SB391: Bill Text

SB391,71,22 (c) That, before the ward had incapacity to perform the act for which approval is sought, he or she did not manifest intent that is inconsistent with the act.

SB391,71,25 (7) Nothing in this section requires a guardian to file a petition under this section and a guardian is not liable or accountable to any person for having failed to file a petition under this section.

SB391,72,1 54.25 (1) Duties. A guardian of the person shall do all of the following:

SB391,72,3 (b) 1. Regular inspection, in person, of the ward's condition, surroundings, and treatment.

SB391,72,5 2. Examination of the ward's patient health care records and treatment records and authorization for redisclosure as appropriate.

SB391,72,8 3. Attendance and participation in staff meetings of any facility in which the ward resides or is a patient, if the meeting includes a discussion of the ward's treatment and care.

SB391,72,10 4. Inquiry into the risks and benefits of, and alternatives to, treatment for the ward, particularly if drastic or restrictive treatment is proposed.

SB391,72,12 5. Specific consultation with providers of health care and social services in making all necessary treatment decisions.

SB391,72,17 (2) Powers. (a) Rights and powers of a guardian of the person. A guardian of the person has only those rights and powers that the guardian is specifically authorized to exercise by statute, rule, or court order. Any other right or power is retained by the ward, unless the ward has been declared incompetent to exercise the right under par. (c) or the power has been transferred to the guardian under par. (d).

SB391,72,20 (b) Rights retained by individuals determined incompetent. An individual determined incompetent retains the power to exercise all of the following rights, without consent of the guardian:

SB391,72,25 1. To have access to and communicate privately with the court and with governmental representatives, including the right to have input into plans for support services, the right to initiate grievances, including under state and federal law regarding resident or patient rights, and the right to participate in administrative hearings and court proceedings.

SB391,73,2 2. To have access to, communicate privately with, and retain legal counsel, with fees paid from the income and assets of the ward, subject to court approval.

SB391,73,5 3. To have access to and communicate privately with representatives of the protection and advocacy agency under s. 51.62 and the board on aging and long-term care.

SB391,73,8 4. To protest a residential placement made under s. 55.05 (5), and to be discharged from a residential placement unless the individual is protectively placed under s. 55.06 or the elements of s. 55.06 (11) are present.

SB391,73,10 5. To petition for court review of guardianship, protective services, protective placement, or commitment orders.

SB391,73,11 6. To give or withhold a consent reserved to the individual under ch. 51.

SB391,73,14 7. To exercise any other rights specifically reserved to the individual by statute or the constitutions of the state or the United States, including the rights to free speech, freedom of association, and the free exercise of religious expression.

SB391,73,18 (c) Declaration of incompetence to exercise certain rights. 1. The court may, as part of a proceeding under s. 54.44 in which an individual is found incompetent and a guardian is appointed, declare that the individual has incapacity to exercise one or more of the following rights:

SB391,73,19 a. The right to consent to marriage.

SB391,73,20 b. The right to execute a will.

SB391,73,21 c. The right to serve on a jury.

SB391,74,3 d. The right to apply for an operator's license, a license issued under ch. 29, or a credential, as defined in s. 440.01 (2) (a), if the court finds that the individual is incapable of understanding the nature and risks of the licensed or credentialed activity, to the extent that engaging in the activity would pose a substantial risk of physical harm to the individual or others. A failure to find that an individual is incapable of applying for a license or credential is not a finding that the individual qualifies for the license or credential under applicable laws and rules.

SB391,74,7 e. The right to consent to sterilization, if the court finds that the individual is incapable of understanding the nature, risk, and benefits of sterilization, after the nature, risk, and benefits have been presented in a form that the individual is most likely to understand.

SB391,74,8 f. The right to consent to organ, tissue, or bone marrow donation.

SB391,74,11 2. Any finding under subd. 1. that an individual lacks evaluative capacity to exercise a right must be based on clear and convincing evidence. In the absence of such a finding, the right is retained by the individual.

SB391,74,17 3. If an individual is declared not competent to exercise a right under subd. 1. or 4., a guardian may not exercise the right or provide consent for exercise of the right on behalf of the individual. If the court finds with respect to a right listed under subd. 1. a., d., e., or f. that the individual is competent to exercise the right under some but not all circumstances, the court may order that the individual retains the right to exercise the right only with consent of the guardian of the person.

SB391,74,23 4. Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process. If the petition for a declaration of incompetence to vote is not part of a petition for guardianship, the same procedures shall apply as would apply for a petition for guardianship.

SB391,75,4 The determination of the court shall be communicated in writing by the clerk of court to the election official or agency charged under s. 6.48, 6.92, 6.925, or 6.93 with the responsibility for determining challenges to registration and voting that may be directed against that elector. The determination may be reviewed as provided in s. 54.64 (2) (a) and (c) and any subsequent determination of the court shall be likewise communicated by the clerk of court.

SB391,75,16 (d) Guardian authority to exercise certain powers. 1. A court may authorize a guardian of the person to exercise all or part of any of the powers specified in subd. 2. only if it finds, by clear and convincing evidence, that the individual lacks evaluative capacity to exercise the power. The court shall authorize the guardian of the person to exercise only those powers that are necessary to provide for the individual's personal needs, safety, and rights and to exercise the powers in a manner that is appropriate to the individual and that constitutes the least restrictive form of intervention. The court may limit the authority of the guardian of the person with respect to any power to allow the individual to retain power to make decisions about which the individual is able effectively to receive and evaluate information and communicate decisions. When a court appoints a guardian for a minor, the guardian shall be granted care, custody, and control of the person of the minor.

SB391,75,17 2. All of the following are powers subject to subd. 1.:

SB391,76,9 a. Except as provided under subd. 2. b., c., and d., and except for consent to psychiatric treatment and medication under ch. 51, and subject to any limitation under s. 54.46 (3) (b), the power to give informed consent, if in the ward's best interests, to voluntary or involuntary medical examination and treatment and to the voluntary receipt by the ward of medication, including any appropriate psychotropic medication that is in the ward's best interest, if the guardian has first made a good-faith attempt to discuss with the ward the ward's voluntary receipt of the psychotropic medication and the ward does not protest. For purposes of this subd. 2. a., "protest" means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. "Protest" does not mean a discernible negative response to a proposed method of administration of the psychotropic medication. A guardian may consent to the involuntary administration of psychotropic medication only under a court order under s. 55.14. In determining whether medication or medical treatment, other than psychotropic medication, 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.

SB391,76,14 b. Unless it can be shown by clear and convincing evidence that the ward would never have consented to research participation, the power to authorize the ward's participation in an accredited or certified research project if the research might help the ward; or if the research might not help the ward but might help others, and the research involves no more than minimal risk of harm to the ward.

SB391,76,24 c. The power to authorize the ward's participation in research that might not help the ward but might help others even if the research involves greater than minimal risk of harm to the ward if the guardian can establish by clear and convincing evidence that the ward would have elected to participate in such research; and the proposed research was reviewed and approved by the research and human rights committee of the institution conducting the research. The committee shall have determined that the research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the federal regulations for research involving human subjects for federally supported projects.

SB391,77,8 d. Unless it can be shown by clear and convincing evidence that the ward would never have consented to any experimental treatment, the power to consent to experimental treatment if the court finds that the ward's mental or physical status presents a life-threatening condition; the proposed experimental treatment may be a life saving remedy; all other reasonable traditional alternatives have been exhausted; 2 examining physicians have recommended the treatment; and, in the court's judgment, the proposed experimental treatment is in the ward's best interests.

SB391,77,10 e. The power to give informed consent to receipt by the ward of social and supported living services.

SB391,77,12 f. The power to give informed consent to release of medical, treatment, and other confidential records and to redisclosure as appropriate.

SB391,77,13 g. The power to make decisions related to mobility and travel.

SB391,77,16 h. The power to admit the individual to residential facilities as provided under s. 55.05 (5), make an emergency protective placement under s. 55.06 (11), or make a temporary protective placement under s. 55.06 (12).

SB391,77,18 i. The power to choose providers of medical, social, and supported living services.

SB391,77,20 j. The power to make decisions regarding educational and vocational placement and support services or employment.

SB391,77,22 k. The power to make decisions regarding initiating a petition for the termination of marriage.

SB391,77,23 L. The power to receive all notices on behalf of the ward.

SB391,78,2 m. The power to act in all proceedings as an advocate of the ward, except the power to enter into a contract that binds the ward or the ward's property or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the estate.

SB391,78,4 n. The power to apply for protective placement under s. 55.06 or for commitment under s. 51.20 or 51.45 (13) for the ward.

SB391,78,6 o. The power to have custody of the ward, if an adult, and the power to have care, custody, and control of the ward, if a minor.

SB391,78,7 p. Any other power the court may specifically identify.

SB391,78,11 3. In exercising powers and duties delegated to the guardian of the person under this paragraph, the guardian of the person shall, consistent with meeting the individual's essential requirements for health and safety and protecting the individual from abuse, exploitation, and neglect, do all of the following:

SB391,78,14 a. Place the least possible restriction on the individual's personal liberty and exercise of constitutional and statutory rights, and promote the greatest possible integration of the individual into his or her community.

SB391,78,22 b. Make diligent efforts to identify and honor the individual's preferences with respect to choice of place of living, personal liberty and mobility, choice of associates, communication with others, personal privacy, and choices related to sexual expression and procreation. In making a decision to act contrary to the individual's expressed wishes, the guardian shall take into account the individual's understanding of the nature and consequences of the decision, the level of risk involved, the value of the opportunity for the individual to develop decision-making skills, and the need of the individual for wider experience.

SB391,78,24 c. Consider whether the ward's estate is sufficient to pay for the needed services.

SB391,79,2 subchapter IV procedures

SB391,79,3 54.30 Jurisdiction and venue.

SB391,79,5 (3) (b) 1. An interested person shall file a petition for change of venue in the county in which venue for the guardianship currently lies.

SB391,79,9 2. The person filing the petition under subd. 1. shall give notice to the corporation counsel of the county in which venue for the guardianship currently lies and to the register in probate and corporation counsel for the county to which change of venue is sought.

SB391,79,18 3. If no objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies may enter an order changing venue. If objection to the change of venue is made within 15 days after the date on which notice is given under subd. 2., the circuit court of the county in which venue for the guardianship currently lies shall set a date for a hearing within 7 days after the objection is made and shall give notice of the hearing to the corporation counsel of that county and to the corporation counsel and register in probate of the county to which change of venue is sought.

SB391,79,20 54.34 (1) (k) Whether the proposed ward is a recipient of a public benefit, including medical assistance or a benefit under s. 46.27.

SB391,79,22 (L) The agent under any current, valid power of attorney for health care or durable power of attorney that the proposed ward has executed.

SB391,79,25 (m) Whether the petitioner is requesting a full or limited guardianship and, if limited, the specific authority sought by the petitioner for the guardian or the specific rights of the individual that the petitioner seeks to have removed or transferred.

SB391,80,2 (n) Whether the proposed ward, if married, has children who are not children of the current marriage.

SB391,80,4 (p) Whether there is a petition for guardianship or conservatorship of the proposed ward pending in another state or county.

SB391,80,7 54.36 (2) A petitioner or guardian ad litem may petition the court for an order requiring the proposed ward to submit to an examination by a licensed physician or psychologist pursuant to s. 804.10 (1).

SB391,80,11 (3) A physician or psychologist who examines a proposed ward under a court order requiring the examination may, without the informed consent of the proposed ward, obtain access to the patient health care records and treatment records of the proposed ward.

SB391,80,18 54.38 Notice. (1) Form and delivery of notice. A notice shall be in writing. A copy of the petition, motion, or other required document shall be attached to the notice. Unless otherwise provided, notice may be delivered in person, by certified mail with return receipt requested, or by facsimile transmission. Notice is considered to be given by proof of personal delivery or by proof that the notice was mailed to the last-known address of the recipient or was sent by facsimile transmission to the last-known facsimile transmission number of the recipient.

SB391,80,20 (2) (b) Personally or by mail at least 10 days before the time set for hearing, to all of the following:

SB391,80,21 1. The proposed ward's counsel, if any.

SB391,80,22 2. The proposed ward's guardian ad litem.

SB391,80,23 3. Any presumptive adult heirs, as specified in s. 851.09, of the proposed ward.

SB391,80,24 4. Any other interested persons, unless specifically waived by the court.

SB391,81,2 5. The agent under any durable power of attorney or power of attorney for health care of the ward.

SB391,81,3 6. Any person who has legal or physical custody of the proposed ward.

SB391,81,5 7. Any public or private agency, charity, or foundation from which the proposed ward is receiving aid or assistance.

SB391,81,6 8. The proposed guardian for the proposed ward.

SB391,81,7 9. Any other person that the court requires.

SB391,81,11 54.40 (4) (c) Interview the proposed guardian, the proposed standby guardian, if any, and any other person seeking appointment as guardian and report to the court concerning the fitness of each individual interviewed to serve as guardian and concerning the report under s. 54.15 (8).

SB391,81,15 (d) 1. Review any power of attorney for health care under ch. 155, any durable power of attorney under ch. 243 executed by the proposed ward, and any other advance planning for financial and health care decision making in which the proposed ward had engaged.

SB391,81,17 2. Interview any agent appointed by the proposed ward under any document specified in subd. 1.

SB391,81,19 3. Report to the court concerning whether or not the proposed ward's advance planning is adequate to preclude the need for guardianship.

SB391,81,21 (g) If the proposed ward or ward requests representation by counsel, inform the court and the petitioner or the petitioner's counsel, if any.

SB391,81,22 (h) Attend all court proceedings related to the guardianship.

SB391,81,24 54.42 Rights of proposed ward or ward. (1) Right to counsel. (a) 1. The proposed ward or ward requests counsel.

SB391,82,2 2. The guardian ad litem or another person states to the court that the proposed ward or ward is opposed to the guardianship petition.

SB391,82,4 3. The court determines that the interests of justice require counsel for the proposed ward or ward.

SB391,82,6 (b) Any attorney obtained under par. (a) or appointed under par. (c) shall be an advocate for the expressed wishes of the proposed ward or ward.

SB391,82,14 (2) Right to jury trial. The proposed ward or ward has the right to a trial by a jury if demanded by the proposed ward or ward, his or her attorney, or the guardian ad litem, except that the right is waived unless demanded at least 48 hours before the time set for the hearing. The number of jurors for such a trial is determined under s. 756.06 (2) (b). The proposed ward or ward, his or her attorney, or the guardian ad litem each has the right to present and cross-examine witnesses, including any physician or licensed psychologist who reports to the court concerning the proposed ward.

SB391,82,15 (3) Right to independent examination.

SB391,82,17 (5) Right to be present at hearing. The proposed ward or ward has the right to be present at any hearing regarding the guardianship.

SB391,82,20 (6) Right to hearing in accessible location. The proposed ward or ward has the right to have any hearing regarding the guardianship conducted in a location and manner that is accessible to the proposed ward or ward.

SB391,83,2 54.44 Hearing. (1) Time of hearing; provision of reports. (a) Time of hearing for petition. A petition for guardianship, other than a petition under par. (b) or s. 54.50 (1), shall be heard within 90 days after it is filed. The guardian ad litem and attorney for the proposed ward shall be provided with a copy of the report of the examining physician or psychologist under s. 54.36 (1) at least 96 hours before the time of the hearing.

SB391,83,5 (2) Standard of proof. Any determination by the court as to whether the proposed ward is incompetent or is a spendthrift shall be by clear and convincing evidence.