AB785: Bill Text

Note: Sections 174 and 175 delete the word "chronic" and replace it with the term "serious and persistent" to modify the term "mental illness", which is more up-to-date terminology.

AB785, s. 176 Section 176. 609.65 (1) (intro.) of the statutes is amended to read:

AB785,132,10 609.65 (1) (intro.) If an enrollee of a limited service health organization, preferred provider plan, or defined network plan is examined, evaluated, or treated for a nervous or mental disorder pursuant to a court order under s. 880.33 (4m) or (4r), 2003 stats., an emergency detention under s. 51.15, a commitment or a court order under s. 51.20 or 880.33 (4m) or (4r), an order under s. 55.14 or 55.19 (3) (e), or an order under ch. 980, then, notwithstanding the limitations regarding participating providers, primary providers, and referrals under ss. 609.01 (2) to (4) and 609.05 (3), the limited service health organization, preferred provider plan, or defined network plan shall do all of the following:

Note: Changes a cross-reference in current law regarding insurance coverage for court-ordered services for the mentally ill, to reflect renumbering and amending of ch. 55.

AB785, s. 177 Section 177. 757.69 (1) (h) of the statutes is amended to read:

AB785,132,20 757.69 (1) (h) Hear petitions for commitment and conduct probable cause hearings under ss. 51.20, 51.45, 55.13, and 55.06 (11) 55.135, conduct reviews of guardianships and protective placements and protective services under chs. 55 and 880, advise a person alleged to be mentally ill of his or her rights under the United States and Wisconsin constitutions, and, if the person claims or appears to be unable to afford counsel, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child to the state public defender who shall appoint counsel for the child without a determination of indigency, as provided in s. 48.23 (4).

Note: Changes a cross-reference in current law authorizing circuit court commissioners to conduct probable cause hearings on emergency protective placements, to reflect renumbering and amending of ch. 55 and authorizes commissioners to conduct probable cause hearings for emergency protective services, which are created in the bill.

AB785, s. 178 Section 178. 767.24 (7) (b) of the statutes is amended to read:

AB785,133,6 767.24 (7) (b) A parent who has been denied periods of physical placement with a child under this section is subject to s. 118.125 (2) (m) with respect to that child's school records, s. 51.30 (5) (bm) with respect to the child's court or treatment records, s. 55.07 55.23 with respect to the child's records relating to protective services, and s. 146.835 with respect to the child's patient health care records.

Note: Changes a cross-reference in current law regarding access to a child's records relating to protective services by a parent who has been denied periods of physical placement with a child, to reflect renumbering and amending of ch. 55.

AB785, s. 179 Section 179. 808.075 (4) (c) 1. of the statutes is amended to read:

AB785,133,10 808.075 (4) (c) 1. Review Protective placement review under s. 55.18, modification under s. 55.16, or termination of protective placement under s. 55.06 (10) 55.17.

Note: Changes a cross-reference in current law regarding permitted court actions pending appeal, to reflect renumbering and amending of ch. 55.

AB785, s. 180 Section 180. 808.075 (4) (c) 2. of the statutes is amended to read:

AB785,133,12 808.075 (4) (c) 2. Hearing required upon transfer under s. 55.06 (9) 55.15.

Note: Changes a cross-reference in current law regarding permitted court actions pending appeal, to reflect renumbering and amending of ch. 55.

AB785, s. 181 Section 181. 808.075 (4) (c) 3. of the statutes is amended to read:

AB785,133,14 808.075 (4) (c) 3. Enforcement of patient's rights under s. 55.07 55.23.

Note: Changes a cross-reference in current law regarding permitted court actions pending appeal, to reflect renumbering and amending of ch. 55.

AB785, s. 182 Section 182. 809.30 (1) (b) 5. of the statutes is amended to read:

AB785,133,17 809.30 (1) (b) 5. Any other person who may appeal under ss. 51.13 (5), 51.20 (15), or 55.06 (18) 55.20.

Note: Changes a cross-reference in current law regarding appeal procedures in cases under ch. 55, to reflect renumbering and amending of ch. 55.

AB785, s. 183 Section 183. 809.30 (3) of the statutes is amended to read:

AB785,134,8 809.30 (3) Appeals by state or other party; appointment of counsel. In a case in which the state of Wisconsin, the representative of the public, any other party, or any person who may appeal under s. 51.13 (5), 51.20 (15), or 55.06 (18) 55.20 appeals and the person who is the subject of the case or proceeding is a child or claims to be indigent, the court shall refer the person who is the subject of the case or proceeding to the state public defender for the determination of indigency and the appointment of legal counsel under ch. 977.

Note: Changes a cross-reference in current law regarding appeal procedures in cases under ch. 55, to reflect renumbering and amending of ch. 55.

AB785, s. 184 Section 184. 813.123 (4) (a) (intro.) of the statutes is amended to read:

AB785,134,17 813.123 (4) (a) (intro.) Unless the vulnerable adult, guardian or guardian ad litem consents in writing and the judge or circuit court commissioner agrees that the contact is in the best interests of the vulnerable adult, a judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to avoid interference with an investigation of the vulnerable adult under s. 55.043, or the delivery of protective services to or a protective placement of the vulnerable adult under s. 55.05 or a protective placement of the vulnerable adult under s. 55.06 ch. 55 if all of the following occur:

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 185 Section 185. 813.123 (4) (a) 2. of the statutes is amended to read:

AB785,135,2 813.123 (4) (a) 2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has interfered with, or, based on prior conduct of the respondent, may interfere with, an investigation of the vulnerable adult under s. 55.043, or the delivery of protective services to or a protective placement of the vulnerable adult under s. 55.05 or a protective placement of the vulnerable adult under s. 55.06 ch. 55.

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 186 Section 186. 813.123 (5) (a) (intro.) of the statutes is amended to read:

AB785,135,10 813.123 (5) (a) (intro.) Unless the vulnerable adult, guardian or guardian ad litem consents to that contact in writing and the judge agrees that the contact is in the best interests of the vulnerable adult, a judge may grant an injunction ordering the respondent to avoid interference with an investigation of the vulnerable adult under s. 55.043, or the delivery of protective services to or a protective placement of the vulnerable adult under s. 55.05 or a protective placement of the vulnerable adult under s. 55.06 ch. 55 if all of the following occur:

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 187 Section 187. 813.123 (5) (a) 3. b. of the statutes is amended to read:

AB785,135,16 813.123 (5) (a) 3. b. That the respondent has interfered with the delivery to the vulnerable adult of protective services under s. 55.05 to or a protective placement of the vulnerable adult under s. 55.06 ch. 55 after the offer of services or placement has been made and the vulnerable adult or his or her guardian, if any, has consented to receipt of the protective services or placement.

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 188 Section 188. 813.123 (6) (c) of the statutes is amended to read:

AB785,135,21 813.123 (6) (c) That the respondent interfered with , or, based on prior conduct of the respondent, may interfere with, an investigation of the vulnerable adult under s. 55.043, or the delivery of protective services to the vulnerable adult under s. 55.05 or a protective placement of the vulnerable adult under s. 55.06 ch. 55.

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 189 Section 189. 813.123 (7) of the statutes is amended to read:

AB785,136,8 813.123 (7) Interference order. Any order under this section directing a person to avoid interference with an investigation of a vulnerable adult under s. 55.043, or the delivery of protective services to a vulnerable adult under s. 55.05 or a protective placement of a vulnerable adult under s. 55.06 ch. 55 prohibits the person from intentionally preventing a representative or employee of the county protective services agency from meeting, communicating, or being in visual or audio contact with the vulnerable adult, except as provided in the order.

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 190 Section 190. 813.123 (11) of the statutes is amended to read:

AB785,136,16 813.123 (11) Applicability. This section does not apply to vulnerable adults who are patients or residents of state-operated or county-operated inpatient institutions unless the alleged interference with an investigation of the vulnerable adult under s. 55.043 or with the delivery to the vulnerable adult of protective services under s. 55.05 to or a protective placement of the vulnerable adult under s. 55.06 ch. 55 is alleged to have been done by a person other than an employee of the inpatient institution.

Note: Changes a cross-reference in current law regarding vulnerable adult restraining orders, to reflect renumbering and amending of ch. 55.

AB785, s. 191 Section 191. 851.72 (11) of the statutes is created to read:

AB785,136,20 851.72 (11) Annually submit to the chief judge of the judicial administrative district the statement required under s. 55.18 (5) regarding the completion of annual reviews of protective placement orders under s. 55.18 (1).

Note: Requires the register in probate of each county to submit a statement to the chief judge of the judicial administrative district indicating whether each report and petition for annual review of protective placement required to be filed by the county department that year has been filed.

AB785, s. 192 Section 192. 880.01 (2) of the statutes is amended to read:

AB785,137,10 880.01 (2) "Developmentally disabled person" means any individual having a disability attributable to mental retardation, cerebral palsy, epilepsy, autism or another neurological condition closely related to mental retardation or requiring treatment similar to that required for mentally retarded individuals, which has continued or can be expected to continue indefinitely, substantially impairs the individual from adequately providing for his or her own care or custody , and constitutes a substantial handicap to the afflicted individual. The term does not include a person affected by senility which is primarily caused by the process of aging or the infirmities of aging degenerative brain disorder.

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

AB785, s. 193 Section 193. 880.01 (4) of the statutes is amended to read:

AB785,137,16 880.01 (4) "Incompetent" means a person adjudged by a court of record to be substantially incapable of managing his or her property or caring for himself or herself by reason of infirmities of aging degenerative brain disorder, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

AB785, s. 194 Section 194. 880.01 (5) of the statutes is renumbered 880.01 (1t) and amended to read:

AB785,138,2 880.01 (1t) "Infirmities of aging Degenerative brain disorder" means organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted the loss or dysfunction of brain cells to the extent that an individual is substantially impaired in his or her ability to adequately provide adequately for his or her own care or custody.

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

AB785, s. 195 Section 195. 880.01 (7m) of the statutes is renumbered 55.14 (1) (b) and amended to read:

AB785,138,10 55.14 (1) (b) "Not competent to refuse psychotropic medication" means that, because of chronic mental illness, as defined in s. 51.01 (3g) as a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to an individual, one of the following is true:

AB785,138,13 1. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives to accepting treatment.

AB785,138,17 2. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her chronic mental illness condition in order to make an informed choice as to whether to accept or refuse psychotropic medication.

Note: Relocates a provision in ch. 880 that defines "not competent to refuse psychotropic medication" to the newly-created section of ch. 55 that establishes the procedure and requirements for a court order authorizing a guardian to consent to the involuntary administration of psychotropic medication to a ward. Also revises that definition to reflect terminology changes made elsewhere in the bill.

AB785, s. 196 Section 196. 880.01 (8m) of the statutes is created to read:

AB785,138,21 880.01 (8m) "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, s. 197 Section 197. 880.07 (1m) of the statutes is repealed.

Note: Repeals a provision describing the required contents of a petition alleging that a proposed ward is incompetent to refuse psychotropic medications to reflect that the bill creates a new procedure for these types of petitions in s. 55.14.

AB785, s. 198 Section 198. 880.07 (2m) of the statutes is created to read:

AB785,139,6 880.07 (2m) Whenever a petition for guardianship on the ground of incompetency is filed with respect to an individual who resides in a facility licensed for 16 or more beds, a petition for protective placement of the individual shall also be filed.

Note: Requires the filing of a protective placement petition whenever a petition for guardianship on the ground of incompetency is filed with respect to a person who resides in a facility licensed for 16 or more beds.

AB785, s. 199 Section 199. 880.08 (1) of the statutes is amended to read:

AB785,140,17 880.08 (1) Incompetents Proposed ward or ward. A petitioner shall have notice served of a petition for appointment or change of a guardian upon the a proposed incompetent ward or ward and existing guardian, if any, by personal service at least 10 days before the time set for hearing. If such the proposed incompetent ward or ward is in custody or confinement, a petitioner shall have notice served by registered or certified mail on the proposed incompetent's ward's or ward's custodian, who shall immediately serve it on the proposed incompetent ward or ward. The custodian shall inform the proposed incompetent ward or ward of the complete contents of the notice and, certify thereon on it that the custodian served and informed the proposed incompetent ward or ward, and returned return the certificate and notice to the circuit judge. The notice shall include the names of all persons who are petitioning for guardianship. A copy of the petition shall be attached to the notice. The court shall cause the proposed incompetent, if able to attend, to be produced ward or ward shall be present at the hearing. The proposed incompetent is presumed able to attend unless, after a personal interview, the guardian ad litem certifies in writing to the court the that the proposed ward or ward is unwilling to participate or unable to participate in a meaningful way or certifies other specific reasons why the person proposed ward or ward is unable to attend. If the person proposed ward or ward is unable to attend a hearing only because of physical inaccessibility or lack of transportation, the court shall hold the hearing in a place where the person may attend, if requested by the proposed ward or ward, guardian ad litem, adversary counsel for the proposed ward or ward, or other interested person. Such, hold the hearing in a place where the proposed ward or ward is able to attend. The notice shall also be given personally or by mail at least 10 days before the hearing to the proposed incompetent's ward's or ward's counsel, if any, guardian ad litem, presumptive adult heirs or other persons who have legal or physical custody of the proposed incompetent ward or ward whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private agency, charity or foundation from which the proposed incompetent ward or ward is receiving aid and to such other persons or entities as the court may require. The court shall then proceed under s. 880.33.

Note: Specifies that the court need not hold a hearing on appointment of a guardian for a person alleged to be incompetent in the presence of the person under certain circumstances. These provisions are identical to provisions inserted into ch. 55 by Section 160 of the bill.

AB785, s. 200 Section 200. 880.24 (3) (a) of the statutes is renumbered 880.24 (3), and 880.24 (3) (intro.), as renumbered, is amended to read:

AB785,141,2 880.24 (3) (intro.) Except as provided in par. (b), when When a guardian is appointed, the court shall award from the ward's estate payment of the petitioner's reasonable attorney fees and costs, including those fees and costs, if any, related to protective placement of the ward, unless the court finds, after considering all of the following, that it would be inequitable to do so:

AB785, s. 201 Section 201 . 880.24 (3) (b) of the statutes is renumbered 880.24 (3) (cm) and amended to read:

AB785,141,8 880.24 (3) (cm) If the court finds that Whether the ward 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 engaged in other advance planning to avoid guardianship , the court may not make the award specified in par. (a).

Note: Specifies that the court may consider whether the ward engaged in advance planning to avoid guardianship when deciding whether to award payment of the petitioner's attorney fees and costs from the ward's estate.

AB785, s. 202 Section 202 . 880.33 (1) of the statutes is amended to read:

AB785,141,23 880.33 (1) Whenever it is proposed to appoint a guardian on the ground of incompetency, a licensed physician or licensed psychologist, or both, shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination. The privilege under s. 905.04 shall not apply to this statement. A copy of the statement shall be provided to the proposed ward, guardian ad litem, and attorney. Prior to the examination, under this subsection, of a person alleged to be not competent to refuse psychotropic medication under s. 880.07 (1m), the person shall be informed that his or her statements may be used as a basis for a finding of incompetency and an order for protective services, including psychotropic medication. The person individual shall also be informed that he or she has a right to remain silent and that the examiner is required to report to the court even if the person individual remains silent. The issuance of such a warning to the person individual prior to each examination establishes a presumption that the person individual understands that he or she need not speak to the examiner.

AB785, s. 203 Section 203. 880.33 (2) (a) 1. of the statutes is amended to read:

AB785,142,20 880.33 (2) (a) 1. The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48 (1) and shall in addition require representation by full legal counsel whenever the petition contains the allegations under s. 880.07 (1m) or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney, or guardian ad litem, except that if the petition contains the allegations under s. 880.07 (1m) and if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be determined under s. 756.06 (2) (b). The proposed ward, attorney, or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

AB785, s. 204 Section 204 . 880.33 (2) (a) 2. of the statutes is amended to read:

AB785,143,2 880.33 (2) (a) 2. If the person proposed ward requests but is unable to obtain legal counsel, the court shall appoint legal counsel. If the person proposed ward is represented by counsel appointed under s. 977.08 in a proceeding for under a petition for protective placement brought under s. 55.06 or for the appointment of a guardian under s. 880.07 (1m) 55.075, the court shall order the counsel appointed under s. 977.08 to represent the person proposed ward.

Note: Sections 202 to 204 replace the term "person" with "individual" or "proposed ward" as appropriate.

AB785, s. 205 Section 205 . 880.33 (2) (d) of the statutes is repealed.

AB785, s. 206 Section 206 . 880.33 (2) (e) of the statutes is repealed.

Note: Sections 205 and 206 repeal provisions pertaining to a hearing on a petition alleging that a proposed ward is incompetent to refuse psychotropic medications, to reflect that the bill creates a new procedure for these types of petitions in s. 55.14.

AB785, s. 207 Section 207. 880.33 (2) (f) of the statutes is created to read: