SB391: Bill Text

SB391,47,18 a. The ward's presence in the county is voluntary.

SB391,47,22 b. There is no current order under ch. 55 in effect with respect to the ward, and the ward is not under an involuntary commitment order to the department of corrections or to a county other than the county in which the ward is physically present.

SB391,47,23 c. The ward is living in a place of fixed habitation.

SB391,47,25 d. The guardian states in writing that it is the ward's intent to remain in the county for the foreseeable future.

SB391,48,8 3. The ward is a resident of the county specified by the guardian, regardless if a previous determination of county of residence has been made, notwithstanding pars. (a) and (b) for good cause shown, if, in the ward's best interest, the guardian files with the probate court having jurisdiction of the guardianship and protective placement a written statement declaring the ward's domiciliary intent, subject to court approval, and if notice and opportunity to be heard are provided to all affected counties and parties. Notice under this subdivision shall be sent to the corporation counsel of each affected county by certified mail.

SB391, s. 93 Section 93. 51.40 (2) (g) 1. of the statutes is amended to read:

SB391,48,19 51.40 (2) (g) 1. An individual, an interested person on behalf of the individual, or any county may request that the department make a determination of the county of responsibility of the individual. Any motion for change of venue pending before the court of jurisdiction may be stayed until the determination under this paragraph is final. Within 10 days after receiving the request, the department shall provide written notice to the individual,; to the individual's guardian, guardian ad litem, and counsel, if any,; to the individual's immediate family, if they can be located; and to all potentially responsible counties that a determination of county of responsibility shall be made and that written information and comments may be submitted within 30 days after the date on which the notice is sent.

SB391, s. 94 Section 94. 51.40 (2) (g) 6. of the statutes is created to read:

SB391,49,3 51.40 (2) (g) 6. The county that is determined to be the county of responsibility shall reimburse any other county for all care, treatment, and services provided by the other county to the individual under ch. 46, 51, or 55. Full reimbursement by the county that is determined to be the county of responsibility shall be made within 120 days after the date of the department's determination of the county of responsibility or within 120 days after the date of the outcome of any appeal of the department's determination that is brought under ch. 227, or by a date or under a schedule of 2 or more payments that is agreed to by both counties.

SB391, s. 95 Section 95. 51.45 (2) (e) of the statutes is amended to read:

SB391,49,6 51.45 (2) (e) "Incompetent person" means a person who has been adjudged incompetent by the circuit court, as defined in s. 54.01 (4).

SB391, s. 96 Section 96. 51.45 (10) (a) of the statutes is amended to read:

SB391,49,15 51.45 (10) (a) An adult alcoholic may apply for voluntary treatment directly to an approved public treatment facility. If the proposed patient is an individual adjudicated incompetent person in this state who has not been deprived by a court of the right to contract under subch. I of ch. 880, the person individual or a legal his or her guardian or other legal representative may make the application. If the proposed patient is an individual adjudicated incompetent person in this state who has been deprived by a court of the right to contract under subch. I of ch. 880, a legal, the individual's guardian or other legal representative may make the application.

SB391, s. 97 Section 97. 51.45 (10) (c) of the statutes is amended to read:

SB391,49,25 51.45 (10) (c) If a patient receiving inpatient care leaves an approved public treatment facility, the patient shall be encouraged to consent to appropriate outpatient or intermediate treatment. If it appears to the superintendent in charge of the treatment facility that the patient is an alcoholic or intoxicated person who requires help, the county department shall arrange for assistance in obtaining supportive services and residential facilities. If the patient is an individual who is adjudicated incompetent person, the request for discharge from an inpatient facility shall be made by a legal guardian or other legal representative or by the individual who is adjudicated incompetent if he or she was the original applicant.

SB391, s. 98 Section 98. 51.45 (13) (c) of the statutes is amended to read:

SB391,51,6 51.45 (13) (c) Effective and timely notice of the preliminary hearing, together with a copy of the petition and supporting affidavits under par. (a), shall be given to the person unless he or she has been taken into custody under par. (b), the spouse or legal guardian if the person is adjudicated incompetent, the person's counsel, and the petitioner. The notice shall include a written statement of the person's right to an attorney, the right to trial by jury, the right to be examined by a physician, and the standard under which he or she may be committed under this section. If the person is taken into custody under par. (b), upon arrival at the approved public treatment facility, the person shall be advised both orally and in writing of the right to counsel, the right to consult with counsel before a request is made to undergo voluntary treatment under sub. (10), the right not to converse with examining physicians, psychologists or other personnel, the fact that anything said to examining physicians, psychologists or other personnel may be used as evidence against him or her at subsequent hearings under this section, the right to refuse medication under s. 51.61 (6), the exact time and place of the preliminary hearing under par. (d), the right to trial by jury, the right to be examined by a physician and of the reasons for detention, and the standards under which he or she may be committed prior to all interviews with physicians, psychologists, or other personnel. Such notice of rights shall be provided to the person's immediate family if they can be located and may be deferred until the person's incapacitated condition, if any, has subsided to the point where the person is capable of understanding the notice. Under no circumstances may interviews with physicians, psychologists, or other personnel be conducted until such notice is given, except that the person may be questioned to determine immediate medical needs. The person may be detained at the facility to which he or she was admitted or, upon notice to the attorney and the court, transferred by the county department to another appropriate public or private treatment facility, until discharged under this subsection. A copy of the petition and all supporting affidavits shall be given to the person at the time notice of rights is given under this paragraph by the superintendent, who shall provide a reasonable opportunity for the patient to consult counsel.

SB391, s. 99 Section 99. 51.45 (13) (e) of the statutes is amended to read:

SB391,51,22 51.45 (13) (e) Upon a finding of probable cause under par. (d), the court shall fix a date for a full hearing to be held within 14 days. An extension of not more than 14 days may be granted upon motion of the person sought to be committed upon a showing of cause. Effective and timely notice of the full hearing, the right to counsel, the right to jury trial, and the standards under which the person may be committed shall be given to the person, the immediate family other than a petitioner under par. (a) or sub. (12) (b) if they can be located, the spouse or legal guardian if the person is adjudicated incompetent, the superintendent in charge of the appropriate approved public treatment facility if the person has been temporarily committed under par. (b) or sub. (12), the person's counsel, unless waived, and to the petitioner under par. (a). Counsel, or the person if counsel is waived, shall have access to all reports and records, psychiatric and otherwise, which have been made prior to the full hearing on commitment, and shall be given the names of all persons who may testify in favor of commitment and a summary of their proposed testimony at least 96 hours before the full hearing, exclusive of Saturdays, Sundays and legal holidays.

SB391, s. 100 Section 100. 51.61 (1) (o) of the statutes is amended to read:

SB391,52,10 51.61 (1) (o) Except as otherwise provided, have a right not to be filmed or taped, unless the patient signs an informed and voluntary consent that specifically authorizes a named individual or group to film or tape the patient for a particular purpose or project during a specified time period. The patient may specify in such the consent periods during which, or situations in which, the patient may not be filmed or taped. If a patient is legally adjudicated incompetent, such the consent shall be granted on behalf of the patient by the patient's guardian. A patient in Goodland Hall at the Mendota Mental Health Institute, or a patient detained or committed under ch. 980 and placed in a facility specified under s. 980.065, may be filmed or taped for security purposes without the patient's consent, except that such a patient may not be filmed in patient bedrooms or bathrooms for any purpose without the patient's consent.

SB391, s. 101 Section 101. 51.61 (1) (w) 3. of the statutes is amended to read:

SB391,53,2 51.61 (1) (w) 3. A patient, a patient's relative who may be liable for the cost of the patient's care and treatment, or a patient's guardian may request information about charges for care and treatment services at the treatment facility or community mental health program. If a treatment facility or community mental health program receives such a request, the treatment facility or community mental health program shall promptly provide to the individual making the request written information about the treatment facility's or community mental health program's charges for care and treatment services. Unless the request is made by the patient, the guardian of a patient adjudged adjudicated incompetent under ch. 880 in this state, the parent or guardian of a minor who has access to the minor's treatment records under s. 51.30 (5) (b) 1., or a person designated by the patient's informed written consent under s. 51.30 (4) (a) as a person to whom information may be disclosed, information released under this subdivision is limited to general information about the treatment facility's or community mental health program's charges for care and treatment services and may not include information which may not be disclosed under s. 51.30.

SB391, s. 102 Section 102. Chapter 54 of the statutes is created to read:

SB391,53,5 Chapter 54 guardiansHIPS and CONSERVATORSHIPs

SB391,53,7 subchapter I definitions

SB391,53,8 54.01 Definitions. In subchs I to VI:

SB391,53,11 (1) "Activities of daily living" means activities relating to the performance of self care, work, and leisure activities, including dressing, eating, grooming, mobility, and object manipulation.

SB391,53,13 (3) "Conservator" means a person who is appointed by a court at an individual's request under s. 54.76 (2) to manage the estate of the individual.

SB391,53,16 (4) "Court" means the circuit court or judge assigned to exercise probate jurisdiction or the assignee of the judge under s. 757.68 (4m) or 851.73 (1) (g) who is assigned relevant authority.

SB391,53,18 (5) "Decedent" means the deceased individual whose estate is subject to administration.

SB391,53,22 (6) "Degenerative brain disorder" means the loss or dysfunction of an individual's brain cells to the extent that he or she 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.

SB391,53,23 (7) "Depository account" has the meaning given in s. 815.18 (2) (e).

SB391,53,24 (9) "Durable power of attorney" has the meaning given in s. 243.07 (1) (a).

SB391,54,2 (11) "Guardian of the estate" means a guardian appointed to comply with the duties specified in s. 54.19 and to exercise any of the powers specified in s. 54.20.

SB391,54,5 (12) "Guardian of the person" means a guardian appointed to comply with the duties specified in s. 54.25 (1) and to exercise any of the powers specified in s. 54.25 (2).

SB391,54,11 (13) "Heir" means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.37 (10) and (11) when the decedent was a member of the Wisconsin Veterans Home at King or at the facilities operated by the department of veterans affairs under s. 45.385 at the time of the decedent's death.

SB391,54,13 (14) "Impairment" means a developmental disability, serious and persistent mental illness, degenerative brain disorder, or other like incapacities.

SB391,54,16 (15) "Incapacity" means the inability of an individual effectively to receive and evaluate information or to make or communicate a decision with respect to the exercise of a right or power.

SB391,54,18 (16) "Individual found incompetent" means an individual who has been adjudicated by a court as meeting the requirements of s. 54.10 (3).

SB391,54,19 (17) "Interested person" means any of the following:

SB391,54,20 (a) For purposes of a petition for guardianship, any of the following:

SB391,54,21 1. The proposed ward, if he or she has attained 14 years of age.

SB391,54,23 2. The spouse or adult child of the proposed ward, or the parent of a proposed ward who is a minor.

SB391,55,3 3. For a proposed ward who has no spouse, child, or parent, an heir, as defined in s. 851.09, of the proposed ward that may be reasonably ascertained with due diligence.

SB391,55,9 4. Any individual who is nominated as guardian, any individual who is appointed to act as guardian or fiduciary for the proposed ward by a court of any state, any trustee for a trust established by or for the proposed ward, any person appointed as agent under a power of attorney for health care, as defined in s. 155.01 (4), or any person appointed as agent under a durable power of attorney under ch. 243.

SB391,55,12 5. If the proposed ward is a minor, the individual who has exercised principal responsibility for the care and custody of the proposed ward during the period of 60 consecutive days immediately before the filing of the petition.

SB391,55,15 6. If the proposed ward is a minor and has no living parent, any individual nominated to act as fiduciary for the minor in a will or other written instrument that was executed by a parent of the minor.

SB391,55,20 7. If the proposed ward is receiving moneys paid, or if moneys are payable, by the federal department of veterans affairs, a representative of the federal department of veterans affairs, or, if the proposed ward is receiving moneys paid, or if moneys are payable, by the state department of veterans affairs, a representative of the state department of veterans affairs.

SB391,55,23 8. If the proposed ward is receiving long-term support services or similar public benefits, the county department of human services or social services that is providing the services or benefits.

SB391,56,3 9. The corporation counsel of the county in which the petition is filed and, if the petition is filed in a county other than the county of the proposed ward's residence, the corporation counsel of the county of the proposed ward's residence.

SB391,56,4 10. Any other person required by the court.

SB391,56,6 (b) For purposes of proceedings subsequent to an order for guardianship, any of the following:

SB391,56,7 1. The guardian.

SB391,56,8 2. The spouse or adult child of the ward or the parent of a minor ward.

SB391,56,10 3. The county of venue, through the county's corporation counsel, if the county has an interest.

SB391,56,12 4. Any person appointed as agent under a durable power of attorney under ch. 243, unless the agency is revoked or terminated by a court.

SB391,56,14 5. Any other individual that the court may require, including any fiduciary that the court may designate.

SB391,56,19 (18) "Least restrictive" means that which places the least possible restriction on personal liberty and the exercise of rights and that promotes the greatest possible integration of an individual into his or her community that is consistent with meeting his or her essential requirements for health, safety, habilitation, treatment, and recovery and protecting him or her from abuse, exploitation, and neglect.

SB391,56,23 (19) "Meet the essential requirements for physical health or safety" means perform those actions necessary to provide the health care, food, shelter, clothes, personal hygiene, and other care without which serious physical injury or illness will likely occur.

SB391,56,25 (21) "Mortgage" means any agreement or arrangement in which property is used as security.

SB391,57,3 (23) "Personal representative" means any individual to whom letters to administer a decedent's estate have been granted by the court or by the probate registrar under ch. 865, but does not include a special administrator.

SB391,57,4 (24) "Physician" has the meaning given in s. 448.01 (5).

SB391,57,8 (25) "Property" means any interest, legal or equitable, in real or personal property, without distinction as to kind, including money, rights of a beneficiary under a contractual arrangement, chooses in action, and anything else that may be the subject of ownership.

SB391,57,10 (26) "Proposed ward" means a minor, an individual alleged to be incompetent, or an alleged spendthrift, for whom a petition for guardianship is filed.

SB391,57,12 (27) "Psychologist" has the means a licensed psychologist, as defined in s. 455.01 (4).

SB391,57,15 (28) "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.

SB391,57,19 (29) "Sale" includes an option or agreement to transfer whether the consideration is cash or credit. It includes exchange, partition, and settlement of title disputes. The intent of this subsection is to extend and not to limit the meaning of "sale."

SB391,58,3 (30) "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 or of alcohol or drug dependence.

SB391,58,8 (32) "Standby conservator" means an individual designated by the court under s. 54.76 (2) whose appointment as conservator becomes effective immediately upon the death, resignation, or court's removal of the initially appointed conservator, or if the initially appointed conservator is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.

SB391,58,13 (33) "Standby guardian" means an individual designated by the court under s. 54.52 (2) whose appointment as guardian becomes effective immediately upon the death, resignation, or court's removed of the initially appointed guardian, or if the initially appointed guardian is temporarily or permanently unable, unavailable, or unwilling to fulfill his or her duties.

SB391,58,14 (34) "Successor conservator" means an individual appointed under s. 54.76 (9).

SB391,58,15 (35) "Successor guardian" means an individual appointed under s. 54.54.

SB391,58,18 (36) "Surviving spouse" means an individual who was married to the decedent at the time of the decedent's death. "Surviving spouse" does not include any of the following:

SB391,58,23 (a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless the 2 subsequently participated in a marriage ceremony purporting to marry each other or they subsequently held themselves out as husband and wife.

SB391,59,3 (b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a 3rd individual.

SB391,59,5 (c) An individual who was party to a valid proceeding concluded by an order purporting to terminate all property rights based on the marriage with the decedent.

SB391,59,9 (38) "Will" includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2). "Will" does not include a copy, unless the copy has been proven as a will under s. 856.17, but "will" does include a properly executed duplicate original.

SB391,59,11 subchapter II appointment of guardian

SB391,59,14 54.10 Appointment of guardian. (1) A court may appoint a guardian of the person or a guardian of the estate, or both, for a proposed ward if the court determines that the individual is a minor.

SB391,59,17 (2) A court may appoint a guardian of the person or a guardian of the estate, or both for a proposed ward if the court determines by clear and convincing evidence that the individual is a spendthrift.

SB391,59,20 (3) (a) A court may appoint a guardian of the person or a guardian of the estate, or both, for an individual based on a finding that the individual is incompetent only if the court finds by clear and convincing evidence that all of the following are true:

SB391,59,21 1. The individual is aged at least 17 years and 9 months.

SB391,59,25 2. For purposes of appointment of a guardian of the person, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.

SB391,60,4 3. For purposes of appointment of a guardian of the estate, because of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions related to management of his or her property or financial affairs, to the extent that any of the following applies:

SB391,60,5 a. The individual has property that will be dissipated in whole or in part.

SB391,60,6 b. The individual is unable to provide for his or her support.

SB391,60,7 c. The individual is unable to prevent financial exploitation.

SB391,60,11 4. The individual's need for assistance in decision making or communication is unable to be met effectively and less restrictively through appropriate and reasonably available training, education, support services, health care, assistive devices, or other means that the individual will accept.