2005 Wisconsin Act 264

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

264,193 Section 193. 880.01 (4) of the statutes is amended to read:

880.01 (4) "Incompetent" means a person adjudged by a court of record to be substantially incapable of managing his or her property or caring for himself or herself by reason of infirmities of aging degenerative brain disorder, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

264,194 Section 194. 880.01 (5) of the statutes is renumbered 880.01 (1t) and amended to read:

880.01 (1t) "Infirmities of aging Degenerative brain disorder" means organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted the loss or dysfunction of brain cells to the extent that an individual is substantially impaired in his or her ability to adequately provide adequately for his or her own care or custody.

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder."

264,195 Section 195. 880.01 (7m) of the statutes is renumbered 55.14 (1) (b) and amended to read:

55.14 (1) (b) "Not competent to refuse psychotropic medication" means that, because of chronic mental illness, as defined in s. 51.01 (3g) as a result of developmental disabilities, 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:

1. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives to accepting treatment.

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

Note: Relocates a provision in ch. 880 that defines "not competent to refuse psychotropic medication" to the newly-created section of ch. 55 that establishes the procedure and requirements for a court order authorizing a guardian to consent to the involuntary administration of psychotropic medication to a ward. Also revises that definition to reflect terminology changes made elsewhere in the bill.

264,196 Section 196. 880.01 (8m) of the statutes is created to read:

880.01 (8m) "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.

264,197 Section 197. 880.07 (1m) of the statutes is repealed.

Note: Repeals a provision describing the required contents of a petition alleging that a proposed ward is incompetent to refuse psychotropic medications to reflect that the bill creates a new procedure for these types of petitions in s. 55.14.

264,198 Section 198. 880.07 (2m) of the statutes is created to read:

880.07 (2m) Whenever a petition for guardianship on the ground of incompetency is filed with respect to an individual who resides in a facility licensed for 16 or more beds, a petition for protective placement of the individual shall also be filed.

Note: Requires the filing of a protective placement petition whenever a petition for guardianship on the ground of incompetency is filed with respect to a person who resides in a facility licensed for 16 or more beds.

264,199 Section 199. 880.08 (1) of the statutes is amended to read:

880.08 (1) Incompetents Proposed ward or ward. A petitioner shall have notice served of a petition for appointment or change of a guardian upon the a proposed incompetent ward or ward and existing guardian, if any, by personal service at least 10 days before the time set for hearing. If such the proposed incompetent ward or ward is in custody or confinement, a petitioner shall have notice served by registered or certified mail on the proposed incompetent's ward's or ward's custodian, who shall immediately serve it on the proposed incompetent ward or ward. The custodian shall inform the proposed incompetent ward or ward of the complete contents of the notice and, certify thereon on it that the custodian served and informed the proposed incompetent ward or ward, and returned return the certificate and notice to the circuit judge. The notice shall include the names of all persons who are petitioning for guardianship. A copy of the petition shall be attached to the notice. The court shall cause the petitioner shall ensure that the proposed incompetent, if able to attend, to be produced at ward or ward attends the hearing. The proposed incompetent is presumed able to attend 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 person proposed ward or ward is unable to attend. 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 or ward's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the proposed ward's or ward's expressed desires. If the person proposed ward or ward 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 hold the hearing in a place where the person may attend, if requested by the proposed ward or ward, guardian ad litem, adversary counsel for the proposed ward or ward, or other interested person. Such, hold the hearing in a place where the proposed ward or ward is able to attend. The notice shall also be given personally or by mail at least 10 days before the hearing to the proposed incompetent's ward's or ward's counsel, if any, guardian ad litem, presumptive adult heirs or other persons who have legal or physical custody of the proposed incompetent ward or ward whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private agency, charity or foundation from which the proposed incompetent ward or ward is receiving aid and to such other persons or entities as the court may require. The court shall then proceed under s. 880.33.

Note: Specifies that the court need not hold a hearing on appointment of a guardian for a person alleged to be incompetent in the presence of the person under certain circumstances. These provisions are identical to provisions inserted into ch. 55 by Section 160 of the bill.

264,200 Section 200. 880.24 (3) (a) of the statutes is renumbered 880.24 (3), and 880.24 (3) (intro.), as renumbered, is amended to read:

880.24 (3) (intro.) Except as provided in par. (b), when When a guardian is appointed, the court shall award from the ward's estate payment of the petitioner's reasonable attorney fees and costs, including those fees and costs, if any, related to protective placement of the ward, unless the court finds, after considering all of the following, that it would be inequitable to do so:

264,201 Section 201 . 880.24 (3) (b) of the statutes is renumbered 880.24 (3) (cm) and amended to read:

880.24 (3) (cm) If the court finds that 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 to avoid guardianship, the court may not make the award specified in par. (a).

Note: Specifies that the court may consider whether the ward engaged in advance planning to avoid guardianship when deciding whether to award payment of the petitioner's attorney fees and costs from the ward's estate.

264,202 Section 202 . 880.33 (1) of the statutes is amended to read:

880.33 (1) Whenever it is proposed to appoint a guardian on the ground of incompetency, a licensed physician or licensed psychologist, or both, shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination. The privilege under s. 905.04 shall not apply to this statement. A copy of the statement shall be provided to the proposed ward, guardian ad litem, and attorney. Prior to the examination, under this subsection, of a person alleged to be not competent to refuse psychotropic medication under s. 880.07 (1m), the person shall be informed that his or her statements may be used as a basis for a finding of incompetency and an order for protective services, including psychotropic medication. The person individual shall also be informed that he or she has a right to remain silent and that the examiner is required to report to the court even if the person individual remains silent. The issuance of such a warning to the person individual prior to each examination establishes a presumption that the person individual understands that he or she need not speak to the examiner.

264,203 Section 203. 880.33 (2) (a) 1. of the statutes is amended to read:

880.33 (2) (a) 1. The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48 (1) and shall in addition require representation by full legal counsel whenever the petition contains the allegations under s. 880.07 (1m) or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney, or guardian ad litem, except that if the petition contains the allegations under s. 880.07 (1m) and if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be determined under s. 756.06 (2) (b). The proposed ward, attorney, or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

264,204 Section 204 . 880.33 (2) (a) 2. of the statutes is amended to read:

880.33 (2) (a) 2. If the person proposed ward requests but is unable to obtain legal counsel, the court shall appoint legal counsel. If the person proposed ward is represented by counsel appointed under s. 977.08 in a proceeding for under a petition for protective placement brought under s. 55.06 or for the appointment of a guardian under s. 880.07 (1m) 55.075, the court shall order the counsel appointed under s. 977.08 to represent the person proposed ward.

Note: Sections 202 to 204 replace the term "person" with "individual" or "proposed ward" as appropriate.

264,205 Section 205 . 880.33 (2) (d) of the statutes is repealed.

264,206 Section 206 . 880.33 (2) (e) of the statutes is repealed.

Note: Sections 205 and 206 repeal provisions pertaining to a hearing on a petition alleging that a proposed ward is incompetent to refuse psychotropic medications, to reflect that the bill creates a new procedure for these types of petitions in s. 55.14.

264,207 Section 207. 880.33 (2) (f) of the statutes is created to read:

880.33 (2) (f) An interested person may participate in the hearing on the petition at the court's discretion.

Note: This provision is taken from the decision of the Wisconsin Court of Appeals in Coston v. Joseph P., 222 Wis. 2d 1, 586 N.W.2d 52 (Ct. App. 1998).

264,208 Section 208. 880.33 (3) of the statutes is amended to read:

880.33 (3) In a finding of limited incompetency, guardianship of the person shall be limited in accordance with the order of the court accompanying the finding of incompetence. If the proposed incompetent has executed a power of attorney for health care under ch. 155, the court shall give consideration to the appointment of the health care agent for the individual as the individual's guardian. The court shall make a specific finding as to which legal rights the person individual is competent to exercise. Such rights include but are not limited to the right to vote, to marry, to obtain a motor vehicle operator's license or other state license, to hold or convey property, and the right to contract. The findings of incompetence must be based upon clear and convincing evidence. The court shall determine if additional medical or psychological testimony is necessary for the court to make an informed decision respecting competency to exercise legal rights and may obtain assistance in the manner provided in s. 55.06 (8) 55.11 whether or not protective placement is made. The guardian, ward, or any interested person may at any time file a petition with the court requesting a restoration of any such legal right, and specifying the reasons therefor. Such The petition may request that a guardianship of the person be terminated and a guardianship of property be established.

Note: Replaces the term "person" with individual and amends a cross-reference to reflect renumbering if ch. 55 in the bill.

264,209 Section 209. 880.33 (4m) of the statutes is repealed.

Note: Repeals a provision in ch. 880 authorizing a court to appoint a guardian to consent to or refuse psychotropic medications on behalf of a ward to reflect that the bill creates a new procedure in s. 55.14 authorizing a guardian to make these decisions.

264,210 Section 210. 880.33 (4r) of the statutes is repealed.

Note: Repeals a provision in ch. 880 under which a court may authorize a guardian to consent to forcible administration of psychotropic medications to a ward under certain circumstances, to reflect that the bill creates a new procedure in s. 55.14 for a court to provide this authorization.

264,211 Section 211. 880.33 (6) of the statutes is amended to read:

880.33 (6) All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 55.06 (17) 55.22. The fact that a person an individual has been found incompetent is accessible to any person who demonstrates to the custodian of the records a need for that information.

Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55 in a provision of current law pertaining to guardianship.

264,212 Section 212. 880.33 (7) of the statutes is amended to read:

880.33 (7) A finding of incompetency and appointment of a guardian under this subchapter is not grounds for involuntary protective placement. Such placement A protective placement may be made only in accordance with s. 55.06 ch. 55.

Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55 in a provision of current law pertaining to guardianship.

264,213 Section 213. 880.331 (1) of the statutes is amended to read:

880.331 (1) Appointment. The court shall appoint a guardian ad litem whenever it is proposed that the court appoint a guardian on the ground of incompetency under s. 880.33, protectively place a person provide protective placement to an individual or order protective services under s. 55.06 ch. 55, review any protective placement or protective service order under s. 55.06 55.18, or terminate a protective placement under s. 55.06 55.17.

Note: Amends a cross-reference to reflect renumbering and amendment of ch. 55 in a provision in current law that requires the court to appoint a guardian ad litem in incompetency cases.

264,214 Section 214. 880.331 (4) (am) and (ar) of the statutes are created to read:

880.331 (4) (am) Interview the proposed guardian and any other person seeking appointment as guardian.

(ar) Make a recommendation to the court regarding the fitness of the proposed guardian.

Note: Adds two items to the list of duties of a guardian ad litem in incompetency cases: the duty to interview the proposed guardian and any other person seeking appointment as a guardian and the duty to make a recommendation to the court regarding the fitness of the proposed guardian.

264,215 Section 215. 880.331 (4) (dm), (dr) and (ds) of the statutes are created to read:

880.331 (4) (dm) Inform the court and the petitioner or petitioner's counsel, if any, if the proposed ward requests representation by counsel.

(dr) Attend all court proceedings related to the guardianship.

(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).

Note: Adds three items to the list of duties of a guardian ad litem in incompetency cases: the duty to inform the court and the petitioner or his or her counsel if the proposed ward requests representation by counsel; the duty to attend all court proceedings relating to the guardianship; and the duty to notify the guardian of certain rights of the guardian.

264,216 Section 216. 880.331 (5) (intro.) of the statutes is amended to read:

880.331 (5) Duties in protective services reviews. (intro.) In any review of a protective placement under s. 55.06 or of a protective service services order made under s. 55.05 55.12, the guardian ad litem shall do all of the following:

Note: Amends cross-references to reflect renumbering and amendment of ch. 55 in a provision in current law that sets forth the duties of a guardian ad litem in incompetency cases.

264,217 Section 217. 880.34 (6) of the statutes is repealed.

Note: Repeals provisions in current law pertaining to annual review of an order authorizing a guardian to consent to forcible administration of psychotropic medications to a ward under certain circumstances, to reflect that the bill creates a new annual review procedure of that type of authorization in s. 55.19.

264,218 Section 218. 880.38 (1) of the statutes is amended to read:

880.38 (1) A guardian of the person of an incompetent, upon order of the court, may have custody of the person ward, may receive all notices on behalf of the person ward, and may act in all proceedings as an advocate of the person ward, but may not have the power to bind the ward or the ward's property, or to represent the ward in any legal proceedings pertaining to the property, unless the guardian of the person is also the guardian of the property. A guardian of the person of an incompetent or a temporary guardian of the person of an incompetent may not make a permanent protective placement of the ward unless ordered by a court under s. 55.06 55.12 but may admit a ward to certain residential facilities under s. 55.05 (5) 55.055 or make an emergency protective placement under s. 55.06 (11) 55.135. The guardian of the person has the power to apply may petition for protective placement under s. 55.06 55.075 (1) and for commitment under s. 51.20 or 51.45 (13).

Note: Amends cross-references to reflect renumbering and amendment of ch. 55 in a provision of current law that sets forth the rights and duties of guardians.

264,219 Section 219. 880.38 (2) of the statutes is amended to read:

880.38 (2) A guardian of the person shall endeavor to secure necessary care, services, or appropriate protective placement on behalf of the ward. Subject to any limitation imposed by the court under s. 880.33 (8) (b), a guardian may consent, without further court involvement, to involuntary administration of medication, other than psychotropic medication, and involuntary medical treatment that is in the ward's best interest. A guardian may consent to involuntary administration of psychotropic medication only under a court order under s. 55.14 or s. 880.33 (4m) or (4r), 2003 stats. In determining whether medication, other than psychotropic medication, or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medication or treatment and the likely benefits and side effects of the medication or treatment.

Note: Authorizes a guardian to consent, without further court involvement, to involuntary administration of medication, other than psychotropic medication, and involuntary medical treatment that is in the ward's best interest. In determining whether medication or medical treatment is in the ward's best interest, the guardian shall consider the invasiveness of the medication or treatment and the likely benefits and side effects of the medication or treatment. A guardian may not consent to involuntary administration of psychotropic medication unless the guardian has been authorized to do so under s. 55.14 (8).

264,220 Section 220. 880.38 (3) of the statutes is amended to read:

880.38 (3) A guardian of the person of an incompetent appointed under s. 880.33 shall 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, but not be limited to, the location of the ward, the health condition of the ward, any recommendations regarding the ward, and a statement of whether or not the ward is living in the least restrictive environment consistent with the needs of the ward. The guardian may fulfill the requirement under this subsection by submitting the report required under s. 55.06 (10).

Note: Amends cross-references to reflect renumbering and amendment of ch. 55 in a provision of current law that requires a guardian to make an annual report on the condition of the ward to the court and the county.

264,221 Section 221. 880.38 (4) of the statutes is created to read:

880.38 (4) (a) In this subsection, "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.

(b) A guardian may, without court approval, give an informed consent to the voluntary receipt by the guardian's ward of medication, including any appropriate psychotropic medication, if the guardian has first made a good-faith attempt to discuss with the ward the voluntary receipt of the medication and if the ward does not protest.

Note: Creates a definition of "protest" and creates a provision under which a guardian may provide informed consent to voluntary receipt of medication, including psychotropic medication, by a ward.

264,222 Section 222. 940.285 (1) (a) of the statutes is renumbered 940.285 (1) (am).

264,223 Section 223. 940.285 (1) (b) of the statutes is renumbered 940.285 (1) (ag) and amended to read:

940.285 (1) (ag) "Infirmities of aging "Degenerative brain disorder" has the meaning specified in s. 55.01 (3) given in s. 55.01 (1v).

Note: Replaces the term "infirmities of aging" with the term "degenerative brain disorder" and amends cross-references to reflect renumbering and amendment of ch. 55, in the statute that establishes certain crimes related to the maltreatment of vulnerable adults.

264,224 Section 224. 940.285 (1) (e) (intro.) of the statutes is amended to read:

940.285 (1) (e) (intro.) "Vulnerable adult" means any person 18 years of age or older who either is a developmentally disabled person or has infirmities of aging degenerative brain disorder, mental illness or other like incapacities and who is: