The bill codifies the decision of the Wisconsin Supreme Court in Agnes T. v.
Milwaukee County, 189 Wis. 2d 520, 525 N.W.2d 268 (1995). In that case, the court stated
that a guardian may not consent to the continued residence of a person in a nursing home
licensed for 16 or more beds without a protective placement order and that upon
appointing a guardian for an incompetent person in a nursing home licensed for 16 or
more beds, the court must hold a protective placement hearing. The court specified that,
when making a placement determination for such a person, a court may consider whether
moving the person would create a serious risk of harm to that person.
This bill codifies the Agnes T. decision as follows:
1. Requiring, in newly created s. 880.07 (2m), that whenever a petition for
guardianship on the ground of incompetency is filed with respect to a person residing in
a facility licensed for 16 or more beds, a petition for protective placement of the person
must also be filed.
2. Specifying that the person may continue to reside in the facility until the court
issues a decision on the petition for protective placement of the person.
3. Authorizing a court, when protectively placing a person residing in a facility
licensed for 16 or more beds, to consider whether moving the person would create a
serious risk of harm to that person.
Fees and Costs of Petition Under Ch. 55
Chapter 55 does not currently specify who is responsible for the attorney fees and
costs of a person who files a petition for protective services or placement under s. 55.06
(2). However, s. 880.24 (3) specifies that under certain circumstances, the court must
award payment of reasonable attorney fees and costs to a person who petitions for
appointment of a guardian and protective placement of the ward if a guardian is
appointed.
The bill adds to ch. 55 similar provisions requiring the court to award payment of
reasonable attorney fees and costs to a person who petitions for protective services or
placement. These provisions apply when a petition for protective placement or services
is brought independently of or at the same time as a petition for guardianship.
The bill creates a new provision which specifies that the court must award, from
the estate of the person sought to be placed, the reasonable attorney fees and costs of a
person who petitions for protective placement of the person unless the court finds it would
be inequitable to do so. In determining whether it would be inequitable to award payment
of costs and fees, the court must consider all of the following:
1. The petitioner's interest in the matter, including any conflict of interest that the
petitioner may have had in pursuing the guardianship or protective placement.
2. The ability of the ward's estate to pay the petitioner's reasonable attorney fees
and costs.
3. Whether the petition was contested and, if so, the nature of the contest.
4. Whether the person sought to be protectively placed had executed a durable
power of attorney under s. 243.07 or a power of attorney for health care under s. 155.05
or had provided advance consent to nursing home placement or engaged in other advance
planning to avoid protective placement.
5. Any other factors that the court considers to be relevant.
With respect to guardianships under ch. 880, current law provides that if the court
finds that a ward had executed a durable power of attorney or a power of attorney for
health care or engaged in other advance planning to avoid guardianship, the court may
not award payment of the petitioner's attorney fees and costs from the ward's estate. The
bill provides, instead, that the court may consider these items as factors in determining
whether to award the payment.
Time Limit for Protective Placement Hearing
The bill specifies that a court must hold a hearing on any petition for protective
placement within 60 days after it is filed. The bill provides that the court may extend the
date for the hearing by up to 45 days if an extension of time is requested by the petitioner,
individual sought to be placed or his or her guardian ad litem, or the county department.
Attendance at Hearing of Person Sought to be Protected
Under current s. 55.06 (5), a person sought to be protectively placed is presumed
able to attend the hearing on protective placement unless, after a personal interview, the
guardian ad litem certifies to the court that the person is unable to attend. Chapter 55
does not require the court to hold the hearing in the presence of the person sought to be
placed if that person is unable to attend the hearing, as is required in ch. 880 for hearings
on guardianship.
The bill deletes language stating that the person sought to be protectively placed
is presumed to be able to attend the hearing. The bill provides that the person sought to
be protected shall be present at the hearing unless, after a personal interview, the
guardian ad litem certifies in writing to the court specific reasons why the person is
unable to attend or certifies in writing that the person is unwilling to participate or is
unable to participate in a meaningful way. The bill also provides that, if the person is
unable to attend a hearing because of physical inaccessibility or lack of transportation,
the court must hold the hearing in a place where the person may attend, if requested by
the person sought to be placed, guardian ad litem, or adversary counsel. This provision
is similar to provisions which currently exist in ch. 880, relating to appointment of a
guardian for a person alleged to be incompetent. The bill specifies, however, that the
court is not required to hold the hearing in the presence of the person sought to be placed
if the guardian ad litem, after a personal interview with the person, certifies in writing
to the court that the person is unwilling to participate or unable to participate in a
meaningful way.
The bill also amends s. 880.08 (1) relating to the appointment of a guardian in the
same way.
Procedural Rights in Ch. 55 Proceedings
Currently, s. 55.06 (6) requires the appointment of a guardian ad litem for a person
sought to be protectively placed and states that s. 880.33 (2), which sets forth certain
procedural rights and the right to counsel in a guardianship hearing, applies to all
hearings under ch. 55 except hearings regarding certain transfers of placement. This bill
deletes that cross-reference and instead inserts the language to which it refers to into
appropriate sections of ch. 55. The bill makes minor changes to that language necessary
to reflect that the rights apply to ch. 55 proceedings rather than guardianship hearings.
The bill also replaces the term "county of legal settlement" with the term "county in which
the hearing is held", as recommended by the committee.
The provisions in current s. 880.33 (2) that are inserted into ch. 55 by the bill are
the following:
1. The right to counsel.
2. The right to a jury trial.
3. The right of the person sought to be placed, his or her attorney and guardian ad
litem to present and cross-examine witnesses.
4. The right to a copy of any medical, psychological, social, vocational, or
educational evaluation of the person sought to be placed.
5. Provisions requiring the county in which the hearing is held to pay guardian ad
litem and attorney fees of the person sought to be placed if the person is indigent.
6. The right of the person sought to be protected to request that the hearing be
closed.
The bill retains the requirements in current s. 55.06 (6), relating to the
appointment of a guardian ad litem for a person sought to be placed.
Right to an Independent Evaluation in Ch. 55 Proceedings
Under current law, s. 880.33 (2) (b) provides that the individual who is the subject
of a guardianship petition, or anyone on the individual's behalf, has the right, at the
individual's own expense, or if indigent at the expense of the county where the petition
is filed, to secure an independent medical or psychological examination relevant to the
issue involved at the hearing on the petition, and to present a report of this independent
evaluation or the evaluator's personal testimony as evidence at the hearing.
This bill provides the same right to an independent evaluation to an individual who
is the subject of a protective placement proceeding, if such an evaluation has not already
been made.
Duties of Guardian ad Litem in Ch. 55 Proceedings
Under current law, protective placement hearings are held as provided under s.
55.06. Under s. 55.06 (5), notice of a petition for protective placement must be served on
the individual who is the subject of the petition, as well as several other persons, including
the guardian, if one has been appointed. Current law also requires a guardian to be
provided a copy of the comprehensive evaluation of the individual who is the subject of
the protective placement petition. However, current law does not specify that the
guardian must be provided notice of the protective placement hearing. Also, current law
does not specify the guardian's rights to participation at the hearing on protective
placement.
Current law, under s. 880.331, specifies duties of a guardian ad litem in
guardianship proceedings.
This bill specifies that the duties of a guardian ad litem in a guardianship
proceeding in s. 880.331 also apply to a guardian ad litem in a protective placement
proceeding. This bill also creates additional duties of a guardian ad litem in guardianship
and protective placement proceedings. The new duties are: to interview the proposed
guardian; to make a recommendation to the court regarding the fitness of the proposed
guardian; to interview the guardian, if one has already been appointed, of a subject of a
petition for protective placement or court-ordered protective services; to inform the court
and the petitioner or the petitioner's counsel, if any, if the proposed ward requests
representation by counsel; to attend all court proceedings related to the guardianship;
and to notify any guardian of an individual who is the subject of a protective placement
proceeding about the hearing on the petition, as well as the right to be present at the
hearing, the right to present and cross-examine witnesses, and the right to receive a copy
of the evaluations.
Role of Power of Attorney for Health Care in Ch. 55 Proceedings
Under current law, in an incompetency proceeding, if the proposed incompetent
has executed a power of attorney for health care under ch. 155, the court must make a
finding as to whether the power of attorney for health care instrument should remain in
effect. If the court so finds, the court shall so order and shall limit the power of the
guardian to make those health care decisions for the ward that are to be made by the
health care agent under the terms of the power of attorney for health care instrument,
unless the guardian is the health care agent under those terms.
Currently, when reference is made to a guardian in ch. 55, no reference is made to
a power of attorney for health care, where a court, in an incompetency proceeding, has
found that the power of attorney should remain in effect for certain health care decisions.
This bill clarifies the role of the power of attorney for health care in ch. 55
proceedings. It provides that, if a court has made a determination under s. 880.33 (8) (b)
that a power of attorney for health care under ch. 155 should remain in effect, and the
court limits the power of the guardian to make health care decisions, the provisions of ch.
55 that confer upon the guardian the rights to notice and participation, and the authority
to act, in a proceeding under ch. 55 shall also apply to the health care agent.
Rights of "Interested Persons" in Ch. 55 Proceedings
Under current law, under s. 55.01 (4), an "interested person" is defined as "any
adult relative or friend of a person to be protected under this subchapter; or any official
or representative of a public or private agency, corporation or association concerned with
the person's welfare".
An interested person is given the opportunity, in guardianship and protective
placement proceedings, to participate in many ways, including: requesting a different
location for the hearing if the proposed ward is unable to attend due to physical
inaccessibility or lack of transportation; complaining to the court if they suspect
fraudulent activity by the guardian; and requesting an independent medical or
psychological examination of the proposed ward.
This bill codifies the Wisconsin Court of Appeals' decision in Coston v. Joseph P.,
586 N.W.2d 52 (Ct. App. 1998), by providing that an interested person may participate
in the hearing on the guardianship and protective placement petition at the court's
discretion. In that case, 2 interested persons, who were relatives of the subject of the
petition, asserted that they had a right to participate in the hearing. The court disagreed,
saying that the rights of interested persons to participate in guardianship and protective
placement hearings are specific and limited. However, the court also stated that a circuit
court is not foreclosed from allowing for the participation of interested persons, if the
court decides to exercise its discretion to allow interested persons to participate to the
extent it deems appropriate.
Procedures for Protective Services Order
Current law provides that the court may order protective services for an individual
for whom a determination of incompetency is made if the individual entitled to the
protective services will otherwise incur a substantial risk of physical harm or
deterioration or will present a substantial risk of physical harm to others. However, no
procedures are specified in statute for obtaining a court order for protective services.
This bill includes court-ordered protective services under the revised procedural
provisions for protective placement.
Procedures for Emergency Protective Services
Under current law, s. 55.05 (4) provides that emergency protective services may be
provided for not more than 72 hours when there is reason to believe that if the services
are not provided, the person entitled to the services or others will incur a substantial risk
of serious physical harm. No procedures are specified in the statute for obtaining a court
order for emergency protective services.
This bill establishes procedures for obtaining emergency protective services.
Under the bill, if the provider of the emergency protective services has reason to believe
that protective services must continue to be provided beyond the 72-hour period, a
petition for court-ordered protective services may be filed. If a petition is filed, a
preliminary hearing must be held within 72 hours, excluding Saturdays, Sundays, and
holidays, to establish probable cause to believe that the grounds for court-ordered
protective services are present. If probable cause is found, the court may order protective
services for up to 60 days, pending a hearing on the petition for court-ordered protective
services.
Emergency Protective Placements
This bill makes several changes to the law governing emergency protective
placements.
Current law provides that a sheriff, police officer, fire fighter, guardian, or
authorized representative of a county board or an agency designated by a county board
may make an emergency protective placement of an individual if, based on their personal
observation, it appears probable that the individual meets the criteria for emergency
placement. The bill provides that emergency placement may be made by the persons
listed above based on a reliable report made to them as well as based on their personal
observation.
Current law provides that an individual may be protectively placed on an
emergency basis if it appears probable that the individual will suffer irreparable injury
or death or will present a substantial risk of serious physical harm to others as a result
of developmental disabilities, infirmities of aging, chronic mental illness, or other like
incapacities. The bill amends this language to provide that an individual described above
may be protectively placed on an emergency basis if it appears probable that the
individual is so totally incapable of providing for his or her own care or custody as to create
a substantial risk of serious physical harm to himself or herself or others as a result of
developmental disabilities, degenerative brain disorder, serious and persistent mental
illness, or other like incapacities if not immediately placed. This new language is the
same as current s. 55.06 (2) (c), which sets forth one of the standards which must be met
for protective placement on a non-emergency basis.
Current law provides that a person may be protectively placed on an emergency
basis in an appropriate medical or protective placement facility.
The bill requires each county department to designate at least one appropriate
medical facility or protective placement facility as an intake facility for the purpose of
emergency protective placements.
Voluntary Administration of Medication, Including Psychotropic Medication, to an
Incompetent Person
Under current laws relating to guardianship, a petition for guardianship of a
person who is alleged to be incompetent may further allege that the person is not
competent to refuse psychotropic medication and that the psychotropic medication is,
under several criteria, necessary. If the petition contains these allegations, and if, at
hearing, the court finds that the person is not competent to refuse psychotropic
medication and that the medication is necessary, the court must appoint a guardian to
consent to or refuse the medication on behalf of the person and order development of a
treatment plan, including psychotropic medication, for the person. If the person
substantially fails to comply with the treatment plan and if certain conditions are met,
the court may authorize the person's guardian to consent to the forcible administration
of psychotropic medication to the person.
This bill defines "psychotropic medication" and authorizes the guardian of a
nonprotesting ward with whom the guardian has discussed the receipt of medication,
including psychotropic medication, to give an informed consent to the voluntary receipt
by the ward of the medication, without the necessity of court procedures for approval.
Involuntary Administration of Psychotropic Medication
This bill provides that a guardian may be authorized to consent to involuntary
administration of psychotropic medication to a ward and involuntary administration of
psychotropic medication as a protective service if certain requirements are met. The bill
also specifies that psychotropic medication may not be involuntarily administered to a
person who has been protectively placed except by the procedure created in the bill.
In the bill, "psychotropic medication" is defined as a prescription drug that is used
to treat or manage a psychiatric symptom or challenging behavior. "Involuntary
administration of psychotropic medication" is defined to include all of the following:
placing psychotropic medication in a person's food or drink with knowledge that the
person protests receipt of the psychotropic medication; forcibly restraining a person to
enable administration of psychotropic medication; and requiring a person to take
psychotropic medication as a condition to receiving privileges or benefits.
Petition
The bill requires a petition for involuntary administration of psychotropic
medication as a protective service to meet all requirements for a protective services
petition under ch. 55 and in addition requires the petition to allege all of the following:
1. A physician has prescribed psychotropic medication for the person.
2. The person is not competent to refuse psychotropic medication. "Not competent
to refuse psychotropic medication" means that 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 the individual, the
individual is incapable of expressing an understanding of the advantages and
disadvantages of accepting treatment and the alternatives to accepting treatment or the
individual is substantially incapable of applying an understanding of the advantages,
disadvantages, and alternatives to treatment to his or her medical or psychiatric
condition in order to make an informed choice as to whether to accept or refuse
psychotropic medication.
3. The person has refused to take psychotropic medication voluntarily or
attempting to administer psychotropic medications to the person voluntarily is not
feasible or is not in the person's best interests. If the petition alleges that the person has
refused to take psychotropic medication voluntarily, the petition must identify the
reasons for the person's refusal. The petition must also contain evidence showing that
a reasonable number of documented attempts to administer psychotropic medication
voluntarily using appropriate interventions that could reasonably be expected to
increase the person's willingness to take the medication voluntarily, have been made and
have been unsuccessful. If the petition alleges that attempting to administer
psychotropic medications to the person voluntarily is not feasible or is not in the best
interests of the person, the petition must identify specific reasons supporting that
allegation.
4. The person's condition for which psychotropic medication has been prescribed
is likely to be improved by psychotropic medication and the person is likely to respond
positively to psychotropic medication.
5. That unless psychotropic medication is administered involuntarily, the person
will incur an immediate or imminent substantial probability of physical harm,
impairment, injury, or debilitation or will present a substantial probability of physical
harm to others. The substantial probability of physical harm, impairment, injury, or
debilitation may be shown either by evidence that the person has a history of at least 2
episodes, one of which has occurred within the previous 24 months, that indicate a
pattern of overt activity, attempts, threats to act, or omissions that resulted from the
person's failure to participate in treatment, including psychotropic medication, and that
resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement
agreement approved by a court under s. 51.20 (8) (bg) or commitment ordered under s.
51.20 (13), or by evidence that the subject individual meets one of the dangerousness
criteria set forth in the mental health law, in s. 51.20 (1) (a) 2. a. through e.
The bill requires a petition for involuntary administration of psychotropic
medication to include a written statement signed by a physician who has personal
knowledge of the person that provides general clinical information regarding the
appropriate use of psychotropic medication for the person's condition and specific data
that indicates the person's current symptoms necessitate the use of the psychotropic
medication.
The bill specifies that the corporation counsel shall be provided notice of any
petition for involuntary administration of psychotropic medication and may assist in the
proceedings on any such petition.
Guardian ad Litem Report
The bill requires the guardian ad litem appointed for a person who is the subject
of a petition for involuntary administration of psychotropic medication as a protective
service to report to the court his or her conclusion as to whether the person is competent
to refuse psychotropic medication, whether the allegations in the petition pertaining to
the person's dangerousness are true, whether the person refuses to take the psychotropic
medication voluntarily, and whether the involuntary administration of the psychotropic
medication is in the best interest of the person.
Appointment of Legal Counsel
The bill requires the court to appoint legal counsel on behalf of a person who is the
subject of a petition for involuntary administration of psychotropic medication as a
protective service.
Independent Evaluation
The bill provides that if requested by the person who is the subject of the petition,
or anyone on his or her behalf, the person has the right to an independent medical or
psychological evaluation relevant to the issues of whether the allegations in the petition
are true and whether involuntary administration of psychotropic medication is in the
best interest of the person. The person has the right to present a report of the independent
evaluation or the evaluator's personal testimony as evidence at the hearing. The
evaluation shall be performed at the expense of the person who is the subject of the
petition unless the person is indigent. If the person is indigent, the evaluation shall be
performed at the expense of the county where the petition is filed.
Court Order
The bill provides that the court may authorize a guardian to consent to involuntary
administration of psychotropic medication to a ward and may order involuntary
administration of psychotropic medication to the person as a protective service, with the
guardian's consent, if the court or jury finds by clear and convincing evidence that the
requirements for involuntary administration of psychotropic medication established in
the bill have been met, psychotropic medication is necessary for treating the specific
condition outlined in the physician's statement and all other requirements for ordering
protective services under ch. 55 have been met.
The bill specifies that if the court issues an order authorizing a guardian to consent
to involuntary administration of psychotropic medications, the order must specify the
methods of involuntary administration of psychotropic medication to which the guardian
may consent. An order authorizing the forcible restraint of a person must require a
registered nurse, a licensed practical nurse, a physician or a physician's assistant to be
present at all times that psychotropic medication is administered in this manner. An
order must require the person or facility administering psychotropic medication to
maintain records noting each instance of involuntary administration of psychotropic
medication that identify the methods of administration utilized.
The court must also order development of a treatment plan that includes a plan for
involuntary administration of psychotropic medication to the person with consent of the
guardian. If the person resides in a hospital or nursing home, the hospital or nursing
home must develop the plan; otherwise the county department or an agency designated
by it must develop the plan. The court must review the plan and approve or disapprove
the plan. The court must order the county department or an agency designated by it to
ensure that psychotropic medication is administered in accordance with the treatment
plan.
Enforcement
The bill specifies that if a person who is subject to an order for involuntary
administration of psychotropic medication refuses to take the medication and it is
necessary for the person to be transported to an appropriate facility so that the person
may be forcibly restrained for administration, the corporation counsel may file a
statement of noncompliance with the court. The statement must be signed by the
guardian and the director (or designee) of the county department or the agency
designated by it to develop and administer the treatment plan. Upon receipt of the
statement, the court may issue an order authorizing the sheriff or other law enforcement
agency to take the person into custody and transport the person to an appropriate facility
for administration of psychotropic medication using forcible restraint, with consent of the
guardian.
Annual Review of Order Authorizing Involuntary Administration of Psychotropic
Medication
The bill specifies an order authorizing a guardian to consent to involuntary
administration of psychotropic medication as a protective service must be reviewed by the
court annually under generally the same procedure that protective placements are
reviewed ("Watts" reviews).
County Department Review and Report
The bill requires the county department of the county of residence of any individual
who is subject to an order authorizing involuntary administration of psychotropic
medication as a protective service to annually review the status of the individual. If, in
an annual review, the individual or his or her guardian or guardian ad litem request
termination of the order and the court provides a full due process hearing or a full due
process hearing is provided pursuant to a petition for termination of the order, the county
is not required to review the status of the individual until one year after the court issues
a final order after the full due process hearing.
