2005 Wisconsin Act 264

264,138 Section 138 . 55.06 (9) (d) of the statutes is repealed.

264,139 Section 139 . 55.06 (9) (e) of the statutes is repealed.

Note: Sections 138 and 139 repeal provisions that have been found unconstitutional.

264,140 Section 140. 55.06 (10) (a) 1. of the statutes is renumbered 55.18 (1) (a) (intro.) and amended to read:

55.18 (1) (a) (intro.) The county department or any agency which is responsible for a protective placement of the individual's county of residence shall, except as provided in sub. (1m), annually review the status of each person placed at least once every 12 months from the date of admission. The court in its order of placement may, however, require that such review be conducted more frequently individual who has been provided protective placement. The review shall include in writing an a visit to the individual and a written evaluation of the physical, mental and social condition of each such person, and the individual and the service needs of the individual. The review shall be made a part of the permanent record of such person. The review shall include recommendations for discharge or placement in services which place less restrictions on personal freedom, where appropriate. The results of the review shall be furnished to the department in such form as the department may require and shall be furnished to the court that ordered the placement and to the person's guardian. the individual. The county department shall inform the guardian of the individual of the review at the time the review is made and shall, before completing a report of the review, invite the individual and the guardian to submit comments or information concerning the individual's need for protective placement or protective services. Not later than the first day of the 11th month after the initial order is made for protective placement for an individual and, except as provided in par. (b), annually thereafter, the county department shall do all of the following:

Note: Renumbers and amends provisions relating to annual review of protective placement. Provides that the individual's guardian must be notified of the review and invite the individual and the guardian to submit comments or information concerning the individual's need for protective placement or protective services.

Requires the county department of the county of residence of a protectively placed individual to annually review the status of the individual, as required by State ex. rel. Watts and County of Dunn v. Goldie H., as described in the prefatory note. Specifies the required elements of the review, including a visit to the individual and a written evaluation of the individual's condition.

264,141 Section 141. 55.06 (10) (a) 2. of the statutes is renumbered 55.18 (1) (ar) and amended to read:

55.18 (1) (ar) If the person individual has a developmental disability and is protectively placed in an intermediate facility or a nursing facility, the agency that is responsible for the protective placement shall notify in writing the county department of the county of residence of the person individual that is participating in the program under s. 46.278 or, if s. 46.279 (4m) applies to the person individual, the department, at least 120 days before the review. The county department so notified or, if s. 46.279 (4m) applies, the department's contractor, shall develop a plan under s. 46.279 (4) and furnish the plan to the court that ordered the protective placement and to the person's individual's guardian. The court shall order that the person individual be transferred to the noninstitutional community setting in accordance with the plan unless the court finds that protective placement in the intermediate facility or nursing facility is the most integrated setting, as defined in s. 46.279 (1) (bm), that is appropriate to the needs of the person individual taking into account information presented by all affected parties.

264,142 Section 142. 55.06 (10) (b) of the statutes is renumbered 55.17 (1) and amended to read:

55.17 (1) Petition. The An individual, the individual's guardian or guardian ad litem, the department, an agency, a guardian or a ward a county department or agency with it contracts under s. 55.02 (2), or any other interested person may file a petition at any time petition the court for modification or for termination of a an order for protective placement. A or protective services. The petition shall be served on the individual; the individual's guardian; the individual's attorney and guardian ad litem, if any; and the county department. The petition to terminate a protective placement shall allege that the conditions which warranted placement as specified in sub. (2) are no longer present. A petition shall be heard if a hearing has not been held within the previous 6 months but a hearing may be held at any time in the discretion of the court. The petition shall be heard within 21 days of its receipt by the court individual no longer meets the standards under s. 55.08 (1) for court-ordered protective placement or under s. 55.08 (2) for court-ordered protective services.

Note: Revises the provisions relating to a petition for protective services or placement. These provisions expand who may petition and who must be served with the petition; and remove provisions regarding hearing on the petition, which are placed in a separate provision.

264,143 Section 143. 55.06 (10) (c) of the statutes is repealed.

Note: Repeals a provision in current law that provides that termination of a guardianship or attainment of the age of majority by a minor terminates a protective placement order.

264,144 Section 144. 55.06 (11) (a) of the statutes is renumbered 55.135 (1) and amended to read:

55.135 (1) If, from personal observation of, or a reliable report made by a person who identifies himself or herself to, a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a board designated under s. 55.02 or an agency designated by it county department or an agency with which it contracts under s. 55.02 (2), it appears probable that an individual will suffer irreparable injury or death or will present is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disabilities, infirmities of aging, chronic degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed, the person making the observation or to whom the report is made may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making emergency protective placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations or reports made to the person and the basis for emergency placement. The statement shall be filed with the director of the facility and shall also be filed with any petition under sub. (2) s. 55.075. At the time of emergency protective placement the individual shall be informed by the director of the facility or the director's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a child minor or is indigent. The director or designee shall also provide the individual with a copy of the statement by the person making emergency protective placement.

Note: Changes a provision in current law regarding emergency protective placement, by providing that, in addition to the personal observation of a law enforcement officer, firefighter, guardian or authorized representative of a county department, detention may be made based on a reliable report made to one of these persons.

264,145 Section 145. 55.06 (11) (am) of the statutes is renumbered 55.135 (2) and amended to read:

55.135 (2) Whoever signs a statement under par. (a) sub. (1) knowing the information contained therein in the statement to be false is guilty of a Class H felony.

264,146 Section 146. 55.06 (11) (ar) of the statutes is renumbered 55.135 (3) and amended to read:

55.135 (3) A person who acts in accordance with this subsection section is not liable for any actions performed in good faith.

264,147 Section 147. 55.06 (11) (b) of the statutes is renumbered 55.135 (4) and amended to read:

55.135 (4) Upon detention When an individual is detained under this section, a petition shall be filed under sub. (2) s. 55.075 by the person making such the emergency protective placement and a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause to believe the grounds for protective placement under sub. (2) s. 55.08 (1). The sheriff or other person making emergency protective placement under par. (a) sub. (1) shall provide the individual with written notice and orally inform him or her of the time and place of the preliminary hearing. If the detainee is not under guardianship, a petition for guardianship shall accompany the protective placement petition, except in the case of a minor who is alleged to be developmentally disabled. In the event that protective placement is not appropriate, the court may elect to treat a petition for protective placement as a petition for commitment under s. 51.20 or 51.45 (13).

264,148 Section 148. 55.06 (11) (c) of the statutes is renumbered 55.135 (5) and amended to read:

55.135 (5) Upon a finding of probable cause under par. (b) sub. (4), the court may order temporary protective placement up to 30 days pending the hearing for a permanent protective placement, or the court may order such protective services as may be required. If the court orders under this subsection an individual who has a developmental disability is ordered, under this paragraph, to be temporarily placed receive temporary protective placement in an intermediate facility or in a nursing facility, and if at the hearing for permanent protective placement the court orders that the individual be protectively placed provide protective placement, the court may, before commencement of permanent protective placement, extend the temporary protective placement order for not more than 90 days if necessary for the county department that is participating in the program under s. 46.278 or, if s. 46.279 (4m) applies, the department's contractor to develop the plan required under s. 46.279 (4).

264,149 Section 149. 55.06 (11) (d) of the statutes is renumbered 55.135 (6) and amended to read:

55.135 (6) A law enforcement agency, fire department, or county department designated under s. 55.02 or an agency designated by that county department or agency with which it contracts under s. 55.02 (2) shall designate at least one employee authorized to take an individual into custody under this subsection section who shall attend the in-service training on emergency detention and emergency protective placement offered by a county department of community programs under s. 51.42 (3) (ar) 4. d., if the county department of community programs serving the designated employee's jurisdiction offers an in-service training program.

264,150 Section 150. 55.06 (12) of the statutes is renumbered 55.055 (5) and amended to read:

55.055 (5) When If a ward lives with the his or her guardian, the guardian may make temporary protective placement of the ward. Placement may be made, to provide the guardian with a vacation or to temporarily release the guardian temporarily for a family emergency. Such The temporary protective placement may be made for not more than 30 days but the court may, upon application, grant an additional period not to exceed 60 days in all. The application shall include such any information as that the court may reasonably deem necessary. When reviewing the application, the court shall provide the least restrictive temporary protective placement which that is consistent with the needs of the ward.

264,151 Section 151. 55.06 (14) of the statutes is renumbered 55.175 and amended to read:

55.175 Discharge from protective placement. Prior to discharge from a protective placement, the appropriate board which is responsible for placement county department shall review the need for provision of continuing protective services or for continuation of full or limited guardianship or provision for such a guardianship if the individual has no guardian. Recommendation shall be made The county department shall make a recommendation to the court if the recommendation includes a course of action for which court approval would be required. Prior to discharge from any state institute or center for the developmentally disabled, the department shall make such the review under s. 51.35 (7).

264,152 Section 152. 55.06 (15) of the statutes is repealed.

Note: Repeals a provision regarding the responsibilities of a guardian to the ward, since these provisions are present in ch. 880, stats.

264,153 Section 153. 55.06 (16) of the statutes is renumbered 55.21 and amended to read:

55.21 Centers for the developmentally disabled. Placements Protective placements to centers for the developmentally disabled and discharges from such institutions shall be in compliance with s. 51.35 (4).

264,154 Section 154. 55.06 (17) of the statutes is renumbered 55.22 and amended to read:

55.22 Records. (1) (intro.) Any No records of the court pertaining to protective services or protective placement proceedings, including evaluations, reviews and recommendations prepared under sub. (8) (c) s. 55.11 (1) (c), are not open to public inspection but are any record is available to all of the following:

(a) The individual who is the subject of the proceedings and the subject's individual's guardian at all times.

(b) The subject's individual's attorney or guardian ad litem, without the subject's individual's consent and without modification of the records, in order to prepare for any court proceedings relating to the subject's individual's protective services or protective placement or relating to the subject's individual's guardianship.

(c) Other persons only with the informed written consent of the subject individual as provided in s. 51.30 (2) or under an order of the court that maintains the records.

(2) If the subject individual is an adult who has been adjudged incompetent under ch. 880 or is a minor, consent for release of information from and access to the court records may be given only as provided in s. 51.30 (5).

(3) All treatment and service records pertaining to a person an individual who is protected under this chapter or for whom application has been made for protection under this chapter are confidential and privileged to the subject. Section 51.30 governs access to treatment and service records.

Note: Renumbers a provision in current law relating to records in protective placement and services proceedings and makes minor wording changes.

264,155 Section 155. 55.06 (18) of the statutes is renumbered 55.20 and amended to read:

55.20 Appeals. An appeal may be taken to the court of appeals from a final judgment or final order under this section chapter within the time period specified in s. 808.04 (3) and in accordance with s. 809.30 by the subject of the petition or the individual's guardian, by any petitioner, or by the representative of the public.

264,156 Section 156. 55.07 of the statutes is renumbered 55.23, and 55.23 (1) and (2), as renumbered, are amended to read:

55.23 (1) The rights and limitations upon rights, procedures for enforcement of rights, and penalties prescribed in s. 51.61 apply to persons individuals who receive services under this chapter, whether on a voluntary or involuntary basis.

(2) A parent who has been denied periods of physical placement under s. 767.24 (4) (b) or 767.325 (4) may not have the rights of a parent or guardian with respect to access to a child's minor's records under this chapter.

264,157 Section 157. 55.075 of the statutes is created to read:

55.075 Protective services or protective placement; petition. Except as provided in s. 971.14 (6) (b):

(1) Who may petition.

(2) Contents of petition.

(3) Petition for guardianship; review of incompetency.

(4) Fees and costs of petition. (a) The court shall award, from the assets of the individual sought to be protectively placed or protectively served, 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:

1. The petitioner's interest in the matter, including any conflict of interest that the petitioner may have had in pursuing the guardianship or protective placement or services.

2. The ability of the estate of the individual sought to be protectively placed or protectively served to pay the petitioner's reasonable attorney fees and costs.

3. Whether the petition was contested and, if so, the nature of the contest.

4. Whether the individual sought to be protectively placed or protectively served 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 provided advance consent to nursing home admission or engaged in other advance planning to avoid protective placement or protective services.

5. Any other factors that the court considers to be relevant.

(5) Where a petition may be filed; venue; county of responsibility.

(b) The court in which a petition is first filed under par. (a) shall determine venue. The court shall direct that proper notice be given to any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (a) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition.

Note: Renumbers and reorganizes provisions relating to a petition for protective placement or services. Adds to ch. 55 provisions similar to those in current s. 880.24 (3), stats., requiring the court to award payment of reasonable attorney fees and costs to a person who petitions for protective services or placement. Also, adds new provisions relating to venue in a protective placement or services proceeding.

264,158 Section 158. 55.08 of the statutes is created to read:

55.08 Protective services or protective placement: standards. (1) Protective placement. A court may under s. 55.12 order protective placement for an individual who meets all of the following standards:

(2) Protective services. A court may under s. 55.12 order protective services for an individual who meets all of the following standards:

(a) The individual has been determined to be incompetent by a circuit court or is a minor who is alleged to be developmentally disabled and on whose behalf a petition for a guardianship has been submitted.

(b) As a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.

Note: Renumbers and reorganizes provisions relating to standards that a court must consider when determining whether an individual meets the standards for protective placement; adds standards that a court must consider when determining whether an individual meets the standards for court-ordered protective services. Although courts order protective services under current law, there are no specific statutory provisions for courts to follow when ordering protective services.

264,159 Section 159 . 55.09 of the statutes is created to read:

55.09 Notice of petition and hearing for protective services or placement.

(2) Other notice required. In addition to the notice required under sub. (1), notice shall be served, personally or by mail, at least 10 days before the time set for a hearing, upon all of the following:

(a) The guardian ad litem, legal counsel, and guardian, if any, of the individual sought to be protected.

(b) The agent under an activated power of attorney for health care, if any, of the individual sought to be protected.

(c) The presumptive adult heirs, if any, of the individual sought to be protected.

(d) Other persons who have physical custody of the individual sought to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained.

(e) The county department.

(f) Any governmental or private body or group from whom the individual sought to be protected is known to be receiving aid.

(g) Any other persons or entities that the court may require.

(h) The department, if the individual sought to be protected may be placed in a center for the developmentally disabled.

(i) The county department that is participating in the program under s. 46.278 of the county of residence of the individual sought to be protected, if the individual has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for an individual sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department.

(3) Notice of petition for involuntary administration of psychotropic medication. Notice of a petition under s. 55.14 shall be served personally or by mail upon the corporation counsel and county department.

Note: Creates a new section relating to notice of petition and hearing for protective services or placement, which incorporates and reorganizes provisions in current law regarding who must be served with notice of a hearing for protective services or placement.

264,160 Section 160 . 55.10 of the statutes is created to read:

55.10 Hearing on petition for protective services or protective placement.

(2) Attendance. The petitioner shall ensure that the individual sought to be protected attends the hearing on the petition unless, after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend. In determining whether to waive attendance by the individual, the guardian ad litem shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual's expressed desires. If the individual is unable to attend a hearing only because of residency in a nursing home or other facility, physical inaccessibility, or lack of transportation, the court shall, if requested by the individual, the individual's guardian ad litem, the individual's counsel, or other interested person, hold the hearing in a place where the individual is able to attend.

(3) Hearing to be open. The hearing shall be open, unless the individual sought to be protected, or his or her attorney acting with the consent of the individual sought to be protected, requests that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

(4) Rights. The following provisions apply to all hearings under this chapter except transfers of placement under s. 55.15 and summary hearings under ss. 55.18 (3) (d) and 55.19 (3) (d):

(a) Counsel; costs. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall appoint legal counsel. Counsel shall be provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual sought to be protected is an adult who is indigent, and if counsel was not appointed under s. 977.08, the county in which the hearing is held is liable for any fees due the individual's legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 880.33, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.

(c) Trial by jury; right to cross examine witnesses. The individual sought to be protected has the right to a trial by a jury if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The number of jurors shall be determined under s. 756.06 (2) (b). The individual sought to be protected, and the individual's attorney and guardian ad litem have the right to present and cross-examine witnesses, including any person making an evaluation or review under s. 55.11.