AB785: Bill Text

AB785,65,6 55.13 (4) Where If it is necessary to forcibly enter a premises forcibly to provide or investigate the need for emergency protective services, the representative of an agency or staff member of a county protective services agency department shall obtain a court order authorizing entry and shall make the entry accompanied by a sheriff, police officer, or member of a fire department. When it appears probable that substantial physical harm, irreparable injury, or death may occur to an individual, the police officer, fire fighter, or sheriff may enter a premises without a court order if the time required to obtain such an order would result in greater risk of physical harm to the individual.

AB785, s. 100 Section 100. 55.05 (4) (c) of the statutes is renumbered 55.13 (5) and amended to read:

AB785,65,12 55.13 (5) Where If a forcible entry is made under par. (b) sub. (4), a report of the exact circumstances, including the date, time, place, factual basis for the need of such the entry, and the exact services rendered, shall be made and forwarded to the court within 14 days of after entry by the person making such the entry.

AB785, s. 101 Section 101. 55.05 (5) (title) of the statutes is renumbered 55.055 (title) and amended to read:

AB785,65,15 55.055 (title) Admissions initially made without court involvement.

AB785, s. 102 Section 102. 55.05 (5) (a) of the statutes is repealed.

Note: This statute is repealed because it is unnecessary; moreover, it is misleading, because an individual who is legally and actually capable of consenting may consent to enter any regulated residential, medical, or treatment facility, not just those specified.

AB785, s. 103 Section 103. 55.05 (5) (b) 1. of the statutes is renumbered 55.055 (1) (a) and amended to read:

AB785,66,3 55.055 (1) (a) Guardians of persons The guardian of an individual who have has been found incompetent under s. 880.33 may consent to the individual's admission to a foster home, group home, or community-based residential facility, as defined under s. 50.01 (1g), without a protective placement order under s. 55.06 55.12 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and may consent only to admission to a home or facility that implements those rights that right.

Note: Changes a cross-reference to the procedure for protective placement, the provisions of which are renumbered in this bill.

AB785, s. 104 Section 104. 55.05 (5) (b) 2. of the statutes is renumbered 55.055 (1) (b) and amended to read:

AB785,66,23 55.055 (1) (b) Guardians The guardian of persons an individual who have has been found incompetent under s. 880.33 may consent to the individual's admission to a nursing home if the person is admitted directly from a hospital inpatient unit for recuperative care or other facility not specified in par. (a) for which protective placement is otherwise required for a period not to exceed 3 months, unless the hospital admission was for psychiatric care 60 days. In order to be admitted under this paragraph, the individual must be in need of recuperative care or be unable to provide for his or her own care or safety so as to create a serious risk of substantial harm to himself or herself or others. Prior to providing that consent, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a nursing home or other facility that implements those rights that right. Following the 3-month 60-day period, the admission may be extended for an additional 60 days if a petition for protective placement proceeding under s. 55.06 is required 55.075 has been brought, or, if no petition for protective placement under s. 55.075 has been brought, for an additional 30 days for the purpose of allowing the initiation of discharge planning for the individual. Admission under this paragraph is not permitted for an individual with a primary diagnosis of mental illness or developmental disability.

Note: Renumbers and amends a provision in current law that permits a person to be admitted to a nursing home prior to a protective placement proceeding on a short term basis. This provision permits individuals to be admitted to a facility not only directly from a hospital inpatient unit, as under current law, but also in cases where the individual is in need of recuperative care or unable to provide for his or her own care or safety so as to create a serious risk of substantial harm to himself or herself or others. In addition, this provision is revised to permit a 60 day admission, rather than a 3 month admission; however, the provision permits the placement to be extended for an additional 60 days if a protective placement petition has been brought, or, if no petition has been brought, for an additional 30 days to allow the initiation of discharge planning.

AB785, s. 105 Section 105. 55.05 (5) (c) (intro.) of the statutes is renumbered 55.055 (3) (intro.) and amended to read:

AB785,67,9 55.055 (3) (intro.) If a person an individual admitted under par. (b) sub. (1) verbally objects to or otherwise actively protests such an admission, the person in charge of the home, nursing home, or other facility shall immediately notify the agency designated under s. 55.02 county department for the county in which the person individual is living. Representatives of that agency county department shall visit the person individual as soon as possible, but no later than 72 hours after notification, and do the following:

AB785, s. 106 Section 106. 55.05 (5) (c) 1. of the statutes is renumbered 55.055 (3) (a) and amended to read:

AB785,67,14 55.055 (3) (a) Determine whether the protest persists or has been voluntarily withdrawn and consult with the person's individual's guardian regarding the reasons for the admission.

AB785, s. 107 Section 107. 55.05 (5) (c) 2. of the statutes is renumbered 55.055 (3) (b) and amended to read:

AB785,68,2 55.055 (3) (b) Attempt to have the person individual released within 72 hours if the protest is not withdrawn and necessary elements of s. 55.06 (2) or (11) are not present the individual does not satisfy all standards under s. 55.08 (1) or criteria under 55.135 (1) and provide assistance in identifying appropriate alternative living arrangements.

Note: Changes a cross-reference to the standards for protective placement and emergency protective placement, the provisions of which are renumbered in this bill.

AB785, s. 108 Section 108. 55.05 (5) (c) 3. of the statutes is renumbered 55.055 (3) (c) and amended to read:

AB785,68,11 55.055 (3) (c) Comply with s. 55.06 (11) 55.135, if all elements are present the individual satisfies all criteria under s. 55.135 (1) and emergency placement in that home, nursing home, or other facility or another home, nursing home, or other facility is necessary, or file a petition for protective placement under s. 55.06 (2) 55.075. The court, with the permission of the home, nursing home, or facility, may order the person individual to remain in the home, nursing home, or other facility pending the outcome of the protective placement proceedings.

Note: Changes a cross-reference to emergency protective placement, the provisions of which are renumbered in this bill.

AB785, s. 109 Section 109. 55.05 (5) (d) of the statutes is renumbered 55.055 (4) and amended to read:

AB785,68,18 55.055 (4) The admission to a health care facility, as defined in s. 155.01 (6), of a principal by a health care agent under the terms of a power of attorney for health care instrument and in accordance with ch. 155 or the admission of an individual to a nursing home or community-based residential facility under the requirements of s. 50.06 is not a protective placement under this chapter.

AB785, s. 110 Section 110. 55.055 (1) (c) of the statutes is created to read:

AB785,69,2 55.055 (1) (c) The guardian of a ward who has been found incompetent in a state other than this state may consent to admission of the ward under par. (a) or (b) if the ward is currently a resident of this state. A petition for guardianship and protective placement shall be filed in this state within 60 days after the ward's admission under this paragraph.

Note: Provides that the procedure for admissions to facilities that are initially made without court involvement may be initiated by an out-of-state guardian if the ward is currently a resident of this state provided the petition for guardianship and protective placement is filed within 60 days after the ward's admission to the facility.

AB785, s. 111 Section 111. 55.055 (1) (d) of the statutes is created to read:

AB785,69,9 55.055 (1) (d) A resident of this state who is the guardian of a ward who has been found incompetent in, and resides in, a state other than this state may consent to an admission of the ward under par. (a) or (b) if the guardian intends to move the ward to this state within 30 days after the consent to the admission. A petition for guardianship and protective placement shall be filed in this state within 60 days after a ward's admission under this paragraph.

Note: Provides that an in-state guardian of an out-of-state ward may consent to an admission to a facility that is initially made without court involvement if the guardian intends to move the ward to this state within 30 days after the consent to the admission, provided the petition for guardianship and protective placement is filed within 60 days after the ward's admission to the facility.

AB785, s. 112 Section 112. 55.055 (2) of the statutes is created to read:

AB785,69,11 55.055 (2) (a) In this subsection, "facility" means any of the following:

AB785,69,12 1. A group home.

AB785,69,13 2. A foster home.

AB785,69,14 3. A community-based residential facility, as defined in s. 50.01 (1g).

AB785,69,15 4. An adult family home, as defined in s. 50.01 (1).

AB785,69,16 5. A nursing home, as defined in s. 50.01 (3).

AB785,70,4 (b) 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. The individual may continue to reside in the facility until the court issues a decision on the petition for guardianship and protective placement of the individual. Thereafter, the individual may continue to reside in the facility only if the court's order under s. 55.12 specifies protective placement of the individual in a facility licensed for 16 or more beds.

Note: Specifies that a guardian may not consent to the continued residence of a person in a facility licensed for 16 or more beds. Specifies that 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, a petition for protective placement of the person shall also be filed. Specifies that the person may continue to reside in the facility if the court orders placement of the person in a facility licensed for 16 or more beds and may continue to reside in the facility pending the court's decision on the placement petition.

AB785, s. 113 Section 113. 55.06 (1) (intro.) of the statutes is renumbered 55.06 and amended to read:

AB785,71,2 55.06 Protective services and protective placement; eligibility. A protective placement under this section is a placement of a ward for the primary purpose of providing care and custody. To be eligible for court-ordered protective placement or protective services, an individual shall be a resident of or present in the state and have a need for protective placement or protective services. The individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive protective placement or protective services upon attaining the age of 14. No protective Protective placement under this section or protective services may be ordered unless under this chapter there is a determination of incompetency only for an individual who is determined to be incompetent in accordance with ch. 880, except in the case of or for a minor who is alleged to be developmentally disabled, and only if there is a finding of a need for protective placement in accordance with sub. (2) except as provided in subs. (11) and (12) under s. 55.12, and ss. 55.055 (5), 55.13, and 55.135 are inappropriate or do not apply. A procedure for adult court-ordered protective placement or protective services may be initiated 6 months prior to an individual's birthday at which he or she first becomes eligible for placement before a minor attains age 18.

Note: Amends the current provision on eligibility for protective placement to include eligibility for court-ordered protective services.

AB785, s. 114 Section 114. 55.06 (1) (a) of the statutes is renumbered 55.075 (1) and amended to read:

AB785,71,11 55.075 (1) The board designated under s. 55.02 department, the county department or an agency designated by it with which the county department contracts under s. 55.02 (2), a guardian, or an interested person may file a petition for appointment of a guardian and for protective services or protective placement for an individual. The department shall provide for a schedule of reimbursement for the cost of such the proceedings based upon the ability to pay of the proposed ward or person individual to be protected.

Note: Renumbers provisions in current law relating to petitioning for protective services or placement and revises who may file a petition.

AB785, s. 115 Section 115. 55.06 (1) (b) of the statutes is renumbered 55.075 (4) (b) and amended to read:

AB785,71,19 55.075 (4) (b) If a person seeking to be the guardian of a proposed ward requests the assistance of a board designated under s. 55.02 county department or an agency designated by it with which it contracts under s. 55.02 (2) in petitioning for guardianship or for protective service or placement, such services or protective placement, the assistance may be considered a service and may be charged for based upon the ability of such the person to pay for the service.

Note: Creates an exception to the requirement in s. 55.075 (4) (a), created in this bill, that the court must, unless it is inequitable, award payment of the petitioner's costs from the assets of the person sought to be provided protective placement or services.

AB785, s. 116 Section 116. 55.06 (1) (c) of the statutes is renumbered 55.02 (3) and amended to read:

AB785,72,3 55.02 (3) Corporation counsel. If requested by the court, the 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.

Note: Amends current law to provide that the corporation counsel for the county in which the petition for protective placement or services is brought may assist in conducting proceedings under this chapter. The corporation counsel must assist if requested by the court, as under current law.

AB785, s. 117 Section 117. 55.06 (1) (d) of the statutes is renumbered 55.03 (4) and amended to read:

AB785,72,10 55.03 (4) Guardian authority for making protective placement. No guardian or temporary guardian may make a permanent protective placement of his or her ward unless ordered by a court under this section s. 55.12, but a guardian or temporary guardian 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.

Note: Renumbers and amends a provision in current law relating to a guardian's authority to make a protective placement of a ward, admit the ward to certain residential facilities, or make an emergency protective placement.

AB785, s. 118 Section 118. 55.06 (2) (intro.) of the statutes is repealed.

Note: Repeals a provision in current law; this provision is recreated in a new section of the bill.

AB785, s. 119 Section 119. 55.06 (2) (a) of the statutes is renumbered 55.08 (1) (a) and amended to read:

AB785,72,15 55.08 (1) (a) Has The individual has a primary need for residential care and custody;.

AB785, s. 120 Section 120. 55.06 (2) (b) of the statutes is renumbered 55.08 (1) (b) and amended to read:

AB785,72,20 55.08 (1) (b) Except in the case of a minor who is alleged to be developmentally disabled, the individual has either been determined to be incompetent by a circuit court or has had submitted on the minor's behalf a petition for a guardianship;.

AB785, s. 121 Section 121. 55.06 (2) (c) of the statutes is renumbered 55.08 (1) (c) and amended to read:

AB785,73,8 55.08 (1) (c) As a result of developmental disabilities, infirmities of aging, chronic degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to oneself himself or herself or others. Serious harm may be occasioned evidenced by overt acts or acts of omission; and.

Note: Revises the terms "infirmities of aging" and "chronic mental illness" to "degenerative brain disorder" and "serious and persistent mental illness", respectively.

AB785, s. 122 Section 122. 55.06 (2) (d) of the statutes is renumbered 55.08 (1) (d) and amended to read:

AB785,73,12 55.08 (1) (d) Has The individual has a disability which that is permanent or likely to be permanent.

AB785, s. 123 Section 123. 55.06 (3) (a) of the statutes is renumbered 55.075 (2) (a) and amended to read:

AB785,73,17 55.075 (2) (a) The A petition shall allege that the individual meets the standards specified in s. 55.08 (1) or (2) and state with particularity the factual basis for the allegations specified in sub. (2).

AB785, s. 124 Section 124. 55.06 (3) (b) of the statutes is renumbered 55.075 (2) (b) and amended to read:

AB785,73,21 55.075 (2) (b) The petition under sub. (2) shall be based on personal knowledge of the individual alleged to need protective placement or protective services.

AB785, s. 125 Section 125. 55.06 (3) (c) of the statutes is renumbered 55.075 (5) (a) and amended to read:

AB785,74,6 55.075 (5) (a) The A petition under sub. (1) shall be filed in the county of residence of the person individual to be protected, except that the petition may be filed in the county in which the individual is physically present due to extraordinary circumstances, including requiring medical aid and preventing harm to the individual or others. The county of residence, as determined by the court, under s. 51.40, or by the guardian, is the county of responsibility.

Note: Clarifies where the petition for protective placement or services shall be filed. The petition must be filed in the county of residence of the individual to be protected, or where the person is present due to extraordinary circumstances.

AB785, s. 126 Section 126. 55.06 (4) of the statutes is renumbered 55.075 (3) and amended to read:

AB785,74,14 55.075 (3) A petition for guardianship if required under sub. (2) (b) must described in s. 55.08 (1) (b) or (2) (a) shall be heard prior to ordering protective placement under this section or protective services. If incompetency has been the individual is determined incompetent under s. 880.33 more than one year preceding 12 months before the filing of an application for protective placement or protective services on his or her behalf, the court shall review the finding of incompetency.

AB785, s. 127 Section 127. 55.06 (5) of the statutes is renumbered 55.09 (1) and amended to read:

AB785,75,19 55.09 (1) Notice to individual. Notice of a petition for protective placement or protective services shall be served upon the person individual sought to be placed protected, by personal service, at least 10 days prior to before the time set for a hearing. Upon service of the notice, the person sought to be protected shall be informed of the complete contents of the notice. The person serving the notice shall inform the individual sought to be protected of the complete contents of the notice and shall return a certificate to the circuit judge verifying that the petition has been delivered and notice given. The notice shall include the names of all petitioners. Notice shall also be served personally or by mail upon the person's guardian ad litem, legal counsel, guardian, if any, presumptive adult heirs, and upon other persons who have physical custody of the person to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private body or group from whom the person to be protected is known to be receiving aid, and to such other persons or entities as the court may require. Notice shall also be served personally or by mail upon the department at least 10 days prior to the time set for hearing if the person sought to be protected may be placed in a center for the developmentally disabled. Notice shall also be served personally or by mail, at least 10 days before the time set for hearing, upon the county department that is participating in the program under s. 46.278 of the county of residence of the person sought to be protected, if the person has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for a person sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department. The incompetent or proposed incompetent is presumed able to attend the hearing unless, after a personal interview, the guardian ad litem certifies to the court that the person is unable to attend.

Note: Deletes provision from current law relating to notice of petition and hearing for protective placement. These provisions are placed in a new statutory section, s. 55.09, "Notice of petition and hearing for protective services or placement.", which is found in Section 159 of this bill.

AB785, s. 128 Section 128. 55.06 (5m) of the statutes is renumbered 55.10 (1) and amended to read:

AB785,76,8 55.10 (1) Time limits. A petition for protective placement of a person who has been admitted to a nursing home or a community-based residential facility under s. 50.06 or protective services shall be heard within 60 days after it is filed unless an extension of this time is requested by the petitioner, the individual sought to be protected or the individual's guardian ad litem, or the county department, in which case the court may extend the date for hearing by up to 45 days. If an individual under s. 50.06 (3) alleges that an another individual is making a health care decision under s. 50.06 (5) (a) that is not in the best interests of the incapacitated individual or if the incapacitated individual verbally objects to or otherwise actively protests the admission, the petition shall be heard as soon as possible within the 60-day period.

Note: Allows certain parties to request an extension of up to 45 days of the 60-day time period within which a petition for protective placement or services must be heard.

AB785, s. 129 Section 129. 55.06 (6) of the statutes is renumbered 55.10 (4) (b) and amended to read:

AB785,77,10 55.10 (4) (b) Guardian ad litem; costs. Section 880.33 (2) applies to all hearings under this chapter except for transfers of placement under sub. (9) (b), (c) and (e). A person to be protected shall have a The court shall in all cases require the appointment of an attorney as guardian ad litem who is an attorney appointed in accordance with s. 757.48 (1) present at all hearings under this chapter if the person does not have full legal counsel. The responsibilities and duties of a guardian ad litem on behalf of a proposed ward or individual who is alleged incompetent specified in s. 880.331 (4) apply to a guardian ad litem appointed in a proceeding for protective services or protective placement on behalf of an individual sought to be protected. If a guardian has been appointed for an individual who is the subject of a petition for court-ordered protective placement or protective services, the guardian ad litem shall interview the guardian. The guardian ad litem shall be present at all hearings under this chapter if the individual sought to be protected does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. If the person individual sought to be protected is an adult who is indigent, the county of legal settlement shall be liable for any fees due the guardian ad litem fees. If the person individual sought to be protected is a child, the person's minor, the minor's parents or the county of legal settlement in which the hearing is held shall be liable for any fees due the guardian ad litem fees as provided in s. 48.235 (8). The subject individual, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including any person making an evaluation or review under sub. (8) (c).

Note: Clarifies that the responsibilities and duties of a guardian ad litem on behalf of an individual who is the subject of a protective placement or services proceeding are the same as those in a proceeding under ch. 880, relating to guardianship.

AB785, s. 130 Section 130. 55.06 (7) of the statutes is renumbered 55.10 (4) (d) and amended to read:

AB785,77,19 55.10 (4) (d) Standard of proof. Except for emergency placement or temporary placement under subs. (11) and (12), before Before protective placement or protective services may be ordered under this chapter s. 55.12, the court or jury must find by clear and convincing evidence that the individual to be placed protected is in need of protective placement as provided in sub. (2) because he or she meets all of the standards under s. 55.08 (1) or is in need of protective services because he or she meets all of the standards under s. 55.08 (2).

Note: Clarifies the standard of proof at protective placement or services hearing; provides that the person must meet the standards for protective placement or protective services before an order may be entered.

AB785, s. 131 Section 131 . 55.06 (8) (intro.) of the statutes is renumbered 55.11 (1) (intro.) and amended to read:

AB785,79,2 55.11 (1) (intro.) Before ordering the protective placement of or protective services for any individual, the court shall direct require a comprehensive evaluation of the person in need of placement individual sought to be protected, if such an evaluation has not already been made. The court may utilize available multidisciplinary resources in the community in determining the need for protective placement or protective services. The 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) shall cooperate with the court in securing available resources. Where applicable by reason of the particular disability, the appropriate board designated under s. 55.02 or an agency designated by it having responsibility for the place of legal residence of the individual as provided in s. 49.001 (6) shall make a recommendation for placement. If the court is considering placement of the individual in a center for the developmentally disabled, the court shall request a statement or testimony from the department regarding whether the placement is appropriate for the person's needs and whether it is consistent with the purpose of the center under s. 51.06 (1). If the individual has a developmental disability and the court is considering placement of the individual in an intermediate facility or a nursing facility, the court shall request a statement or testimony from the county department of the individual's county of residence that is participating in the program under s. 46.278 as to whether the individual's needs could be met in a noninstitutional setting, except that, if s. 46.279 (4m) applies to the individual, the court shall request the statement or testimony from the department, rather than the county department. A copy of the comprehensive evaluation shall be provided to the guardian, the guardian ad litem, and to the individual or attorney at least 96 hours in advance of the hearing to determine placement. The court or the cooperating agency obtaining the evaluation shall request appropriate information which shall include at least the following: