
23(1) Transfers authorized. An individual under a protective placement order may
1be transferred between protective placement units, between protective placement
2facilities, or from a protective placement unit to a medical facility. The individual
3may not be transferred, under the protective placement order, to any facility for
4which commitment procedures are required under ch. 51.
AB785,105,10
5(2) Who may transfer. A guardian, a county department or agency with which
6it contracts under s. 55.03 (2) that provided protective placement to the individual
7pursuant to the order of the court, the department, or a protective placement facility
8may transfer an individual under a protective placement order under the
9requirements of this section, notwithstanding the fact that a court order has named
10a specific facility for the protective placement of the individual.
AB785,105,13
11(3) Consent of guardian required. No individual may be transferred under
12this section without the written consent of the individual's guardian, except in the
13case of an emergency transfer under sub. (5) (b).
AB785,105,17
14(4) Consent of county department. No individual may be transferred under
15this section to a facility that is more costly to the county without the written consent
16of the county department, except in the case of an emergency transfer under sub. (5)
17(b).
AB785,105,24
18(5) Notice of transfer. (a)
Nonemergency transfer. A person or entity who
19initiates a transfer shall provide 10 days' prior written notice of a transfer to the court
20that ordered the protective placement and to each of the other persons and entities
21specified in sub. (2) who did not initiate the transfer. The notice of transfer shall
22include notice of the right of the individual under a protective placement, the
23individual's attorney, if any, or other interested person to petition the court for a
24hearing on the transfer.
AB785,106,10
1(b)
Emergency transfer. If an emergency makes it impossible to provide the
2notice specified in par. (a) or to obtain the prior written consent of the guardian
3specified in sub. (3), the individual may be transferred without the prior written
4consent of the guardian and without the notice specified in par. (a). Written notice
5shall be provided immediately upon transfer to each of the persons and entities
6specified under sub. (2) who did not initiate the transfer. Notice shall also be
7provided to the court that ordered the protective placement within a reasonable time,
8not to exceed 48 hours from the time of transfer. The notice shall include notice of
9the right to file with the court under sub. (6) a petition objecting to the emergency
10transfer.
AB785,106,15
11(6) Petition. An individual under protective placement, the individual's
12guardian, the individual's attorney, if any, or any other interested person may file a
13petition with the court objecting to a proposed transfer or to an emergency transfer
14made under sub. (5) (b). The petition shall specify the reasons for the person's
15objection to the transfer.
AB785,106,17
16(7) Hearing. (a) The court shall order a hearing within 10 days after the filing
17of a petition under sub. (6).
AB785,106,2018
(b) The court shall notify the petitioner, the individual under protective
19placement, the individual's guardian, the individual's attorney, if any, and the county
20department of the time and place of the hearing.
AB785,106,2521
(c) A guardian ad litem shall be appointed to represent the individual under
22protective placement at the hearing. If the individual is an adult who is indigent, the
23county in which the hearing is held shall be liable for guardian ad litem fees. If the
24individual is a minor, the individual's parents or the county in which the hearing is
25held shall be liable for guardian ad litem fees as provided in s. 48.235 (8).