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.
AB785, s. 217
4Section
217. 880.34 (6) of the statutes is repealed.
Note: Repeals provisions in current law pertaining to annual review of an order
authorizing a guardian to consent to forcible administration of psychotropic medications
to a ward under certain circumstances, to reflect that the bill creates a new annual review
procedure of that type of authorization in s. 55.19.
AB785, s. 218
5Section
218. 880.38 (1) of the statutes is amended to read:
AB785,146,176
880.38
(1) A guardian of the person of an incompetent, upon order of the court,
7may have custody of the
person ward, may receive all notices on behalf of the person
8ward, and may act in all proceedings as an advocate of the
person ward, but may not
9have the power to bind the ward or the ward's property, or to represent the ward in
10any legal proceedings pertaining to the property, unless the guardian of the person
11is also the guardian of the property. A guardian of the person of an incompetent or
12a temporary guardian of the person of an incompetent may not make a permanent
13protective placement of the ward unless ordered by a court under s.
55.06 55.12 but
14may admit a ward to certain residential facilities under s.
55.05 (5) 55.055 or make
15an emergency protective placement under s.
55.06 (11)
55.135. The guardian of the
16person
has the power to apply may petition for
protective placement under s.
55.06 1755.075 (1) and for commitment under s. 51.20 or 51.45 (13).
Note: Amends cross-references to reflect renumbering and amendment of ch. 55
in a provision of current law that sets forth the rights and duties of guardians.
AB785, s. 219
18Section
219. 880.38 (2) of the statutes is amended to read:
AB785,147,919
880.38
(2) A guardian of the person shall endeavor to secure necessary care,
20services
, or appropriate protective placement on behalf of the ward.
Subject to any
1limitation imposed by the court under s. 880.33 (8) (b), a guardian may consent,
2without further court involvement, to involuntary administration of medication,
3other than psychotropic medication, and involuntary medical treatment that is in
4the ward's best interest. A guardian may consent to involuntary administration of
5psychotropic medication only under a court order under s. 55.14 or s. 880.33 (4m) or
6(4r), 2003 stats. In determining whether medication, other than psychotropic
7medication, or medical treatment is in the ward's best interest, the guardian shall
8consider the invasiveness of the medication or treatment and the likely benefits and
9side effects of the medication or treatment.
Note: Authorizes a guardian to consent, without further court involvement, to
involuntary administration of medication, other than psychotropic medication, and
involuntary medical treatment that is in the ward's best interest. In determining
whether medication or medical treatment is in the ward's best interest, the guardian
shall consider the invasiveness of the medication or treatment and the likely benefits and
side effects of the medication or treatment. A guardian may not consent to involuntary
administration of psychotropic medication unless the guardian has been authorized to do
so under s. 55.14 (8).
AB785, s. 220
10Section
220. 880.38 (3) of the statutes is amended to read:
AB785,147,1911
880.38
(3) A guardian of the person of an incompetent appointed under s.
12880.33 shall make an annual report on the condition of the ward to the court that
13ordered the guardianship and to the county department designated under s. 55.02
14(2). That county department shall develop reporting requirements for the guardian
15of the person. The report shall include, but not be limited to, the location of the ward,
16the health condition of the ward, any recommendations regarding the ward
, and a
17statement of whether or not the ward is living in the least restrictive environment
18consistent with the needs of the ward.
The guardian may fulfill the requirement
19under this subsection by submitting the report required under s. 55.06 (10).
Note: Amends cross-references to reflect renumbering and amendment of ch. 55
in a provision of current law that requires a guardian to make an annual report on the
condition of the ward to the court and the county.
AB785, s. 221
1Section
221. 880.38 (4) of the statutes is created to read:
AB785,148,62
880.38
(4) (a) In this subsection, "protest" means make more than one
3discernible negative response, other than mere silence, to the offer of,
4recommendation for, or other proffering of voluntary receipt of psychotropic
5medication. "Protest" does not mean a discernible negative response to a proposed
6method of administration of the psychotropic medication.
AB785,148,117
(b) A guardian may, without court approval, give an informed consent to the
8voluntary receipt by the guardian's ward of medication, including any appropriate
9psychotropic medication, if the guardian has first made a good-faith attempt to
10discuss with the ward the voluntary receipt of the medication and if the ward does
11not protest.
Note: Creates a definition of "protest" and creates a provision under which a
guardian may provide informed consent to voluntary receipt of medication, including
psychotropic medication, by a ward.
AB785, s. 222
12Section
222. 940.285 (1) (a) of the statutes is renumbered 940.285 (1) (am).
AB785, s. 223
13Section
223. 940.285 (1) (b) of the statutes is renumbered 940.285 (1) (ag) and
14amended to read:
AB785,148,1615
940.285
(1) (ag) "
Infirmities of aging "
Degenerative brain disorder" has the
16meaning
specified in s. 55.01 (3) given in s. 55.01 (1v).
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder" and amends cross-references to reflect renumbering and amendment of ch. 55,
in the statute that establishes certain crimes related to the maltreatment of vulnerable
adults.
AB785, s. 224
17Section
224. 940.285 (1) (e) (intro.) of the statutes is amended to read:
AB785,148,2018
940.285
(1) (e) (intro.) "Vulnerable adult" means any person 18 years of age or
19older who either is a developmentally disabled person or has
infirmities of aging 20degenerative brain disorder, mental illness or other like incapacities and who is:
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder" and amends cross-references to reflect renumbering and amendment of ch. 55,
in the statute that establishes certain crimes related to the maltreatment of vulnerable
adults.
AB785, s. 225
1Section
225. 940.295 (1) (hm) of the statutes is renumbered 940.295 (1) (cg)
2and amended to read:
AB785,149,43
940.295
(1) (cg) "
Infirmities of aging Degenerative brain disorder" has the
4meaning given in s. 55.01
(3) (1v).
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder" and amends a cross-reference to reflect renumbering and amendment of ch. 55,
in the statute that establishes crimes related to the abuse and neglect of patients and
residents of certain facilities.
AB785, s. 226
5Section
226. 940.295 (1) (t) (intro.) of the statutes is amended to read:
AB785,149,86
940.295
(1) (t) (intro.) "Vulnerable person" means any person who either is a
7developmentally disabled person or has
infirmities of aging degenerative brain
8disorder, mental illness or other like incapacities and who is:
Note: Replaces the term "infirmities of aging" with the term "degenerative brain
disorder" in the statute that establishes crimes related to the abuse and neglect of
patients and residents of certain facilities.
AB785, s. 227
9Section
227. 971.14 (6) (b) of the statutes is amended to read:
AB785,150,710
971.14
(6) (b) When the court discharges a defendant from commitment under
11par. (a), it may order that the defendant be taken immediately into custody by a law
12enforcement official and promptly delivered to a facility specified in s. 51.15 (2), an
13approved public treatment facility under s. 51.45 (2) (c)
, or an appropriate medical
14or protective placement facility. Thereafter, detention of the defendant shall be
15governed by s. 51.15, 51.45 (11)
, or
55.06 (11) 55.135, as appropriate. The district
16attorney or corporation counsel may prepare a statement meeting the requirements
17of s. 51.15 (4) or (5), 51.45 (13) (a)
, or
55.06 (11) 55.135 based on the allegations of the
18criminal complaint and the evidence in the case. This statement shall be given to the
19director of the facility to which the defendant is delivered and filed with the branch
20of circuit court assigned to exercise criminal jurisdiction in the county in which the
1criminal charges are pending
, where it shall suffice, without corroboration by other
2petitioners, as a petition for commitment under s. 51.20
, or 51.45 (13) or
55.06 (2) a
3petition for protective placement under s. 55.075. This section does not restrict the
4power of the branch of circuit court in which the petition is filed to transfer the matter
5to the branch of circuit court assigned to exercise jurisdiction under ch. 51 in the
6county. Days spent in commitment or protective placement pursuant to a petition
7under this paragraph shall not be deemed days spent in custody under s. 973.155.
Note: Amends cross-references to reflect renumbering and amendment of ch. 55
in a provision of current law pertaining to detention of a criminal defendant found to be
incompetent.
AB785, s. 228
8Section
228. 977.05 (4) (i) 8. of the statutes is created to read:
AB785,150,109
977.05
(4) (i) 8. Cases involving individuals who are subject to petitions for
10protective placement under ch. 55.
Note: Requires the state public defender to provide legal services in cases
involving individuals who are subject to petitions for protective placement.
AB785,150,1812
(1)
Review of order; involuntary administration of psychotropic medication. 13For an individual who is subject to an order appointing a guardian under section
14880.33 (4m), 2003 stats., and to an order initially issued under section 880.33 (4r),
152003 stats., that is in effect on the effective date of this subsection, the county
16department of the individual's county of residence shall, no later than 9 months after
17the effective date of this subsection, review the individual's status under the
18requirements of section 55.19 of the statutes, as created by this act.
AB785,151,219
(2)
Transition; involuntary administration of psychotropic medication. 20Notwithstanding the treatment of sections 55.05 (2) (d) and 880.33 (4m) and (4r) of
21the statutes by this act, all orders issued under sections 55.05 (2) (d), 2003 stats., and
22880.33 (4m) and (4r), 2003 stats., in effect on the effective date of this subsection,
1remain in effect until modified or terminated by a court order under section 55.16,
255.17, or 55.19 of the statutes, as created by this act.
AB785,151,93
(3)
Transition; orders for protective placement and protective services. 4Notwithstanding the treatment of sections 55.05 and 55.06 of the statutes by this act,
5all orders issued under section 55.05 (2) (d), 2003 stats., or section 55.06 (9) (a) or (11)
6(c), 2003 stats., in effect on the effective date of this subsection, remain in effect until
7modified or terminated by a court order under section 55.16, 55.17, 55.18, or 55.19
8of the statutes, as created by this act or section 55.175 or 55.20 of the statutes, as
9affected by this act.
AB785,151,1410
(4)
Rules; involuntary administration of psychotropic medication. The
11department of health and family services shall submit in proposed form the rules
12required under section 50.02 (2) (ad) of the statutes, as created by this act, to the
13legislative council staff under section 227.15 (1) of the statutes no later than the first
14day of the 6th month beginning after the effective date of this subsection.
AB785,151,2416
(1)
Emergency protective services or emergency and temporary protective
17placement. The treatment of sections 46.011 (2), 46.10 (2), 46.279 (4) (e) and (5),
1849.001 (5m), 49.45 (30m) (b), 51.15 (5), 51.39, 51.40 (2) (a) 2., 51.42 (1) (b) and (3) (ar)
194. d., 51.437 (4) (c), 55.02 (2) (b) 4., 55.043 (4) (b), 55.05 (3), (4) (title), (a), (b), and (c),
20and (5) (c) 2. and 3., 55.06 (1) (intro.) and (d), (11) (a), (am), (ar), (b), (c), and (d), and
21(12), 55.13 (2) and (3), 55.135 (title), 165.85 (4) (b) 1d. b., 165.86 (2) (b), 301.01 (2)
22(intro.), 757.69 (1) (h), 880.38 (1), and 971.14 (6) (b) of the statutes first applies to
23emergency protective services provided and emergency and temporary protective
24placements made on the effective date of this subsection.