Note: Changes a cross-reference in current law regarding vulnerable adult
restraining orders, to reflect renumbering and amending of ch. 55.
AB785, s. 186
3Section
186. 813.123 (5) (a) (intro.) of the statutes is amended to read:
AB785,135,104
813.123
(5) (a) (intro.) Unless the vulnerable adult, guardian or guardian ad
5litem consents to that contact in writing and the judge agrees that the contact is in
6the best interests of the vulnerable adult, a judge may grant an injunction ordering
7the respondent to avoid interference with an investigation of the vulnerable adult
8under s. 55.043
, or the delivery of protective services to
or a protective placement of 9the vulnerable adult under
s. 55.05 or a protective placement of the vulnerable adult
10under 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
11Section
187. 813.123 (5) (a) 3. b. of the statutes is amended to read:
AB785,135,1612
813.123
(5) (a) 3. b. That the respondent has interfered with the delivery
to the
13vulnerable adult of protective services
under s. 55.05 to or a protective placement of
14the vulnerable adult under
s. 55.06 ch. 55 after the offer of services or placement has
15been made and the vulnerable adult or his or her guardian, if any, has consented to
16receipt 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
17Section
188. 813.123 (6) (c) of the statutes is amended to read:
AB785,135,2118
813.123
(6) (c) That the respondent interfered with
, or
, based on prior conduct
19of the respondent
, may interfere with
, an investigation of the vulnerable adult under
20s. 55.043
, or the delivery of protective services to
the vulnerable adult under s. 55.05 21or 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
1Section
189. 813.123 (7) of the statutes is amended to read:
AB785,136,82
813.123
(7) Interference order. Any order under this section directing a
3person to avoid interference with an investigation of a vulnerable adult under s.
455.043
, or the delivery of protective services to
a vulnerable adult under s. 55.05 or
5a protective placement of a vulnerable adult under
s. 55.06 ch. 55 prohibits the
6person from intentionally preventing a representative or employee of the county
7protective services agency from meeting, communicating
, or being in visual or audio
8contact 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
9Section
190. 813.123 (11) of the statutes is amended to read:
AB785,136,1610
813.123
(11) Applicability. This section does not apply to vulnerable adults
11who are patients or residents of state-operated or county-operated inpatient
12institutions unless the alleged interference with an investigation of the vulnerable
13adult under s. 55.043 or with the delivery
to the vulnerable adult of protective
14services
under s. 55.05 to or a protective placement of the vulnerable adult under
s.
1555.06 ch. 55 is alleged to have been done by a person other than an employee of the
16inpatient 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
17Section
191. 851.72 (11) of the statutes is created to read:
AB785,136,2018
851.72
(11) Annually submit to the chief judge of the judicial administrative
19district the statement required under s. 55.18 (5) regarding the completion of annual
20reviews 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
1Section
192. 880.01 (2) of the statutes is amended to read:
AB785,137,102
880.01
(2) "Developmentally disabled person" means any individual having a
3disability attributable to mental retardation, cerebral palsy, epilepsy, autism or
4another neurological condition closely related to mental retardation or requiring
5treatment similar to that required for mentally retarded individuals, which has
6continued or can be expected to continue indefinitely, substantially impairs the
7individual from adequately providing for his or her own care or custody
, and
8constitutes a substantial handicap to the afflicted individual. The term does not
9include a person affected by senility which is primarily caused by the process of aging
10or
the infirmities of aging degenerative brain disorder.
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder."
AB785, s. 193
11Section
193. 880.01 (4) of the statutes is amended to read:
AB785,137,1612
880.01
(4) "Incompetent" means a person adjudged by a court of record to be
13substantially incapable of managing his or her property or caring for himself or
14herself by reason of
infirmities of aging degenerative brain disorder, developmental
15disabilities, or other like incapacities. Physical disability without mental incapacity
16is not sufficient to establish incompetence.
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder."
AB785, s. 194
17Section
194. 880.01 (5) of the statutes is renumbered 880.01 (1t) and amended
18to read:
AB785,138,219
880.01
(1t) "
Infirmities of aging
Degenerative brain disorder" means
organic
20brain damage caused by advanced age or other physical degeneration in connection
21therewith to the extent that the person so afflicted the loss or dysfunction of brain
1cells to the extent that an individual is substantially impaired in his or her ability
2to
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
3Section
195. 880.01 (7m) of the statutes is renumbered 55.14 (1) (b) and
4amended to read:
AB785,138,105
55.14
(1) (b) "Not competent to refuse psychotropic medication" means that,
6because of chronic mental illness, as defined in s. 51.01 (3g) as a result of
7developmental disabilities, degenerative brain disorder, serious and persistent
8mental illness, or other like incapacities, and after the advantages and
9disadvantages of and alternatives to accepting the particular psychotropic
10medication have been explained to an individual, one of the following is true:
AB785,138,1311
1. The individual is incapable of expressing an understanding of the
12advantages and disadvantages of accepting treatment and the alternatives
to
13accepting treatment.
AB785,138,1714
2. The individual is substantially incapable of applying an understanding of
15the advantages, disadvantages and alternatives to his or her
chronic mental illness 16condition in order to make an informed choice as to whether to accept or refuse
17psychotropic 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
18Section
196. 880.01 (8m) of the statutes is created to read:
AB785,138,2119
880.01
(8m) "Psychotropic medication" means a prescription drug, as defined
20in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging
21behavior.
AB785, s. 197
1Section
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
2Section
198. 880.07 (2m) of the statutes is created to read:
AB785,139,63
880.07
(2m) Whenever a petition for guardianship on the ground of
4incompetency is filed with respect to an individual who resides in a facility licensed
5for 16 or more beds, a petition for protective placement of the individual shall also
6be 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
7Section
199. 880.08 (1) of the statutes is amended to read:
AB785,140,178
880.08
(1) Incompetents
Proposed ward or ward. A petitioner shall have
9notice served of a petition for appointment or change of a guardian upon
the a
10proposed
incompetent ward or ward and existing guardian, if any, by personal
11service at least 10 days before the time set for hearing. If
such the proposed
12incompetent ward or ward is in custody or confinement, a petitioner shall have notice
13served by registered or certified mail on the proposed
incompetent's ward's or ward's
14custodian, who shall immediately serve it on the proposed
incompetent ward or
15ward. The custodian shall inform the proposed
incompetent ward or ward of the
16complete contents of the notice
and, certify
thereon on it that the custodian served
17and informed the proposed
incompetent ward or ward, and
returned return the
18certificate and notice to the circuit judge. The notice shall include the names of all
19persons who are petitioning for guardianship. A copy of the petition shall be attached
20to the notice. The
court shall cause the proposed
incompetent, if able to attend, to
21be produced ward or ward shall be present at the hearing
. The proposed incompetent
1is presumed able to attend unless, after a personal interview, the guardian ad litem
2certifies in writing to the court
the that the proposed ward or ward is unwilling to
3participate or unable to participate in a meaningful way or certifies other specific
4reasons why the
person proposed ward or ward is unable to attend. If the
person 5proposed ward or ward is unable to attend a hearing
only because of physical
6inaccessibility or lack of transportation, the court shall
hold the hearing in a place
7where the person may attend, if requested by the proposed ward
or ward, guardian
8ad litem,
adversary counsel
for the proposed ward or ward, or other interested
9person
. Such, hold the hearing in a place where the proposed ward or ward is able
10to attend. The notice shall also be given personally or by mail at least 10 days before
11the hearing to the proposed
incompetent's ward's or ward's counsel, if any, guardian
12ad litem, presumptive adult heirs or other persons who have legal or physical custody
13of the proposed
incompetent ward or ward whose names and addresses are known
14to the petitioner or can with reasonable diligence be ascertained, to any
15governmental or private agency, charity or foundation from which the proposed
16incompetent ward or ward is receiving aid and to such other persons or entities as
17the 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
18Section
200. 880.24 (3) (a) of the statutes is renumbered 880.24 (3), and 880.24
19(3) (intro.), as renumbered, is amended to read:
AB785,141,220
880.24
(3) (intro.)
Except as provided in par. (b), when When a guardian is
21appointed, the court shall award from the ward's estate payment of the petitioner's
22reasonable attorney fees and costs
, including those fees and costs, if any, related to
1protective placement of the ward, unless the court finds, after considering all of the
2following, that it would be inequitable to do so:
AB785, s. 201
3Section
201
. 880.24 (3) (b) of the statutes is renumbered 880.24 (3) (cm) and
4amended to read:
AB785,141,85
880.24
(3) (cm)
If the court finds that Whether the ward had executed a durable
6power of attorney under s. 243.07 or a power of attorney for health care under s.
7155.05 or had engaged in other advance planning to avoid guardianship
, the court
8may 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
9Section
202
. 880.33 (1) of the statutes is amended to read:
AB785,141,2310
880.33
(1) Whenever it is proposed to appoint a guardian on the ground of
11incompetency, a licensed physician or licensed psychologist, or both, shall furnish a
12written statement concerning the mental condition of the proposed ward, based upon
13examination. The privilege under s. 905.04 shall not apply to this statement. A copy
14of the statement shall be provided to the proposed ward, guardian ad litem
, and
15attorney.
Prior to the examination, under this subsection, of a person alleged to be
16not competent to refuse psychotropic medication under s. 880.07 (1m), the person
17shall be informed that his or her statements may be used as a basis for a finding of
18incompetency and an order for protective services, including psychotropic
19medication. The
person individual shall also be informed that he or she has a right
20to remain silent and that the examiner is required to report to the court even if the
21person individual remains silent. The issuance of such a warning to the
person 22individual prior to each examination establishes a presumption that the
person 23individual understands that he or she need not speak to the examiner.
AB785, s. 203
1Section
203. 880.33 (2) (a) 1. of the statutes is amended to read:
AB785,142,202
880.33
(2) (a) 1. The proposed ward has the right to counsel whether or not
3present at the hearing on determination of competency. The court shall in all cases
4require the appointment of an attorney as guardian ad litem in accordance with s.
5757.48 (1) and shall in addition require representation by full legal counsel
whenever
6the petition contains the allegations under s. 880.07 (1m) or if, at least 72 hours
7before the hearing, the alleged incompetent requests; the guardian ad litem or any
8other person states that the alleged incompetent is opposed to the guardianship
9petition; or the court determines that the interests of justice require it. The proposed
10ward has the right to a trial by a jury if demanded by the proposed ward, attorney
, 11or guardian ad litem
, except that if the petition contains the allegations under s.
12880.07 (1m) and if notice of the time set for the hearing has previously been provided
13to the proposed ward and his or her counsel, a jury trial is deemed waived unless
14demanded at least 48 hours prior to the time set for the hearing. The number of
15jurors shall be determined under s. 756.06 (2) (b). The proposed ward, attorney
, or
16guardian ad litem shall have the right to present and cross-examine witnesses,
17including the physician or psychologist reporting to the court under sub. (1). The
18attorney or guardian ad litem for the proposed ward shall be provided with a copy
19of the report of the physician or psychologist at least 96 hours in advance of the
20hearing. Any final decision of the court is subject to the right of appeal.
AB785, s. 204
21Section
204
. 880.33 (2) (a) 2. of the statutes is amended to read:
AB785,143,222
880.33
(2) (a) 2. If the
person proposed ward requests but is unable to obtain
23legal counsel, the court shall appoint legal counsel. If the
person proposed ward is
24represented by counsel appointed under s. 977.08 in a proceeding
for under a
petition
25for protective placement
brought under s.
55.06 or for the appointment of a guardian
1under s. 880.07 (1m) 55.075, the court shall order the counsel appointed under s.
2977.08 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
3Section
205
. 880.33 (2) (d) of the statutes is repealed.
AB785, s. 206
4Section
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
5Section
207. 880.33 (2) (f) of the statutes is created to read:
AB785,143,76
880.33
(2) (f) An interested person may participate in the hearing on the
7petition at the court's discretion.
Note: This provision is taken from the decision of the Wisconsin Court of Appeals
in Coston v. Joseph P., 222 Wis. 2d 1, 586 N.W.2d 52 (Ct. App. 1998).
AB785, s. 208
8Section
208. 880.33 (3) of the statutes is amended to read:
AB785,144,49
880.33
(3) In a finding of limited incompetency, guardianship of the person
10shall be limited in accordance with the order of the court accompanying the finding
11of incompetence. If the proposed incompetent has executed a power of attorney for
12health care under ch. 155, the court shall give consideration to the appointment of
13the health care agent for the individual as the individual's guardian. The court shall
14make a specific finding as to which legal rights the
person individual is competent
15to exercise. Such rights include but are not limited to the right to vote, to marry, to
16obtain a motor vehicle operator's license or other state license, to hold or convey
17property
, and the right to contract. The findings of incompetence must be based upon
18clear and convincing evidence. The court shall determine if additional medical or
19psychological testimony is necessary for the court to make an informed decision
20respecting competency to exercise legal rights and may obtain assistance in the
21manner provided in s.
55.06 (8) 55.11 whether or not protective placement is made.
1The guardian, ward
, or any interested person may at any time file a petition with the
2court requesting a restoration of any such legal right, and specifying the reasons
3therefor.
Such The petition may request that a guardianship of the person be
4terminated and a guardianship of property be established.
Note: Replaces the term "person" with individual and amends a cross-reference
to reflect renumbering if ch. 55 in the bill.
AB785, s. 209
5Section
209. 880.33 (4m) of the statutes is repealed.
Note: Repeals a provision in ch. 880 authorizing a court to appoint a guardian to
consent to or refuse psychotropic medications on behalf of a ward to reflect that the bill
creates a new procedure in s. 55.14 authorizing a guardian to make these decisions.
AB785, s. 210
6Section
210. 880.33 (4r) of the statutes is repealed.
Note: Repeals a provision in ch. 880 under which a court may authorize a guardian
to consent to forcible administration of psychotropic medications to a ward under certain
circumstances, to reflect that the bill creates a new procedure in s. 55.14 for a court to
provide this authorization.
AB785, s. 211
7Section
211. 880.33 (6) of the statutes is amended to read:
AB785,144,118
880.33
(6) All court records pertinent to the finding of incompetency are closed
9but subject to access as provided in s.
55.06 (17)
55.22. The fact that
a person an
10individual has been found incompetent is accessible to any person who demonstrates
11to the custodian of the records a need for that information.
Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55
in a provision of current law pertaining to guardianship.
AB785, s. 212
12Section
212. 880.33 (7) of the statutes is amended to read:
AB785,144,1513
880.33
(7) A finding of incompetency and appointment of a guardian under this
14subchapter is not grounds for involuntary protective placement.
Such placement A
15protective placement may be made only in accordance with
s. 55.06 ch. 55.
Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55
in a provision of current law pertaining to guardianship.
AB785, s. 213
16Section
213. 880.331 (1) of the statutes is amended to read:
AB785,145,417
880.331
(1) Appointment. The court shall appoint a guardian ad litem
18whenever it is proposed that the court appoint a guardian on the ground of
1incompetency under s. 880.33,
protectively place a person provide protective
2placement to an individual or order protective services under
s. 55.06 ch. 55, review
3any protective placement or protective service order under s.
55.06 55.18, or
4terminate a protective placement under s.
55.06 55.17.
Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55
in a provision in current law that requires the court to appoint a guardian ad litem in
incompetency cases.
AB785, s. 214
5Section
214. 880.331 (4) (am) and (ar) of the statutes are created to read:
AB785,145,76
880.331
(4) (am) Interview the proposed guardian and any other person
7seeking appointment as guardian.
AB785,145,98
(ar) Make a recommendation to the court regarding the fitness of the proposed
9guardian.
Note: Adds two items to the list of duties of a guardian ad litem in incompetency
cases: the duty to interview the proposed guardian and any other person seeking
appointment as a guardian and the duty to make a recommendation to the court
regarding the fitness of the proposed guardian.
AB785, s. 215
10Section
215. 880.331 (4) (dm), (dr) and (ds) of the statutes are created to read:
AB785,145,1211
880.331
(4) (dm) Inform the court and the petitioner or petitioner's counsel, if
12any, if the proposed ward requests representation by counsel.
AB785,145,1313
(dr) Attend all court proceedings related to the guardianship.
AB785,145,1714
(ds) Notify the guardian of the right to be present at and participate in the
15hearing, to present and cross-examine witnesses, to receive a copy of any evaluation
16under s. 55.11 (1) (intro.) or (2), and to secure and present a report on an independent
17evaluation under s. 880.33 (2) (b).
Note: Adds three items to the list of duties of a guardian ad litem in incompetency
cases: the duty to inform the court and the petitioner or his or her counsel if the proposed
ward requests representation by counsel; the duty to attend all court proceedings relating
to the guardianship; and the duty to notify the guardian of certain rights of the guardian.
AB785, s. 216
18Section
216. 880.331 (5) (intro.) of the statutes is amended to read:
AB785,146,3
1880.331
(5) Duties in protective services reviews. (intro.) In any review of
2a
protective placement under s. 55.06 or of a protective
service services order
made 3under s.
55.05 55.12, the guardian ad litem shall do all of the following:
Note: Amends cross-references to reflect renumbering and amendment of ch. 55
in a provision in current law that sets forth the duties of a guardian ad litem in
incompetency cases.