SB391: Bill Text

SB391,91,5 (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.

SB391,91,6 (b) Committing fraud, waste, or mismanagement.

SB391,91,7 (c) Abusing or neglecting the ward or knowingly permitting others to do so.

SB391,91,8 (d) Engaging in self-dealing.

SB391,91,10 (e) Failing to provide adequately for the personal needs of the ward from the ward's available assets and income, including any available public benefits.

SB391,91,13 (f) Failing to exercise due diligence and reasonable care in assuring that the ward's personal needs are being met in the least restrictive environment consistent with the ward's needs and incapacities.

SB391,91,14 (g) Failing to act in the best interests of the ward.

SB391,91,16 (h) Failing to disclose conviction for a crime that would have prevented appointment of the person as guardian.

SB391,91,17 (i) Failing to disclose that the guardian is listed under s. 146.40 (4g) (a) 2.

SB391,91,20 (j) Other than as provided in pars. (a) to (i), failing to perform any duties of a guardian or performing acts prohibited to a guardian as specified in ss. 54.18, 54.19, 54.20, 54.22, 54.25, and 54.62.

SB391,92,2 (3) Procedure. Upon the filing of a petition for review of the conduct of a guardian, the court shall hold a hearing in not less than 10, nor more than 60, days and shall order that the petitioner provide notice of the hearing to the ward, the guardian, and any other persons as determined by the court. The court may authorize use by the petitioner of any of the methods of discovery specified in ch. 804 in support of the petition to review conduct of the guardian.

SB391,92,5 (4) Remedies of the court. If petitioned by any party or on the court's own motion and after finding cause as specified in sub. (2), a court may do any of the following:

SB391,92,7 (a) Order the guardian to file an inventory or other report or account required of the guardian.

SB391,92,9 (b) Require the guardian to reimburse the ward or, if deceased, the ward's estate for losses incurred as the result of the guardian's breach of a duty to the ward.

SB391,92,11 (c) Impose a forfeiture of up to $10,000 on the guardian, or deny compensation for the guardian or both.

SB391,92,12 (d) Remove the guardian.

SB391,92,15 (e) Enter any other order that may be necessary or appropriate to compel the guardian to act in the best interests of the ward or to otherwise carry out the guardian's duties.

SB391,92,18 (5) Removal of paid guardian. The court may remove a paid guardian if changed circumstances indicate that a previously unavailable volunteer guardian is available to serve and that the change would be in the best interests of the ward.

SB391,92,20 (6) Fees and costs in proceedings. In any proceeding under sub. (2) or (5), all of the following apply:

SB391,92,22 (a) The court may require the guardian to pay personally any costs of the proceeding, including costs of service and attorney fees.

SB391,93,2 (b) Notwithstanding a finding of incompetence, a ward who is petitioning the court under sub. (2) may retain legal counsel, the selection of whom is subject to court approval, and contract for the payment of fees, regardless of whether or not the guardian consents or whether or not the court finds cause under sub. (2).

SB391,93,5 54.72 Guardian compensation and reimbursement. A guardian of the person or a guardian of the estate is entitled to compensation and to reimbursement for expenses as follows:

SB391,93,7 (1) Compensation. (a) Subject to the court's approval, as determined under par. (b), a guardian shall receive reasonable compensation for the guardian's services.

SB391,93,9 (b) The court shall use all of the following factors in deciding whether compensation for a guardian is just and reasonable:

SB391,93,10 1. The reasonableness of the services rendered.

SB391,93,11 2. The fair market value of the services rendered.

SB391,93,12 3. Any conflict of interest of the guardian.

SB391,93,13 4. The availability of another to provide the services.

SB391,93,15 5. The value and nature of the ward's assets and income, including the sources of the ward's income.

SB391,93,16 6. Whether the ward's basic needs are being met.

SB391,93,17 7. The hourly or other rate proposed by the guardian for the services.

SB391,93,21 (c) The amount of the compensation may be determined on an hourly basis, as a monthly stipend, or on any other basis that the court determines is reasonable under the circumstances. The court may establish the amount or basis for computing the guardian's compensation at the time of the guardian's initial appointment.

SB391,93,25 (2) Reimbursement of expenses. The guardian shall be reimbursed for the amount of the guardian's reasonable expenses incurred in the execution of the guardian's duties, including necessary compensation paid to an attorney, an accountant, a broker, and other agents or service providers.

SB391,94,3 (3) When court approval required. A court must approve compensation and reimbursement of expenses before payment to the guardian is made, but court approval need not be obtained before charges are incurred.

SB391,94,6 subchapter VI voluntary proceedings; conservators

SB391,94,7 54.76 Conservator; appointment; duties and powers; termination.

SB391,94,14 (3g) If the individual has executed a durable power of attorney before the proceedings under this section, the durable power of attorney remains in effect, except that the court may, only for good cause shown, revoke the durable power of attorney or limit the authority of the agent under the terms of the durable power of attorney. Unless the court makes this revocation or limitation, the individual's conservator may not make decisions for the individual that may be made by the agent, unless the conservator is the agent.

SB391,94,17 (3m) A person may at any time bring a petition for the appointment of a standby conservator for an individual for whom a conservator has been appointed under sub. (2).

SB391,95,6 (3n) At any hearing conducted under this section the court may designate one or more standby conservators for an individual for whom a conservator has been appointed under sub. (2) whose appointment shall become effective immediately upon the death, unwillingness, unavailability, or inability to act, resignation, or court's removal of the initially appointed conservator or during a period, as determined by the initially appointed conservator or the court, when the initially appointed conservator is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby conservator shall be the same as those of the initially appointed conservator. The standby conservator shall receive a copy of the court order establishing or modifying the initial conservatorship and the order designating the standby conservator. Upon assuming office, the standby conservator shall so notify the court. Upon notification, the court shall designate this conservator as permanent or shall specify the time period for a limited standby conservatorship.

SB391,95,10 (6) The court that appointed the conservator shall have continuing jurisdiction over the conservator. Any of the following, if committed by a conservator with respect to a conservatee or the conservatee's income or assets, constitutes cause for removal of the conservator under sub. (7) (a) 5:

SB391,95,12 (a) Failing to file timely an inventory or account, as required under this chapter, that is accurate and complete.

SB391,95,13 (b) Committing fraud, waste, or mismanagement.

SB391,95,15 (c) Abusing or neglecting the conservatee or knowingly permitting others to do so.

SB391,95,16 (d) Engaging in self-dealing.

SB391,95,18 (e) Failing to provide adequately for the personal needs of the conservatee from the available income and assets and any available public benefits.

SB391,95,19 (f) Failing to act in the best interests of the conservatee.

SB391,95,21 (g) Failing to disclose conviction for a crime that would have prevented appointment of the person as conservator.

SB391,95,22 (h) Failing to disclose that the conservator is listed under s. 146.40 (4g) (a) 2.

SB391,95,24 (7) (a) The powers of a conservator may not be terminated without a hearing and may not be terminated unless any of the following occurs:

SB391,96,2 1. The court removes the conservator on the court's own motion or under sub. (4).

SB391,96,4 2. The court appoints a guardian for the individual whose income and assets are conserved.

SB391,96,5 3. The individual whose income and assets are conserved dies.

SB391,96,7 4. The conservator or individual whose income and assets are conserved changes residence to another state.

SB391,96,8 5. The court finds cause, as specified in sub. (6), for removal of the conservator.

SB391,96,14 (b) If anyone objects to termination of the conservatorship and alleges that the individual whose income and assets are conserved is appropriate for appointment of a guardian, the court may stay the hearing under par. (a) for 14 days to permit any interested person to file a petition for guardianship. If no petition is filed, the court may terminate the conservatorship and may appoint a guardian ad litem for the individual.

SB391,96,24 (8) If a court terminates a conservatorship or a conservator resigns, is removed, or dies, the conservator or the conservator's personal representative or special administrator shall promptly render a final account of the former conservatee's income and assets to the court and to the former conservatee, any guardian of the former conservatee, or any deceased conservatee's personal representative or special administrator, as appropriate. If the conservator dies and the conservator and the deceased conservatee's personal representative or special administrator are the same person, the deceased conservatee's personal representative or special administrator shall give notice of the termination and rendering of the final account to all interested persons of the conservatee's estate.

SB391,97,6 (9) (a) If a conservator resigns, is removed, or dies, the court, on its own motion or upon petition of any interested person, may appoint a competent and suitable person as successor conservator. The court may, upon request of any interested person or on its own motion, direct that a petition for appointment of a successor conservator be heard in the same manner and subject to the same requirements as provided under this section for an original appointment of a conservator.

SB391,97,11 (b) If the appointment under par. (a) is made without hearing, the successor conservator shall provide notice to the individual for whom a conservator has been appointed and all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the successor conservator. The notice shall be served personally or by mail not later than 10 days after the appointment.

SB391,97,12 subchapter vii

SB391,97,13 uniform guardianship acts

SB391,97,14 54.850 Definitions. In this subchapter:

SB391,97,16 (1) "Administration" means any proceeding relating to a decedent's estate whether testate or intestate.

SB391,97,18 (2) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.

SB391,97,21 (3) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under the decedent's will or under the statutes of intestate succession.

SB391,97,22 (4) "Person interested" has the meaning given in s. 851.21.

SB391, s. 103 Section 103. 55.01 (1v) of the statutes is created to read:

SB391,98,2 55.01 (1v) "Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.

SB391, s. 104 Section 104. 55.01 (6t) of the statutes is created to read:

SB391,98,6 55.01 (6t) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

SB391, s. 105 Section 105. 55.01 (6v) of the statutes is created to read:

SB391,98,17 55.01 (6v) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability, as defined in s. 51.01 (5) (a), or of alcohol or drug dependence.

SB391, s. 106 Section 106. 55.02 of the statutes is amended to read:

SB391,99,13 55.02 Protective service system; establishment. The department shall develop a statewide system of protective service for mentally retarded and other developmentally disabled persons, for aged infirm persons, for chronically mentally ill persons, and for persons with other like incapacities incurred at any age in accordance with rules promulgated by the department. The protective service system shall be designed to encourage independent living and to avoid protective placement whenever possible. The system shall use the planning and advice of agencies, including the county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437. The chairperson of each county board of supervisors shall designate a county department under s. 46.215, 46.22, 51.42, or 51.437 that is providing services in his or her county or a joint mechanism of these county departments to have the responsibility for local planning for the protective service system. The chairperson of the Milwaukee County board of supervisors shall designate the county department under s. 46.215 to serve as the county protective services agency for purposes of s. 55.043. The department and these county departments shall cooperate in developing a coordinated system of services. The department shall provide direct services and enter into contracts with any responsible public or private agency for provision of protective services. In each county, the county department designated under this section shall determine the reporting requirements applicable to the county under s. 880.38 (3) 54.25 (1) (a).

SB391, s. 107 Section 107. 55.03 of the statutes is amended to read:

SB391,99,19 55.03 Status of guardian. No agency acting as a guardian appointed under ch. 54. or ch. 880 shall, 2003 stats., may be a provider of protective services or placement for its ward under this chapter. Nothing in this chapter shall may be construed to prohibit the transfer of guardianship and legal custody under s. 48.427 or 48.43.

SB391, s. 108 Section 108. 55.05 (2) (d) of the statutes is amended to read:

SB391,99,25 55.05 (2) (d) The court may order protective services for an individual for whom a determination of incompetency is made under s. 880.33 54.10 (3) 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. The court may order the involuntary administration of psychotropic medication as a protective service under this paragraph only if a determination of incompetency is made for the individual under s. 880.33 (4m). The court may authorize a guardian to consent to forcible administration of psychotropic medication for an individual only if the court has made a finding under s. 880.33 (4r) (b) that the individual has substantially failed to comply with the administration of psychotropic medication under the individual's treatment plan only under the requirements of s. 55.14.

SB391, s. 109 Section 109. 55.05 (5) (b) 1. of the statutes is amended to read:

SB391,100,15 55.05 (5) (b) 1. Guardians of persons who have been found adjudicated incompetent under s. 880.33 in this state may consent to admission to a foster home, group home or community-based residential facility, as defined under s. 50.01 (1g), without a protective placement under s. 55.06 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a home or facility that implements those rights.

SB391, s. 110 Section 110. 55.05 (5) (b) 2. of the statutes is amended to read:

SB391,100,24 55.05 (5) (b) 2. Guardians of persons who have been found adjudicated incompetent under s. 880.33 in this state may consent to admission to a nursing home if the person is admitted directly from a hospital inpatient unit for recuperative care for a period not to exceed 3 months, unless the hospital admission was for psychiatric care. Prior to providing that consent, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a nursing home that implements those rights. Following the 3-month period, a placement proceeding under s. 55.06 is required.

SB391, s. 111 Section 111. 55.06 (1) (intro.) of the statutes is amended to read:

SB391,101,11 55.06 (1) (intro.) A protective placement under this section is a placement of a ward for the primary purpose of providing care and custody. To be eligible for placement, an individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive placement upon attaining the age of 14. No protective placement under this section may be ordered unless there is a determination an adjudication of incompetency in accordance with ch. 880 this state, except in the case of a minor who is alleged to be developmentally disabled, and there is a finding of a need for protective placement in accordance with sub. (2) except as provided in subs. (11) and (12). A procedure for adult protective placement may be initiated 6 months prior to an individual's birthday at which he or she first becomes eligible for placement.

SB391, s. 112 Section 112. 55.06 (1) (a) of the statutes is amended to read:

SB391,101,19 55.06 (1) (a) The board designated under s. 55.02 department, the county department or an agency designated by it with which the county department contracts under s. 55.05 (2), a guardian, or an interested person may file a petition for appointment of a guardian and for protective services or protective placement for the individual. The department shall provide for a schedule of reimbursement for the cost of such the proceedings based upon the ability to pay of the proposed ward or person individual to be protected.

SB391, s. 113 Section 113. 55.06 (2) (b) of the statutes is amended to read:

SB391,101,23 55.06 (2) (b) Except in the case of a minor who is alleged to be developmentally disabled, has either been determined to be adjudicated incompetent by a circuit court, or has had submitted on the minor's behalf a petition for a guardianship;

SB391, s. 114 Section 114. 55.06 (3) (c) of the statutes is amended to read:

SB391,102,9 55.06 (3) (c) The A petition under sub. (1) shall be filed in the county of residence of the person individual to be protected, as determined under s. 51.40 or by the individual's guardian or where the individual is physically present due to circumstances including those specified under s. 51.22 (4). If an individual has not received services under ch. 46, 51, or 55 or if an individual has received services under ch. 46, 51, or 55 that have been terminated and has established residence in a county other than that in which the individual resided when the services were received, the court may determine the individual's county of residence. The county of residence under this paragraph is the county of responsibility.