SB153: Bill Text

SB153, s. 20 Section 20. 51.10 (8) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,10,10 51.10 (8) An adult for whom, because of incompetency, a guardian of the person has been appointed in this state may be voluntarily admitted to an inpatient treatment facility if the guardian consents after the requirements of sub. (4m) (a) 1. are satisfied or if the guardian and the ward consent to the admission under this section.

SB153, s. 21 Section 21. 51.20 (7) (d) 1. of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,11,5 51.20 (7) (d) 1. If the court determines after hearing that there is probable cause to believe that the subject individual is a fit subject for guardianship and protective placement or services, the court may, without further notice, appoint a temporary guardian for the subject individual and order temporary protective placement or services under ch. 55 for a period not to exceed 30 days, and shall proceed as if petition had been made for guardianship and protective placement or services. If the court orders only temporary protective services for a subject individual under this paragraph, the individual shall be provided care only on an outpatient basis. The court may order the involuntary administration of psychotropic medication as a temporary protective service under this paragraph if it finds that there is probable cause to believe that the allegations under s. 55.14 (3) (e) apply, that the individual is not competent to refuse psychotropic medication and that the medication ordered will have therapeutic value and will not unreasonably impair the ability of the individual to prepare for and participate in subsequent legal proceedings. An individual is not competent to refuse psychotropic medication if, because of serious and persistent mental illness, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, one of the following is true:

SB153,11,7 a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.

SB153,11,11 b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her serious and persistent mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.

SB153, s. 22 Section 22. 51.30 (4) (b) 17. of the statutes is amended to read:

SB153,11,22 51.30 (4) (b) 17. To the elder-adult-at-risk agency designated under s. 46.90 (2) or other investigating agency under s. 46.90 for the purposes of s. 46.90 (4) and (5), to the county department as defined in s. 48.02 (2g) or the sheriff or police department for the purposes of s. 48.981 (2) and (3), or to the adult-at-risk agency designated under s. 55.02 s. 55.043 (1d) for purposes of s. 55.043. The treatment record holder may release treatment record information by initiating contact with the elder-adult-at-risk agency, adult-at-risk agency, or county department, as defined in s. 48.02 (2g), without first receiving a request for release of the treatment record from the elder-adult-at-risk agency, adult-at-risk agency, or county department.

SB153, s. 23 Section 23. 51.40 (2) (a) 1. of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,12,13 51.40 (2) (a) 1. `Commitment or protective placement or protective services.' If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06, 2003 stats., or s. 55.12, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. After notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection, the court may make a specific finding of a county of residence. If any affected county or party objects to the court's proposed finding, the county or party may request the department to make a determination under par. (g). Any transfer of venue may be suspended until the department's determination is final.

SB153, s. 24 Section 24. 51.40 (2) (a) 2. of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,13,5 51.40 (2) (a) 2. `Placement by a county.' Except for the provision of emergency services under s. 51.15, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) and (12), emergency protective services under s. 55.13, or emergency protective placement under s. 55.135, if a county department or an agency of a county department places or makes arrangements for placement of the individual into a facility, the individual is a resident of the county of that county department. Any agency of the county department is deemed to be acting on behalf of the county department in placing or making arrangements for placement. Placement of an individual by a county department or an agency of a county department in a facility outside the jurisdiction of the county department or agency does not transfer the individual's legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for his or her immediate needs under s. 51.15, 51.20, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) or (12), or ch. 54 or 55, without becoming the individual's county of residence.

SB153, s. 25 Section 25. 51.42 (3) (e) of the statutes, as affected by Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB153,13,21 51.42 (3) (e) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of community programs or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of community programs or tribal agency, with a resource center, a care management organization, or a family care district, or with any person providing services to the client under a purchase of services contract with the county department of community programs or tribal agency or with a resource center, care management organization, or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of community programs or tribal agency to coordinate the delivery of services to the client. Any agency releasing information under this paragraph shall document that a request was received and what information was provided.

SB153, s. 26 Section 26. 51.437 (4r) (b) of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB153,14,13 51.437 (4r) (b) Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of developmental disabilities services or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of developmental disabilities services or tribal agency, with a resource center, a care management organization, or a family care district, or with any person providing services to the client under a purchase of services contract with the county department of developmental disabilities services or tribal agency or with a resource center, a care management organization, or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of developmental disabilities services or tribal agency to coordinate the delivery of services to the client. Any agency releasing information under this paragraph shall document that a request was received and what information was provided.

SB153, s. 27 Section 27. 54.01 (8) of the statutes, as affected by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB153,14,23 54.01 (8) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for individuals with mental retardation, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.

SB153, s. 28 Section 28. 54.01 (13) of the statutes is amended to read:

SB153,15,6 54.01 (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 s. 45.50 at the time of the decedent's death.

SB153, s. 29 Section 29. 54.10 (3) (d) of the statutes is amended to read:

SB153,15,15 54.10 (3) (d) Before appointing a guardian under this subsection, declaring incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual's competency to exercise legal rights and may obtain assistance in the manner provided in s. 55.06 (8) s. 55.11 (1) whether or not protective placement is made.

SB153, s. 30 Section 30. 54.15 (intro.) of the statutes is amended to read:

SB153,15,20 54.15 Selection of guardian; nominations; preferences; other criteria. (intro.) The court shall do one of the following and shall consider all of the following nominations, applicable preferences, and criteria in determining who is appointed as guardian:

SB153, s. 31 Section 31. 54.15 (5) of the statutes is amended to read:

SB153,16,2 54.15 (5) Parent of a proposed ward. If one or both of the parents of a minor or an individual with developmental disability or with serious and persistent mental illness are suitable and willing, the court shall appoint one or both as guardian unless the court finds that the appointment is not in the proposed ward,s ward's best interest. The court shall consider a proposed ward's objection to the appointment of his or her parent.

SB153, s. 32 Section 32. 54.15 (6) of the statutes is amended to read:

SB153,16,12 54.15 (6) Testamentary nomination by proposed ward's parents. Subject to the rights of a surviving parent, a parent may by will nominate a guardian and successor guardian of the person or estate for any of his or her minor children who is in need of guardianship, unless the court finds that appointment of the guardian or successor guardian is not i in the minor's best interests. For an individual who is aged 18 or older and is found to be in need of guardianship by reason of a developmental disability or serious and persistent mental illness, a parent may by will nominate a testamentary guardian. The parent may waive the requirement of a bond for such an estate that is derived through a will.

SB153, s. 33 Section 33. 54.19 (1) of the statutes is amended to read:

SB153,16,19 54.19 (1) Take possession of the ward's real and personal property, of any rents, income, and benefits accruing from the property, and of any proceeds arising from the sale, mortgage, lease, or exchange of the property, and prepare an inventory of these. Subject to this possession, the title of all the income and assets of the ward and the increment and proceeds of the income and assets of the ward remains vested in the ward and is not vested in the guardian.

SB153, s. 34 Section 34. 54.19 (8) of the statutes is amended to read:

SB153,16,25 54.19 (8) File, with the register of deeds of any county in which the ward possesses real property of which the guardian has actual knowledge, a sworn and notarized statement that specifies the legal description of the property, the date that the ward is determined to be an incompetent, and the name, address, and telephone number of the ward's guardian and any surety on the guardian's bond.

SB153, s. 35 Section 35. 54.25 (1) (a) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,17,9 54.25 (1) (a) Make an annual report on the condition of the ward to the court that ordered the guardianship and to the county department designated under s. 55.02 (2). That county department shall develop reporting requirements for the guardian of the person. The report shall include the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement as to whether or not the ward is living in the least restrictive environment consistent with the needs of the ward.

SB153, s. 36 Section 36. 54.25 (1) (b) (intro.) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,17,13 54.25 (1) (b) (intro.) Endeavor to secure any necessary care or services for the ward that are in the ward's best interests, based on all of the following:

SB153, s. 37 Section 37. 54.25 (2) (b) 4. of the statutes is amended to read:

SB153,17,18 54.25 (2) (b) 4. To protest a residential placement made under s. 55.05 (5) s. 55.055, and to be discharged from a residential placement unless the individual is protectively placed under s. 55.06 ch. 55 or the elements requirements of s. 55.06 (11) s. 55.135 (1) are present met.

SB153, s. 38 Section 38. 54.25 (2) (c) 4. and 5. of the statutes are consolidated and renumbered 54.25 (2) (c) 4.

SB153, s. 39 Section 39. 54.25 (2) (d) 2. a. of the statutes is renumbered 54.25 (2) (d) 2. ac. and amended to read:

SB153,18,17 54.25 (2) (d) 2. ac. 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) (2) (b), the power to give informed consent, if in the ward's best interests, to voluntary or the involuntary administration of a medical examination, medication other than psychotropic medication, and medical 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 involuntary administration of a medical examination, medication other than psychotropic medication, or medical treatment, other than psychotropic medication, is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication , or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.

SB153, s. 40 Section 40. 54.25 (2) (d) 2. n. of the statutes is amended to read:

SB153,18,20 54.25 (2) (d) 2. n. The power to apply petition for protective placement under s. 55.06 55.075 or for commitment under s. 51.20 or 51.45 (13) for the ward.

SB153, s. 41 Section 41. 54.25 (4) (a) of the statutes is repealed.

SB153, s. 42 Section 42. 54.25 (4) (b) of the statutes is renumbered 54.25 (2) (d) 2. ab. and and amended to read:

SB153,19,17 54.25 (2) (d) 2. ab. A guardian may, without court approval, 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 (2) (b), the power to give an informed consent to the voluntary receipt by the guardian's ward of a medical examination, medication, including any appropriate psychotropic medication, and medical treatment that is in the ward's best interest, if the guardian has first made a good-faith attempt to discuss with the ward the voluntary receipt of the examination, medication, or treatment and if the ward does not protest. For purposes of this subd. 2. ab., "protest" means, with respect to the voluntary receipt of a medical examination, medication, including appropriate psychotropic medication, or medical treatment, make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of the medical examination, medication, or medical treatment. "Protest" does not mean a discernible negative response to a proposed method of administration of the medical examination, medication, or medical treatment. In determining whether a medical examination, medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medical examination, medication, or treatment and the likely benefits and side effects of the medical examination, medication, or treatment.

SB153, s. 43 Section 43. 54.36 (1) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,20,17 54.36 (1) Whenever it is proposed to appoint a guardian on the ground that a proposed ward allegedly has incompetency or is a spendthrift, a physician or psychologist, or both, shall examine the proposed ward and furnish a written report stating the physician's or psychologist's professional opinion regarding the presence and likely duration of any medical or other condition causing the proposed ward to have incapacity or to be a spendthrift. The privilege under s. 905.04 does not apply to the report. The petitioner shall provide a copy of the report to the proposed ward or his or her counsel, the guardian ad litem, and the petitioner's attorney, if any. Prior to the examination on which the report is based, the guardian ad litem, physician, or psychologist shall inform the proposed ward that statements made by the proposed ward may be used as a basis for a finding of incompetency or a finding that he or she is a spendthrift, that he or she has a right to refuse to participate in the examination, absent a court order, or speak to the physician or psychologist, and that the physician or psychologist is required to report to the court even if the proposed ward does not speak to the physician or psychologist. The issuance of such a warning to the proposed ward prior to each examination establishes a presumption that the proposed ward understands that he or she need not speak to the physician or psychologist. Nothing in this section prohibits the use of a report by a physician or psychologist that is based on an examination of the proposed ward by the physician or psychologist before filing the petition for appointment of a guardian, but the court will consider the recency of the report in determining whether the report sufficiently describes the proposed ward's current state and in determining the weight to be given to the report.

SB153, s. 44 Section 44. 54.38 (2) (a) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,21,4 54.38 (2) (a) On the proposed ward or ward by personal service and an existing guardian, if any, by personal service or by registered or certified mail at least 10 days before the time set for hearing. If the proposed ward or ward is in custody or confinement, the petitioner shall have notice served by registered or certified mail on the proposed ward's or ward's custodian, who shall immediately serve it on the proposed ward or ward. The process server or custodian shall inform the proposed ward or ward of the complete contents of the notice and petition, motion, or other required document; certify on the notice that the process server or custodian served and informed the proposed ward or ward; and return the certificate and notice to the court.

SB153, s. 45 Section 45. 54.40 (1) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,21,15 54.40 (1) Appointment. The court shall appoint a guardian ad litem when a petition for appointment of a guardian is brought under s. 54.34 (1), when a petition for receipt and acceptance of a foreign guardianship is brought under s. 54.34 (3), to review the scope of a guardianship, to provide protective placement to an individual or order protective services under ch. 55, to review any protective placement under s. 55.18, to terminate a protective placement under s. 55.17, to expand an order of guardianship under s. 54.63, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, or at any other time that the court determines it is necessary.

SB153, s. 46 Section 46. 54.40 (4) (am) of the statutes is repealed.

SB153, s. 47 Section 47. 54.40 (4) (ar) of the statutes is repealed.

SB153, s. 48 Section 48. 54.40 (4) (c) of the statutes is amended to read:

SB153,21,22 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 suitability of each individual interviewed to serve as guardian and concerning the report statement under s. 54.15 (8).

SB153, s. 49 Section 49. 54.40 (4) (dm) of the statutes is repealed.

SB153, s. 50 Section 50. 54.40 (4) (ds) of the statutes is amended to read:

SB153,22,4 54.40 (4) (ds) Notify the guardian of the right to be present at and participate in the hearing, to present and cross-examine witnesses, to receive a copy of any evaluation under s. 55.11 (1) (intro.) or (2), and to secure and present a report on an independent evaluation under s. 880.33 (2) (b) s. 54.42 (3).

SB153, s. 51 Section 51. 54.42 (1) (a) (intro.) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,22,8 54.42 (1) (a) (intro.) The proposed ward or ward has the right to counsel, if any of the following occurs:

SB153, s. 52 Section 52. 54.42 (1) (c) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,22,15 54.42 (1) (c) If par. (a) 1., 2., or 3. applies but the proposed ward or ward is unable to obtain legal counsel, the court shall appoint legal counsel. If the proposed ward or ward is represented by counsel appointed under s. 977.08 in a proceeding under a petition for protective placement brought under s. 55.075, the court shall order the counsel appointed under s. 977.08 to represent the proposed ward or ward.

SB153, s. 53 Section 53. 54.44 (1) (a) of the statutes is amended to read:

SB153,22,21 54.44 (1) (a) Time of hearing for petition. A petition for guardianship, other than a petition under par. (b) or (c) 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 or 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.

SB153, s. 54 Section 54. 54.44 (2) of the statutes is amended to read:

SB153,22,25 54.44 (2) Standard of proof. Any determination by the court as to whether the proposed ward or ward is a minor, is incompetent, or is a spendthrift shall be by clear and convincing evidence.

SB153, s. 55 Section 55. 54.44 (4) (title) of the statutes is amended to read:

SB153,23,2 54.44 (4) (title) Presence of proposed ward or ward.

SB153, s. 56 Section 56. 54.44 (4) (a) of the statutes is amended to read:

SB153,23,16 54.44 (4) (a) Adult proposed ward or ward. The petitioner shall ensure that the proposed ward or ward attends the hearing unless the attendance is waived by the guardian ad litem. In determining whether to waive attendance by the proposed ward or ward, the guardian ad litem shall consider the ability of the proposed ward or ward to understand and meaningfully participate, the effect of the proposed ward's attendance of the proposed ward or ward on his or her physical or psychological health in relation to the importance of the proceeding, and the proposed ward's expressed desires of the proposed ward or ward. If the proposed ward or ward is unable to attend the hearing because of residency in a nursing home or other facility, physical inaccessibility, or a lack of transportation and if the proposed ward or ward, guardian ad litem, advocate counsel, or other interested person so requests, the court shall hold the hearing in a place where the proposed ward or ward may attend.

SB153, s. 57 Section 57. 54.44 (4) (b) of the statutes is amended to read:

SB153,23,19 54.44 (4) (b) Minor proposed ward or ward. A minor proposed ward or ward is not required to attend the hearing.

SB153, s. 58 Section 58. 54.44 (5) of the statutes is created to read:

SB153,23,25 54.44 (5) Privacy of hearing. Every hearing under this chapter shall be closed, unless the proposed ward or ward or his or her attorney acting with the proposed ward's or ward's consent or the attorney for a foreign ward moves that it be open. If the hearing is closed, only interested persons, their attorneys, and witnesses may be present.

SB153, s. 59 Section 59. 54.44 (5m) (title) of the statutes is created to read:

SB153,24,2 54.44 (5m) (title) Participation by interested persons.

SB153, s. 60 Section 60. 54.46 (3) (a) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,24,8 54.46 (3) (a) Petitioner's attorney fees and costs. If a guardian is appointed, the court shall award from the ward's income and assets payment of the petitioner's reasonable attorney fees and costs unless the court finds, after considering all of the following, that it would be inequitable to do so:

SB153,24,10 1. The petitioner's interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship.

SB153,24,12 2. The ability of the ward's estate to pay the petitioner's reasonable attorney fees and costs.

SB153,24,13 3. Whether the guardianship was contested and, if so, the nature of the contest.

SB153,24,16 4. Whether the ward 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 engaged in other advance planning for financial and health care decision making.

SB153,24,17 5. Any other factors that the court considers to be relevant.

SB153, s. 61 Section 61. 54.48 of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is amended to read:

SB153,24,24 54.48 Protective placement and protective services. A finding of incompetency and appointment of a guardian under this chapter is not grounds for involuntary protective placement or the provision of protective services. Protective A protective placement and the provision of protective services may be made only in accordance with ch. 55.

SB153, s. 62 Section 62. 54.52 (2) of the statutes is amended to read:

SB153,25,13 54.52 (2) At any hearing conducted under this section the court may designate one or more standby guardians of the person or estate whose appointment shall become effective immediately upon the death, unwillingness, or inability to act, or resignation or court's removal of the initially appointed guardian or during a period, as determined by the initially appointed guardian, when the initially appointed guardian or the court is temporarily unable to fulfill his or her duties, including during an extended vacation or illness. The powers and duties of the standby guardian shall be the same as those of the initially appointed guardian. The standby guardian shall receive a copy of the court order establishing or modifying the initial guardianship, and the order designating the standby guardian. Upon assuming office, the standby guardian shall so notify the court. Upon notification, the court shall issue new letters of guardianship that specify that the standby guardianship is permanent or that specify the time period for a limited standby guardianship.

SB153, s. 63 Section 63. 54.62 (1) (title) of the statutes is amended to read: