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55.135 Annotation When a placement extended past the 30-day limit under former s. 55.06 (11) (c) [now sub. (5)] before a final hearing was held, the court lost authority to extend the placement. In Matter of Guardianship of N. N. 140 Wis. 2d 64, 409 N.W.2d 388 (Ct. App. 1987).
55.135 Annotation Former s. 55.06 (11) (c) [now sub. (5)] required dismissal of the proceedings for failure to hold a permanent placement hearing within 30 days of the probable cause hearing; immediate refiling of the petition and emergency detention following dismissal without prejudice was impermissible. State ex. rel Sandra D. v. Getto, 175 Wis. 2d 490, 498 N.W.2d 893 (Ct. App. 1993).
55.135 Annotation An emergency protective placement must be based on personal observation by one of the individuals listed in former s. 55.06 (11) (a) [now sub. (1)]. Costs could not be assessed against the subject of an emergency placement proceeding that was outside the statutory guidelines. Ethelyn I.C. v. Waukesha County, 221 Wis. 2d 109, 584 N.W.2d 211 (Ct. App. 1998), 97-2236.
55.135 Annotation A circuit court loses competence if the hearing under former s. 55.06 (11) (b) [now sub. (4)] is not held within 72 hours after the person is first taken into custody. The filing of a new petition does not start the clock anew. Kindcare, Inc. v. Judith G. 2002 WI App 36, 250 Wis. 2d 817, 640 N.W.2d 839, 00-3450.
55.135 Note NOTE: The above annotations relate to protective placements under ch. 55, stats., prior to the revision of that chapter by 2005 Wis. Act 264.
55.14 55.14 Involuntary administration of psychotropic medication.
55.14(1)(1) In this section:
55.14(1)(a) (a) "Involuntary administration of psychotropic medication" means any of the following:
55.14(1)(a)1. 1. Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.
55.14(1)(a)2. 2. Forcibly restraining an individual to enable administration of psychotropic medication.
55.14(1)(a)3. 3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.
55.14(1)(b) (b) "Not competent to refuse psychotropic medication" means that, as a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to an individual, one of the following is true:
55.14(1)(b)1. 1. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives to accepting treatment.
55.14(1)(b)2. 2. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her condition in order to make an informed choice as to whether to accept or refuse psychotropic medication.
55.14(1)(c) (c) "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.
55.14(1)(d) (d) "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.
55.14(2) (2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service only under the requirements of this section.
55.14(3) (3) In addition to the other requirements of this chapter pertaining to petitions for protective services, a petition under this section shall allege that all of the following are true:
55.14(3)(a) (a) A physician has prescribed psychotropic medication for the individual.
55.14(3)(b) (b) The individual is not competent to refuse psychotropic medication.
55.14(3)(c) (c) The individual has refused to take the psychotropic medication voluntarily or attempting to administer psychotropic medication to the individual voluntarily is not feasible or is not in the best interests of the individual. If the petition alleges that the individual has refused to take psychotropic medication voluntarily, the petition shall identify the reasons, if known, for the individual's refusal to take psychotropic medication voluntarily. The petition also shall provide evidence showing that a reasonable number of documented attempts to administer psychotropic medication voluntarily using appropriate interventions that could reasonably be expected to increase the individual's willingness to take psychotropic medication voluntarily have been made and have been unsuccessful. If the petition alleges that attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual, the petition shall identify specific reasons supporting that allegation.
55.14(3)(d) (d) The individual's condition for which psychotropic medication has been prescribed is likely to be improved by administration of psychotropic medication and the individual is likely to respond positively to psychotropic medication.
55.14(3)(e) (e) Unless psychotropic medication is administered involuntarily, the individual will incur a substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability of physical harm, impairment, injury, or debilitation shall be evidenced by one of the following:
55.14(3)(e)1. 1. The individual's history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement agreement approved by a court under s. 51.20 (8) (bg), or commitment ordered under s. 51.20 (13).
55.14(3)(e)2. 2. Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.
55.14(4) (4) A petition under this section must include a written statement signed by a physician who has personal knowledge of the individual that provides general clinical information regarding the appropriate use of psychotropic medication for the individual's condition and specific data that indicates that the individual's current condition necessitates the use of psychotropic medication.
55.14(5) (5) The guardian ad litem appointed under s. 55.10 (4) (b) for an individual who is the subject of a petition under this section shall report to the court whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interests of the individual.
55.14(6) (6) If requested by an individual who is the subject of a petition under this section or anyone on his or her behalf, the individual has the right at his or her own expense, or if indigent at the expense of the county in which the petition is filed, to secure an independent medical or psychological examination relevant to the issues of whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interest of the individual, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.
55.14(7) (7) Upon the filing of a petition under this section, the court shall make a referral for appointment of legal counsel as provided under s. 55.105. A petition under this section shall be heard within 30 days after it is filed.
55.14(8) (8) The court may issue an order authorizing an individual's guardian to consent to involuntary administration of psychotropic medication to the individual and may order involuntary administration of psychotropic medication to the individual as a protective service, with the guardian's consent, if the court or jury finds by clear and convincing evidence that the allegations in the petition required under sub. (3) are true, all other requirements for involuntary administration of psychotropic medication under this section have been met, psychotropic medication is necessary for treating the condition described in the statement under sub. (4), and all other requirements of this chapter for ordering protective services have been met. An order under this section shall do all of the following:
55.14(8)(a) (a) Direct the development of a treatment plan for the individual specifying the protective services, including psychotropic medication as ordered by the treating physician, that the individual should receive. If the individual resides in a nursing home or hospital, the nursing home or hospital shall develop the treatment plan. If the individual resides elsewhere, the county department or an agency with which it contracts under s. 55.02 (2) shall develop the treatment plan. The treatment plan shall include a plan for the involuntary administration of psychotropic medication to the individual. The treatment plan is subject to the approval of the guardian and to review and approval by the court. If the court approves the plan, the court shall order the county department or an agency with which it contracts under s. 55.02 (2) to ensure that psychotropic medication is administered in accordance with the treatment plan.
55.14(8)(b) (b) Order the individual to comply with the treatment plan under par. (a). The order shall provide that if the individual fails to comply with provisions of the treatment plan that require the individual to take psychotropic medications, the medications may be administered involuntarily with consent of the guardian. The order shall specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of an individual shall specify that a person licensed under s. 441.06, 441.10, or 448.05 (2) or (5) shall be present at all times that psychotropic medication is administered in this manner and shall require the person or facility using forcible restraint to maintain records stating the date of each administration, the medication administered, and the method of forcible restraint utilized.
55.14(9) (9) If an individual who is subject to an order under this section is not in compliance with the order because he or she refuses to take psychotropic medication as ordered under the treatment plan, and it is necessary for the individual to be transported to an appropriate facility for forcible restraint for administration of psychotropic medication, the corporation counsel may file with the court a statement of the facts that constitute the basis of the noncompliance of the individual. The statement shall be sworn to be true and shall be based upon the information and belief of the person filing the statement. The statement shall be signed by the individual's guardian and by the director or designee of the county department or an agency with which it contracts under s. 55.02 (2) to develop and administer the treatment plan. Upon receipt of the statement of noncompliance, if the court finds by clear and convincing evidence that the individual has substantially failed to comply with the administration of psychotropic medication as ordered under the treatment plan, the court may issue an order authorizing the sheriff or any other law enforcement agency in the county in which the individual is found or in which it is believed that the individual may be present to take the individual into custody and transport him or her to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.
55.14(10) (10) Nothing in this section prohibits the involuntary administration of psychotropic medication as an emergency protective service under s. 55.13.
55.14(11) (11) The county department or an agency with which it contracts under s. 55.02 (2) shall provide to the department a copy of any order issued under this section that applies to any protectively placed individual in the county.
55.14(12) (12) The department shall annually submit to the legislature under s. 13.172 (2) a report regarding orders under this section.
55.14(13) (13) An order under this section is subject to annual review under s. 55.19.
55.14 History History: 2005 a. 264 ss. 165, 195; 2005 a. 387 ss. 121, 302; 2007 a. 20; 2007 a. 45; 2009 a. 180.
55.15 55.15 Transfer of an individual under a protective placement order.
55.15(1)(1)Transfers authorized. An individual under a protective placement order may be transferred between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility. The individual may not be transferred, under the protective placement order, to any facility for which commitment procedures are required under ch. 51.
55.15(2) (2)Who may transfer. A guardian, a county department or agency with which it contracts under s. 55.02 (2) that provided protective placement to the individual pursuant to the order of the court, the department, or a protective placement facility may transfer an individual under a protective placement order under the requirements of this section, notwithstanding the fact that a court order has named a specific facility for the protective placement of the individual.
55.15(3) (3)Consent of guardian required. No individual may be transferred under this section without the written consent of the individual's guardian, except in the case of an emergency transfer under sub. (5) (b).
55.15(4) (4)Consent of county department. No individual may be transferred under this section to a facility that is more costly to the county without the written consent of the county department, except in the case of an emergency transfer under sub. (5) (b).
55.15(5) (5)Notice of transfer.
55.15(5)(a)(a) Nonemergency transfer. A person or entity who initiates a transfer shall provide 10 days' prior written notice of a transfer to the court that ordered the protective placement and to each of the other persons and entities specified in sub. (2) who did not initiate the transfer. The notice of transfer shall include notice of the right of the individual under a protective placement, the individual's attorney, if any, or other interested person to petition the court for a hearing on the transfer.
55.15(5)(b) (b) Emergency transfer. If an emergency makes it impossible to provide the notice specified in par. (a) or to obtain the prior written consent of the guardian specified in sub. (3), the individual may be transferred without the prior written consent of the guardian and without the notice specified in par. (a). Written notice shall be provided immediately upon transfer to each of the persons and entities specified under sub. (2) who did not initiate the transfer. Notice shall also be provided to the court that ordered the protective placement within a reasonable time, not to exceed 48 hours from the time of transfer. The notice shall include notice of the right to file with the court under sub. (6) a petition objecting to the emergency transfer.
55.15(6) (6)Petition. An individual under protective placement, the individual's guardian, the individual's attorney, if any, or any other interested person may file a petition with the court objecting to a proposed transfer or to an emergency transfer made under sub. (5) (b). The petition shall specify the reasons for the person's objection to the transfer.
55.15(7) (7)Hearing.
55.15(7)(a)(a) The court shall order a hearing within 10 days after the filing of a petition under sub. (6).
55.15(7)(b) (b) The court shall notify the petitioner, the individual under protective placement, the individual's guardian, the individual's attorney, if any, and the county department of the time and place of the hearing.
55.15(7)(c) (c) A guardian ad litem shall be appointed to represent the individual under protective placement at the hearing. If the individual is an adult who is indigent, the county in which the hearing is held shall be liable for guardian ad litem fees. If the individual is a minor, the individual's parents or the county in which the hearing is held shall be liable for guardian ad litem fees as provided in s. 48.235 (8).
55.15(7)(cm) (cm) The court shall refer the individual under protective placement for appointment of legal counsel as provided under s. 55.105 if the individual, the individual's guardian ad litem, or anyone on the individual's behalf requests that counsel be appointed for the individual.
55.15(7)(d) (d) The petitioner, individual under protective placement, the individual's guardian, the individual's guardian ad litem, and the individual's attorney, if any, have the right to attend the hearing and to present and cross-examine witnesses.
55.15(8) (8)Standard for transfer. In determining whether to approve a proposed transfer or an emergency transfer made under sub. (5) (b), the court shall consider all of the following:
55.15(8)(a) (a) Whether the requirements of s. 55.12 (2) and (6) are met.
55.15(8)(b) (b) Whether the protective placement is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5) or, if the transfer is to an intermediate facility or nursing facility, is in the most integrated setting, as defined in s. 46.279 (1) (bm).
55.15(8)(c) (c) Whether the protective placement is in the best interests of the person under protective placement.
55.15(9) (9)Order relating to transfer. Following the hearing under sub. (7), the court shall do one of the following:
55.15(9)(a) (a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's proposed protective placement does not meet the standards for transfer under sub. (8), the court shall issue an order prohibiting the transfer. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards under sub. (8) in support of the denial of the transfer.
55.15(9)(b) (b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the proposed transfer meets the standard under sub. (8), the court shall approve the proposed transfer. The court may order protective services along with transfer of protective placement. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards in s. 55.08 (1) in support of the need for continued protective placement.
55.15(9)(c) (c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17.
55.15 History History: 2005 a. 264; 2007 a. 20, 45.
55.15 Annotation Based on principles of comity and the orderly administration of justice, this case sets forth standards for Wisconsin courts to follow when confronted with the transfer of interstate guardianships. Grant County Department of Social Services v. Unified Board of Grant and Iowa Counties, 2005 WI 106, 283 Wis. 2d 258, 700 N.W.2d 863, 03-0634.
55.15 Annotation Section 55.06 (9) (b), 2003 stats., did not authorize a guardian to move the ward out of state, change the ward's domicile, and transfer the guardianship to Connecticut, all without prior approval. Linda L. v. Collis, 2006 WI App 105, 294 Wis. 2d 637, 718 N.W.2d 205, 05-0494.
55.15 Note NOTE: The above annotations relate to protective placements under ch. 55, stats., prior to the revision of that chapter by 2005 Wis. Act 264.
55.16 55.16 Modification of an order for protective placement or protective services.
55.16(1) (1)Use of transfer provisions. If a petitioner is an entity authorized under s. 55.15 (2) to transfer an individual under a protective placement and the modification sought is a transfer of an individual between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility that is not a psychiatric facility, the petitioner may utilize the procedure in s. 55.15 in lieu of the procedure under this subsection.
55.16(2) (2)Petition.
55.16(2)(a)(a) Filing; services. Subject to par. (d), an individual under protective placement or receiving protective services, the individual's guardian, the individual's legal counsel or guardian ad litem, if any, the department, the county department that placed the individual or provided the protective services under an order of the court, an agency with which the county department contracts under s. 55.02 (2), or any interested person may file a petition at any time for modification of an order for protective services or protective placement. The petition shall be served on the individual, the individual's guardian, the individual's legal counsel and guardian ad litem, if any, and the county department.
55.16(2)(b) (b) Modification of an order for protective placement; allegations. A petition for modification of an order for protective placement shall make one of the following allegations:
55.16(2)(b)1. 1. That the protective placement is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5).
55.16(2)(b)2. 2. That a protective placement in a facility with a higher level of restrictiveness would be more consistent with the requirements of s. 55.12 (3), (4), and (5).
55.16(2)(b)3. 3. That a protective placement in a different facility with the same level of restrictiveness as the current placement would be more consistent with the requirements of s. 55.12 (4) and (5) for reasons unrelated to the level of restrictiveness.
55.16(2)(c) (c) Modification of an order for protective services; allegations.
55.16(2)(c)1.1. A petition for modification of an order for protective services, other than an order under s. 55.14, shall allege that the protective services are not provided in the least restrictive environment or manner that is consistent with the requirements of s. 55.12 (3), (4), and (5).
55.16(2)(c)2. 2. A petition for modification of an order under s. 55.14 shall allege that modification of the order or the treatment plan for the individual would be in his or her best interests.
55.16(2)(d) (d) Residents of southern center. The department may not file a petition under par. (a) for modification of an order for protective placement to transfer a resident of the southern center for the developmentally disabled to a less restrictive setting unless the resident's guardian provides explicit written approval and consent for the transfer under s. 51.35 (1) (dm).
55.16(3) (3)Hearing.
55.16(3)(a)(a) The court shall order a hearing within 21 days after the filing of a petition under sub. (2), except that the court is not required to order a hearing if a hearing on a court-ordered protective placement for the individual or on a petition for court-ordered protective services or transfer of protective placement with respect to the individual has been held within the previous 6 months.
55.16(3)(b) (b) The court may extend the 21-day limitation in par. (a) if requested by the individual or the individual's guardian, guardian ad litem, or legal counsel.
55.16(3)(c) (c) The hearing shall be subject to s. 55.10.
55.16(4) (4)Order modification for individual under protective placement. After a hearing under sub. (3) on a petition for modification of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:
55.16(4)(a) (a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order continuation of the protective placement in the facility in which the individual resides at the time of the hearing.
55.16(4)(b) (b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the protective placement of the individual is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order transfer of the individual to a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5). In lieu of ordering transfer of the individual to a specific facility, the court may order the county department of the individual's residence to develop or recommend a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5), and arrange for the individual's transfer to that protective placement within 60 days after the court's order. The court may extend this time period to permit development of a protective placement. The court may order protective services along with transfer of protective placement.
55.16(4)(c) (c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17 (3) (c).
55.16(5) (5)Order modification for individual receiving court-ordered protective services.
55.16(5)(a)(a) After a hearing under sub. (3) on a petition for modification of an order for protective services, other than an order under s. 55.14, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:
55.16(5)(a)1. 1. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the current protective services are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall continue the order for protective services.
55.16(5)(a)2. 2. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order protective services that are more consistent with those requirements. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3), (4), and (5).
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