SB153: Bill Text

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SB153, s. 44 Section 44. 54.38 (2) (a) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read: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

SB153,25,15 54.62 (1) (title) Annual reports accounts.

SB153, s. 64 Section 64. 54.64 (3) (a) of the statutes is amended to read:

SB153,25,20 54.64 (3) (a) The court adjudicates a ward who was formerly found to be incompetent to be no longer incompetent or a ward who was formerly found to be a spendthrift to be capable of handling his or her income and assets, or terminates the guardianship under sub. (2) (d).

SB153, s. 65 Section 65. 54.75 of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,26,3 54.75 Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 51.30 or 55.22 or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.

SB153, s. 66 Section 66. 54.93 (1) (b) of the statutes is amended to read:

SB153,26,8 54.93 (1) (b) In this section, "3rd party" is means a person other than a bank, broker, transfer agent or issuer who with respect to a security held by an incompetent or spendthrift effects a transaction otherwise than directly with the incompetent or spendthrift.

SB153, s. 67 Section 67. 55.01 (1f) of the statutes is amended to read:

SB153,26,13 55.01 (1f) "Adult-at-risk agency" means the agency designated by the county board of supervisors under s. 55.043 (1) s. 55.043 (1d) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under s. 55.043.

SB153, s. 68 Section 68. 55.01 (1v) of the statutes, as created by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB153,26,19 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.

SB153, s. 69 Section 69. 55.01 (2) of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB153,27,4 55.01 (2) "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. 70 Section 70. 55.01 (6p) of the statutes is amended to read:

SB153,27,7 55.01 (6p) "Protective placement unit" means a ward, wing, or other designated part of a protective placement facility.

SB153, s. 71 Section 71. 55.01 (6r) (k) of the statutes is amended to read:

SB153,27,14 55.01 (6r) (k) Any services that, when provided to an individual with developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacity, keep the individual safe from abuse, financial exploitation, neglect, or misappropriation of property self-neglect or prevent the individual from experiencing deterioration or from inflicting harm on himself or herself or another person.

SB153, s. 72 Section 72. 55.01 (6v) of the statutes, as created by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,27,25 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 or of alcohol or drug dependence.

SB153, s. 73 Section 73. 55.02 of the statutes, as affected by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB153,28,4 55.02 Protective services and protective placement: duties. (1) Department duties. (a) The department shall do all of the following:

SB153,28,8 1. Cooperate with county departments to develop and operate a coordinated, statewide system for protective services and protective placement. The protective services and protective placement system shall be designed to encourage independent living and to avoid protective placement whenever possible.

SB153,28,10 2. Monitor and supervise the implementation and operation of the protective services and protective placement system.

SB153,28,12 3. Provide technical assistance to county departments providing protective services and protective placement.

SB153,28,13 4. Evaluate the protective services and protective placement system.

SB153,28,15 (b) The department may provide protective services and protective placement directly or contract for the provision of protective services or protective placement.

SB153,28,23 (2) County department duties. (a) The chairperson of each county board of supervisors shall designate a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 that is providing services in the county on its own or through a joint mechanism with another county department or county to have the responsibility for planning for the provision of protective services and protective placement and for directly providing protective services, protective placement, or both, or entering into a contract under s. 46.036 with a responsible agency for the provision of protective services, protective placement, or both.

SB153,28,25 (b) In addition to the responsibilities specified in par. (a), the county department shall:

SB153,29,1 1. Monitor and evaluate protective services and protective placements.

SB153,29,3 2. Prepare and submit reports required by the department, or by a court if protective services or protective placement are ordered by a court.

SB153,29,5 3. Develop requirements for submittal by guardians of the person of reports to the county department under s. 54.25 (1) (a).

SB153,29,8 4. Designate at least one appropriate medical facility or protective placement facility as an intake facility for the purpose of emergency protective placements under s. 55.135.

SB153,29,11 (3) Corporation counsel. The corporation counsel of the county in which the petition is brought may or, if requested by the court, shall assist in conducting proceedings under this chapter.

SB153, s. 74 Section 74. 55.03 (1) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB153,29,16 55.03 (1) Agency as both guardian and provider prohibited. No agency acting as a guardian appointed under ch. 880, 2003 stats., or ch. 54 may be a provider of protective services or protective placement for its ward under this chapter.

SB153, s. 75 Section 75. 55.03 (3) of the statutes is amended to read:

SB153,29,22 55.03 (3) Guardian authority and responsibility applicable to parent of minor. Where any responsibility or authority is created under this chapter upon or in relation to a guardian, the responsibility or authority is deemed to apply to a parent or person in the place of a parent in the case of a minor who is or who is alleged to be developmentally disabled have a developmental disability.

SB153, s. 76 Section 76. 55.043 (1r) (a) 2. of the statutes is amended to read:

SB153,30,9 55.043 (1r) (a) 2. If an agent or employee of an adult-at-risk agency required to refer under this subsection is the subject of a report, or if the adult-at-risk agency or an agency under contract with the county department determines that the relationship between the adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the adult-at-risk agency shall, after taking any action necessary to protect the adult at risk, notify the department. Upon receipt of the notice, the department or a county department under s. 46.215, 46.22, 51.42, or 51.437 designated by the department shall conduct an independent investigation. The powers and duties of a county department making the independent investigation are those given to an adult-at-risk agency under pars. (b) to (g) pars. (b) to (d) and sub. (6).

SB153, s. 77 Section 77. 55.043 (1r) (b) 2. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB153,30,14 55.043 (1r) (b) 2. Observation of or an interview with the adult at risk, in private to the extent practicable, and with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

SB153, s. 78 Section 78. 55.043 (1r) (c) 2. c. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB153,30,17 55.043 (1r) (c) 2. c. The examination is authorized by order of a court.

SB153, s. 79 Section 79. 55.043 (4) (am) of the statutes is amended to read:

SB153,30,24 55.043 (4) (am) Upon responding to a report, the adult-at-risk agency or the investigative agency shall determine whether the adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 46, 47, 59, 51, or 880 ch. 46, 47, 49, 51, and or 54. If provided, direct services shall be rendered under the least restrictive conditions necessary to achieve their objective.

SB153, s. 80 Section 80. 55.043 (4) (b) 1. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is amended to read:

SB153,31,4 55.043 (4) (b) 1. Initiate a protective services,, action or contact an investigative agency, as appropriate.