Analysis by the Legislative Reference Bureau
With respect to the laws relating to protective placements and protective
services, involuntary administration of psychotropic medication, guardianships,
conservatorships, wards, and services for adults at risk and elder adults at risk, this
bill reconciles three acts that cannot be reconciled by the revisor of statutes in
preparing the statutes. The bill makes numerous and diverse minor changes to
correct incorrect cross-references, to align inconsistent provisions, to give effect to
certain provisions superceded by subsequent acts, and to make more uniform the
definitions of "developmental disability," degenerative brain disorder," and "serious
and persistent mental illness."
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB731,2,1613
46.286
(3) (a) 3. Is functionally eligible at the intermediate level and is
14determined by an elder-adult-at-risk agency under s. 46.90 (2) or an adult-at-risk
15agency designated under s. 55.02 to be in need of protective services or protective
16placement under ch. 55.
SB731,3,33
46.90
(1) (eg) 1. A guardian of the estate appointed under s.
880.03 54.10.
SB731,3,66
46.90
(1) (eg) 2. A conservator appointed under s.
880.31 54.76.
SB731,3,209
46.90
(5m) (a) Upon responding to a report, the elder-adult-at-risk agency or
10the investigative agency shall determine whether the elder adult at risk or any other
11individual involved in the alleged abuse, financial exploitation, neglect
, or
12self-neglect is in need of services under this chapter or ch. 47, 49, 51,
54, or 55
or 880.
13From the appropriation under s. 20.435 (7) (dh), the department shall allocate to
14selected counties not less than $25,000 in each fiscal year, and within the limits of
15these funds and of available state and federal funds and of county funds appropriated
16to match the state and federal funds, the elder-adult-at-risk agency shall provide
17the necessary direct services to the elder adult at risk or other individual or arrange
18for the provision of the direct services with other agencies or individuals. Those
19direct services provided shall be rendered under the least restrictive conditions
20necessary to achieve their objective.
SB731,4,223
46.90
(5m) (br) 2. Take appropriate emergency action, including emergency
24protective placement under s.
55.06 55.135, if the elder-adult-at-risk agency
1determines that the emergency action is in the best interests of the elder adult at risk
2and the emergency action is the least restrictive appropriate intervention.
SB731,4,85
46.90
(6) (bt) 8. To the attorney or guardian ad litem for the elder adult at risk
6who is the alleged victim named in the record, to assist in preparing for any
7proceeding under ch. 48, 51,
54, 55, 813,
880, 971, or 975 pertaining to the alleged
8victim.
SB731,4,1611
49.001
(8) "Voluntary" means according to an individual's free choice, if
12competent, or, if adjudicated incompetent, by choice of his or her guardian, unless the
13individual is subject to a court-ordered placement under ch. 55, is placed by an
14agency having a court-ordered involuntary commitment of the individual under ch.
1551, or is involuntarily committed to the department of corrections or to the
16department under ch. 971 or 980.
SB731,5,219
51.01
(5) (a) "Developmental disability" means a disability attributable to
20brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, mental
21retardation, or another neurological condition closely related to mental retardation
22or requiring treatment similar to that required for individuals with mental
23retardation, which has continued or can be expected to continue indefinitely and
24constitutes a substantial handicap to the afflicted individual. "Developmental
1disability" does not include dementia that is primarily caused by degenerative brain
2disorder.
SB731,5,135
51.01
(14t) "Serious and persistent mental illness" means a mental illness that
6is severe in degree and persistent in duration, that causes a substantially diminished
7level of functioning in the primary aspects of daily living and an inability to cope with
8the ordinary demands of life, that may lead to an inability to maintain stable
9adjustment and independent functioning without long-term treatment and support,
10and that may be of lifelong duration. "Serious and persistent mental illness" includes
11schizophrenia as well as a wide spectrum of psychotic and other severely disabling
12psychiatric diagnostic categories, but does not include degenerative brain disorder
13or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
SB731,5,1816
51.03
(3) (a) 6. The number of individuals authorized to consent to involuntary
17administration of psychotropic medication under s. 55.14 (8) or for whom guardians
18were appointed under s. 880.33 (4m), 2003 stats.
SB731,6,1321
51.20
(7) (d) 1. If the court determines after hearing that there is probable cause
22to believe that the subject individual is a fit subject for guardianship and protective
23placement or services, the court may, without further notice, appoint a temporary
24guardian for the subject individual and order temporary protective placement or
25services under ch. 55 for a period not to exceed 30 days, and shall proceed as if
1petition had been made for guardianship and protective placement or services. If the
2court orders only temporary protective services for a subject individual under this
3paragraph, the individual shall be provided care only on an outpatient basis. The
4court may order psychotropic medication as a temporary protective service under
5this paragraph if it finds that there is probable cause to believe that the allegations
6under s. 55.14 (3) (e) apply, that the individual is not competent to refuse
7psychotropic medication and that the medication ordered will have therapeutic
8value and will not unreasonably impair the ability of the individual to prepare for
9and participate in subsequent legal proceedings. An individual is not competent to
10refuse psychotropic medication if, because of serious and persistent mental illness,
11and after the advantages and disadvantages of and alternatives to accepting the
12particular psychotropic medication have been explained to the individual, one of the
13following is true:
SB731,6,1514
a. The individual is incapable of expressing an understanding of the
15advantages and disadvantages of accepting treatment and the alternatives.
SB731,6,1916
b. The individual is substantially incapable of applying an understanding of
17the advantages, disadvantages and alternatives to his or her serious and persistent
18mental illness in order to make an informed choice as to whether to accept or refuse
19psychotropic medication.
SB731,7,422
54.01
(8) "Developmental disability" means a disability attributable to mental
23retardation, cerebral palsy, epilepsy, autism, or another neurological condition
24closely related to mental retardation or requiring treatment similar to that required
25for individuals with mental retardation, which has continued or can be expected to
1continue indefinitely, substantially impairs an individual from adequately providing
2for his or her own care or custody, and constitutes a substantial handicap to the
3afflicted individual. The term does not include dementia that is primarily caused by
4degenerative brain disorder.
SB731,7,147
54.10
(3) (d) Before appointing a guardian under this subsection, declaring
8incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers
9are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the
10court shall determine if additional medical, psychological, social, vocational, or
11educational evaluation is necessary for the court to make an informed decision
12respecting the individual's competency to exercise legal rights and may obtain
13assistance in the manner provided in s.
55.06 (8)
55.11 whether or not protective
14placement is made.
SB731,7,1817
54.25
(1) (b) (intro.) Endeavor to secure any necessary care or services for the
18ward that are in the ward's best interests, based on all of the following:
SB731,7,2421
54.25
(2) (b) 4. To protest a residential placement made under s.
55.05 (5) 2255.055, and to be discharged from a residential placement unless the individual is
23protectively placed under
s. 55.06 ch. 55 or the
elements requirements of s.
55.06 (11) 2455.135 (1) are
present met.
SB731,8,43
54.25
(2) (d) 2. n. The power to
apply
petition for protective placement under
4s.
55.06 55.075 or for commitment under s. 51.20 or 51.45 (13) for the ward.
SB731, s. 17
5Section
17. 54.36 (title) of the statutes is created to read:
SB731,8,6
654.36 (title)
Examination of proposed ward.
SB731,9,69
54.36
(1) Whenever it is proposed to appoint a guardian on the ground that a
10proposed ward allegedly has incompetency or is a spendthrift, a physician or
11psychologist, or both, shall examine the proposed ward and furnish a written report
12stating the physician's or psychologist's professional opinion regarding the presence
13and likely duration of any medical or other condition causing the proposed ward to
14have incapacity or to be a spendthrift. The privilege under s. 905.04 does not apply
15to the statement. The petitioner shall provide a copy of the report to the proposed
16ward or his or her counsel, the guardian ad litem, and the petitioner's attorney, if any.
17Prior to the examination on which the report is based, the guardian ad litem,
18physician, or psychologist shall inform the proposed ward that statements made by
19the proposed ward may be used as a basis for a finding of incompetency or a finding
20that he or she is a spendthrift, that he or she has a right to refuse to participate in
21the examination, absent a court order, or speak to the physician or psychologist, and
22that the physician or psychologist is required to report to the court even if the
23proposed ward does not speak to the physician or psychologist. The issuance of such
24a warning to the proposed ward prior to each examination establishes a presumption
25that the proposed ward understands that he or she need not speak to the physician
1or psychologist. Nothing in this section prohibits the use of a report by a physician
2or psychologist that is based on an examination of the proposed ward by the
3physician or psychologist before filing the petition for appointment of a guardian, but
4the court will consider the recency of the report in determining whether the report
5sufficiently describes the proposed ward's current state and in determining the
6weight to be given to the report.
SB731,9,189
54.38
(2) (a) On the proposed ward or ward by personal service and an existing
10guardian, if any, by personal service or by registered or certified mail at least 10 days
11before the time set for hearing. If the proposed ward or ward is in custody or
12confinement, the petitioner shall have notice served by registered or certified mail
13on the proposed ward's or ward's custodian, who shall immediately serve it on the
14proposed ward or ward. The process server or custodian shall inform the proposed
15ward or ward of the complete contents of the notice and petition, motion, or other
16required document; certify on the notice that the process server or custodian served
17and informed the proposed ward or ward; and return the certificate and notice to the
18court.
SB731,9,2521
54.40
(1) Appointment. The court shall appoint a guardian ad litem when a
22petition for appointment of a guardian is brought under s. 54.34 (1), when a petition
23for receipt and acceptance of a foreign guardianship is brought under s. 54.34 (3), to
24review the scope of a guardianship, to provide protective placement to an individual
25or order protective services under ch. 55, to review any protective placement or
1protective service order under s. 55.18, to terminate a protective placement under s.
255.17, to expand an order of guardianship under s. 54.63, to review incompetency and
3terminate a guardianship under s. 54.64, to review the conduct of a guardian under
4s. 54.68, to expand an order of guardianship under s. 54.63, to review incompetency
5and terminate a guardianship under s. 54.64, to review the conduct of a guardian
6under s. 54.68, or at any other time that the court determines it is necessary.
SB731,10,139
54.42
(1) (c) If par. (a) 1., 2., or 3. applies but the proposed ward or ward is
10unable to obtain legal counsel, the court shall appoint legal counsel. If the proposed
11ward or ward is represented by counsel appointed under s. 977.08 in a proceeding
12under a petition for protective placement brought under s. 55.075, the court shall
13order the counsel appointed under s. 977.08 to represent the proposed ward or ward.
SB731,10,20
1654.48 Protective placement and protective services. A finding of
17incompetency and appointment of a guardian under this chapter is not grounds for
18involuntary protective placement or the provision of protective services. Protective
19placement and the provision of protective services may be made only in accordance
20with ch. 55.
SB731,11,3
2354.75 Access to court records. All court records pertinent to the finding of
24incompetency are closed but subject to access as provided in s. 51.30, 55.22, or under
25an order of a court under this chapter. The fact that an individual has been found
1incompetent and the name of and contact information for the guardian is accessible
2to any person who demonstrates to the custodian of the records a need for that
3information.
SB731,11,20
655.001 Declaration of policy. The legislature recognizes that many citizens
7of the state, because of serious and persistent mental illness, degenerative brain
8disorders, developmental disabilities, or other like incapacities, are in need of
9protective services or protective placement. Except as provided in s. 49.45 (30m) (a),
10the protective services or protective placement should, to the maximum degree of
11feasibility under programs, services and resources that the county board of
12supervisors is reasonably able to provide within the limits of available state and
13federal funds and of county funds required to be appropriated to match state funds,
14allow the individual the same rights as other citizens, and at the same time protect
15the individual from financial exploitation, abuse, neglect, and self-neglect. This
16chapter is designed to establish those protective services and protective placements,
17to assure their availability to all individuals when in need of them, and to place the
18least possible restriction on personal liberty and exercise of constitutional rights
19consistent with due process and protection from abuse, financial exploitation,
20neglect, and self-neglect.
SB731,12,223
55.01
(1v) "Degenerative brain disorder" means the loss or dysfunction of brain
24cells to the extent that the individual is substantially impaired in his or her ability
1to provide adequately for his or her own care or custody or to manage adequately his
2or her property or financial affairs.
SB731,12,125
55.01
(2) "Developmental disability" means a disability attributable to mental
6retardation, cerebral palsy, epilepsy, autism or another neurological condition
7closely related to mental retardation or requiring treatment similar to that required
8for individuals with mental retardation, which has continued or can be expected to
9continue indefinitely, substantially impairs an individual from adequately providing
10for his or her own care or custody, and constitutes a substantial handicap to the
11afflicted individual. The term does not include dementia that is primarily caused by
12degenerative brain disorder.
SB731,13,9
155.01
(6v) "Serious and persistent mental illness" means a mental illness that
2is severe in degree and persistent in duration, that causes a substantially diminished
3level of functioning in the primary aspects of daily living and an inability to cope with
4the ordinary demands of life, that may lead to an inability to maintain stable
5adjustment and independent functioning without long-term treatment and support,
6and that may be of lifelong duration. "Serious and persistent mental illness" includes
7schizophrenia as well as a wide spectrum of psychotic and other severely disabling
8psychiatric diagnostic categories, but does not include degenerative brain disorder
9or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
SB731,13,13
1255.02 Protective services and protective placement: duties. (1) 13Department duties. (a) The department shall do all of the following:
SB731,13,1714
1. Cooperate with county departments to develop and operate a coordinated,
15statewide system for protective services and protective placement. The protective
16services and protective placement system shall be designed to encourage
17independent living and to avoid protective placement whenever possible.
SB731,13,1918
2. Monitor and supervise the implementation and operation of the protective
19services and protective placement system.
SB731,13,2120
3. Provide technical assistance to county departments providing protective
21services and protective placement.
SB731,13,2222
4. Evaluate the protective services and protective placement system.
SB731,13,2423
(b) The department may provide protective services and protective placement
24directly or contract for the provision of protective services or protective placement.
SB731,14,8
1(2) County department duties. (a) The chairperson of each county board of
2supervisors shall designate a county department under s. 46.215, 46.22, 46.23, 51.42,
3or 51.437 that is providing services in the county on its own or through a joint
4mechanism with another county department or county to have the responsibility for
5planning for the provision of protective services and protective placement and for
6directly providing protective services, protective placement, or both, or entering into
7a contract under s. 46.036 with a responsible agency for the provision of protective
8services, protective placement, or both.
SB731,14,109
(b) In addition to the responsibilities specified in par. (a), the county
10department shall:
SB731,14,1111
1. Monitor and evaluate protective services and protective placements.
SB731,14,1312
2. Prepare and submit reports required by the department, or by a court if
13protective services or protective placement are ordered by a court.
SB731,14,1514
3. Develop requirements for submittal by guardians of the person of reports to
15the county department under s. 54.25 (1) (a).
SB731,14,1816
4. Designate at least one appropriate medical facility or protective placement
17facility as an intake facility for the purpose of emergency protective placements
18under s. 55.135.
SB731,14,2321
55.03
(1) Agency as guardian Guardian as provider. No
agency acting as a 22guardian appointed under
ch. 54 or ch. 880
, 2003 stats., may be a provider of
23protective services or protective placement for its ward under this chapter.
SB731,15,5
155.03
(3) Guardian authority and responsibility applicable to parent of
2minor. Where any responsibility or authority is created under this chapter upon or
3in relation to a guardian, the responsibility or authority is deemed to apply to a
4parent or person in the place of a parent in the case of a minor who is or who is alleged
5to
be developmentally disabled have developmental disability.
SB731,15,108
55.043
(1r) (b) 2. Observation of or an interview with the adult at risk, in
9private to the extent practicable, and with or without consent of his or her guardian
10or agent under an activated power of attorney for health care, if any.
SB731,15,1313
55.043
(1r) (c) 2. c. The examination is authorized by order of a court.
SB731,15,2116
55.043
(4) (am) Upon responding to a report, the adult-at-risk agency or the
17investigative agency shall determine whether the adult at risk or any other
18individual involved in the alleged abuse, financial exploitation, neglect, or
19self-neglect is in need of services under this chapter or ch. 46, 47,
59 49, 51, or
880 2054. If provided, direct services shall be rendered under the least restrictive
21conditions necessary to achieve their objective.