SB731: Bill Text

Analysis by the Legislative Reference Bureau

With respect to the laws relating to protective placements and protective services, involuntary administration of psychotropic medication, guardianships, conservatorships, wards, and services for adults at risk and elder adults at risk, this bill reconciles three acts that cannot be reconciled by the revisor of statutes in preparing the statutes. The bill makes numerous and diverse minor changes to correct incorrect cross-references, to align inconsistent provisions, to give effect to certain provisions superceded by subsequent acts, and to make more uniform the definitions of "developmental disability," degenerative brain disorder," and "serious and persistent mental illness."

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB731, s. 1 Section 1. 46.286 (3) (a) 3. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB731,2,16 46.286 (3) (a) 3. Is functionally eligible at the intermediate level and is determined by an elder-adult-at-risk agency under s. 46.90 (2) or an adult-at-risk agency designated under s. 55.02 to be in need of protective services or protective placement under ch. 55.

SB731, s. 2 Section 2. 46.90 (1) (eg) 1. of the statutes, as created by 2005 Wisconsin Act 388, is amended to read:

SB731,3,3 46.90 (1) (eg) 1. A guardian of the estate appointed under s. 880.03 54.10.

SB731, s. 3 Section 3. 46.90 (1) (eg) 2. of the statutes, as created by 2005 Wisconsin Act 388, is amended to read:

SB731,3,6 46.90 (1) (eg) 2. A conservator appointed under s. 880.31 54.76.

SB731, s. 4 Section 4. 46.90 (5m) (a) of the statutes, as affected by 2005 Wisconsin Act 388, is amended to read:

SB731,3,20 46.90 (5m) (a) Upon responding to a report, the elder-adult-at-risk agency or the investigative agency shall determine whether the elder adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 47, 49, 51, 54, or 55 or 880. From the appropriation under s. 20.435 (7) (dh), the department shall allocate to selected counties not less than $25,000 in each fiscal year, and within the limits of these funds and of available state and federal funds and of county funds appropriated to match the state and federal funds, the elder-adult-at-risk agency shall provide the necessary direct services to the elder adult at risk or other individual or arrange for the provision of the direct services with other agencies or individuals. Those direct services provided shall be rendered under the least restrictive conditions necessary to achieve their objective.

SB731, s. 5 Section 5. 46.90 (5m) (br) 2. of the statutes, as created by 2005 Wisconsin Act 388, is amended to read:

SB731,4,2 46.90 (5m) (br) 2. Take appropriate emergency action, including emergency protective placement under s. 55.06 55.135, if the elder-adult-at-risk agency determines that the emergency action is in the best interests of the elder adult at risk and the emergency action is the least restrictive appropriate intervention.

SB731, s. 6 Section 6. 46.90 (6) (bt) 8. of the statutes, as created by 2005 Wisconsin Act 388, is amended to read:

SB731,4,8 46.90 (6) (bt) 8. To the attorney or guardian ad litem for the elder adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 54, 55, 813, 880, 971, or 975 pertaining to the alleged victim.

SB731, s. 7 Section 7. 49.001 (8) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,4,16 49.001 (8) "Voluntary" means according to an individual's free choice, if competent, or, if adjudicated incompetent, by choice of his or her guardian, unless the individual is subject to a court-ordered placement under ch. 55, is placed by an agency having a court-ordered involuntary commitment of the individual under ch. 51, or is involuntarily committed to the department of corrections or to the department under ch. 971 or 980.

SB731, s. 8 Section 8. 51.01 (5) (a) of the statutes, as affected by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB731,5,2 51.01 (5) (a) "Developmental disability" means a disability attributable to brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, mental retardation, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for individuals with mental retardation, which has continued or can be expected to continue indefinitely and constitutes a substantial handicap to the afflicted individual. "Developmental disability" does not include dementia that is primarily caused by degenerative brain disorder.

SB731, s. 9 Section 9. 51.01 (14t) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,5,13 51.01 (14t) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.

SB731, s. 10 Section 10. 51.03 (3) (a) 6. of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,5,18 51.03 (3) (a) 6. The number of individuals authorized to consent to involuntary administration of psychotropic medication under s. 55.14 (8) or for whom guardians were appointed under s. 880.33 (4m), 2003 stats.

SB731, s. 11 Section 11 . 51.20 (7) (d) 1. of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,6,13 51.20 (7) (d) 1. If the court determines after hearing that there is probable cause to believe that the subject individual is a fit subject for guardianship and protective placement or services, the court may, without further notice, appoint a temporary guardian for the subject individual and order temporary protective placement or services under ch. 55 for a period not to exceed 30 days, and shall proceed as if petition had been made for guardianship and protective placement or services. If the court orders only temporary protective services for a subject individual under this paragraph, the individual shall be provided care only on an outpatient basis. The court may order psychotropic medication as a temporary protective service under this paragraph if it finds that there is probable cause to believe that the allegations under s. 55.14 (3) (e) apply, that the individual is not competent to refuse psychotropic medication and that the medication ordered will have therapeutic value and will not unreasonably impair the ability of the individual to prepare for and participate in subsequent legal proceedings. An individual is not competent to refuse psychotropic medication if, because of serious and persistent mental illness, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, one of the following is true:

SB731,6,15 a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.

SB731,6,19 b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her serious and persistent mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.

SB731, s. 12 Section 12. 54.01 (8) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,7,4 54.01 (8) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for individuals with mental retardation, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.

SB731, s. 13 Section 13. 54.10 (3) (d) of the statutes, as created by 2005 Wisconsin Act 387, is amended to read:

SB731,7,14 54.10 (3) (d) Before appointing a guardian under this subsection, declaring incompetence to exercise a right under s. 54.25 (2) (c), or determining what powers are appropriate for the guardian to exercise under s. 54.18, 54.20, or 54.25 (2) (d), the court shall determine if additional medical, psychological, social, vocational, or educational evaluation is necessary for the court to make an informed decision respecting the individual's 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.

SB731, s. 14 Section 14. 54.25 (1) (b) (intro.) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,7,18 54.25 (1) (b) (intro.) Endeavor to secure any necessary care or services for the ward that are in the ward's best interests, based on all of the following:

SB731, s. 15 Section 15. 54.25 (2) (b) 4. of the statutes, as created by 2005 Wisconsin Act 387, is amended to read:

SB731,7,24 54.25 (2) (b) 4. To protest a residential placement made under s. 55.05 (5) 55.055, and to be discharged from a residential placement unless the individual is protectively placed under s. 55.06 ch. 55 or the elements requirements of s. 55.06 (11) 55.135 (1) are present met.

SB731, s. 16 Section 16. 54.25 (2) (d) 2. n. of the statutes, as created by 2005 Wisconsin Act 387, is amended to read:

SB731,8,4 54.25 (2) (d) 2. n. The power to apply petition for protective placement under s. 55.06 55.075 or for commitment under s. 51.20 or 51.45 (13) for the ward.

SB731, s. 17 Section 17. 54.36 (title) of the statutes is created to read:

SB731,8,6 54.36 (title) Examination of proposed ward.

SB731, s. 18 Section 18. 54.36 (1) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,9,6 54.36 (1) Whenever it is proposed to appoint a guardian on the ground that a proposed ward allegedly has incompetency or is a spendthrift, a physician or psychologist, or both, shall examine the proposed ward and furnish a written report stating the physician's or psychologist's professional opinion regarding the presence and likely duration of any medical or other condition causing the proposed ward to have incapacity or to be a spendthrift. The privilege under s. 905.04 does not apply to the statement. The petitioner shall provide a copy of the report to the proposed ward or his or her counsel, the guardian ad litem, and the petitioner's attorney, if any. Prior to the examination on which the report is based, the guardian ad litem, physician, or psychologist shall inform the proposed ward that statements made by the proposed ward may be used as a basis for a finding of incompetency or a finding that he or she is a spendthrift, that he or she has a right to refuse to participate in the examination, absent a court order, or speak to the physician or psychologist, and that the physician or psychologist is required to report to the court even if the proposed ward does not speak to the physician or psychologist. The issuance of such a warning to the proposed ward prior to each examination establishes a presumption that the proposed ward understands that he or she need not speak to the physician or psychologist. Nothing in this section prohibits the use of a report by a physician or psychologist that is based on an examination of the proposed ward by the physician or psychologist before filing the petition for appointment of a guardian, but the court will consider the recency of the report in determining whether the report sufficiently describes the proposed ward's current state and in determining the weight to be given to the report.

SB731, s. 19 Section 19. 54.38 (2) (a) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,9,18 54.38 (2) (a) On the proposed ward or ward by personal service and an existing guardian, if any, by personal service or by registered or certified mail at least 10 days before the time set for hearing. If the proposed ward or ward is in custody or confinement, the petitioner shall have notice served by registered or certified mail on the proposed ward's or ward's custodian, who shall immediately serve it on the proposed ward or ward. The process server or custodian shall inform the proposed ward or ward of the complete contents of the notice and petition, motion, or other required document; certify on the notice that the process server or custodian served and informed the proposed ward or ward; and return the certificate and notice to the court.

SB731, s. 20 Section 20. 54.40 (1) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,9,25 54.40 (1) Appointment. The court shall appoint a guardian ad litem when a petition for appointment of a guardian is brought under s. 54.34 (1), when a petition for receipt and acceptance of a foreign guardianship is brought under s. 54.34 (3), to review the scope of a guardianship, to provide protective placement to an individual or order protective services under ch. 55, to review any protective placement or protective service order under s. 55.18, to terminate a protective placement under s. 55.17, to expand an order of guardianship under s. 54.63, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, to expand an order of guardianship under s. 54.63, to review incompetency and terminate a guardianship under s. 54.64, to review the conduct of a guardian under s. 54.68, or at any other time that the court determines it is necessary.

SB731, s. 21 Section 21. 54.42 (1) (c) of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,10,13 54.42 (1) (c) If par. (a) 1., 2., or 3. applies but the proposed ward or ward is unable to obtain legal counsel, the court shall appoint legal counsel. If the proposed ward or ward is represented by counsel appointed under s. 977.08 in a proceeding under a petition for protective placement brought under s. 55.075, the court shall order the counsel appointed under s. 977.08 to represent the proposed ward or ward.

SB731, s. 22 Section 22. 54.48 of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,10,20 54.48 Protective placement and protective services. A finding of incompetency and appointment of a guardian under this chapter is not grounds for involuntary protective placement or the provision of protective services. Protective placement and the provision of protective services may be made only in accordance with ch. 55.

SB731, s. 23 Section 23. 54.75 of the statutes, as affected by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,11,3 54.75 Access to court records. All court records pertinent to the finding of incompetency are closed but subject to access as provided in s. 51.30, 55.22, or under an order of a court under this chapter. The fact that an individual has been found incompetent and the name of and contact information for the guardian is accessible to any person who demonstrates to the custodian of the records a need for that information.

SB731, s. 24 Section 24. 55.001 of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB731,11,20 55.001 Declaration of policy. The legislature recognizes that many citizens of the state, because of serious and persistent mental illness, degenerative brain disorders, developmental disabilities, or other like incapacities, are in need of protective services or protective placement. Except as provided in s. 49.45 (30m) (a), the protective services or protective placement should, to the maximum degree of feasibility under programs, services and resources that the county board of supervisors is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds, allow the individual the same rights as other citizens, and at the same time protect the individual from financial exploitation, abuse, neglect, and self-neglect. This chapter is designed to establish those protective services and protective placements, to assure their availability to all individuals when in need of them, and to place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, financial exploitation, neglect, and self-neglect.

SB731, s. 25 Section 25 . 55.01 (1v) of the statutes, as created by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB731,12,2 55.01 (1v) "Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.

SB731, s. 26 Section 26. 55.01 (2) of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB731,12,12 55.01 (2) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism or another neurological condition closely related to mental retardation or requiring treatment similar to that required for individuals with mental retardation, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.

SB731, s. 27 Section 27. 55.01 (4g) of the statutes, as created by 2005 Wisconsin Act 388, is renumbered 55.01 (4i).

SB731, s. 28 Section 28. 55.01 (6) of the statutes, as created by 2005 Wisconsin Act 388, is renumbered 55.01 (6u).

SB731, s. 29 Section 29. 55.01 (6d) of the statutes, as created by 2005 Wisconsin Act 388, is renumbered 55.01 (6vm).

SB731, s. 30 Section 30. 55.01 (6g) of the statutes, as created by 2005 Wisconsin Act 388, is renumbered 55.01 (6w).

SB731, s. 31 Section 31. 55.01 (6t) of the statutes, as created by 2005 Wisconsin Act 387, is renumbered 55.01 (6s).

SB731, s. 32 Section 32. 55.01 (6v) of the statutes, as created by 2005 Wisconsin Acts 264 and 387, is repealed and recreated to read:

SB731,13,9 55.01 (6v) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.

SB731, s. 33 Section 33. 55.02 of the statutes, as affected by 2005 Wisconsin Acts 264, 387 and 388, is repealed and recreated to read:

SB731,13,13 55.02 Protective services and protective placement: duties. (1) Department duties. (a) The department shall do all of the following:

SB731,13,17 1. Cooperate with county departments to develop and operate a coordinated, statewide system for protective services and protective placement. The protective services and protective placement system shall be designed to encourage independent living and to avoid protective placement whenever possible.

SB731,13,19 2. Monitor and supervise the implementation and operation of the protective services and protective placement system.

SB731,13,21 3. Provide technical assistance to county departments providing protective services and protective placement.

SB731,13,22 4. Evaluate the protective services and protective placement system.

SB731,13,24 (b) The department may provide protective services and protective placement directly or contract for the provision of protective services or protective placement.

SB731,14,8 (2) County department duties. (a) The chairperson of each county board of supervisors shall designate a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 that is providing services in the county on its own or through a joint mechanism with another county department or county to have the responsibility for planning for the provision of protective services and protective placement and for directly providing protective services, protective placement, or both, or entering into a contract under s. 46.036 with a responsible agency for the provision of protective services, protective placement, or both.

SB731,14,10 (b) In addition to the responsibilities specified in par. (a), the county department shall:

SB731,14,11 1. Monitor and evaluate protective services and protective placements.

SB731,14,13 2. Prepare and submit reports required by the department, or by a court if protective services or protective placement are ordered by a court.

SB731,14,15 3. Develop requirements for submittal by guardians of the person of reports to the county department under s. 54.25 (1) (a).

SB731,14,18 4. Designate at least one appropriate medical facility or protective placement facility as an intake facility for the purpose of emergency protective placements under s. 55.135.

SB731, s. 34 Section 34. 55.03 (1) of the statutes, as affected by 2005 Wisconsin Act 264, is amended to read:

SB731,14,23 55.03 (1) Agency as guardian Guardian as provider. No agency acting as a guardian appointed under ch. 54 or ch. 880, 2003 stats., may be a provider of protective services or protective placement for its ward under this chapter.

SB731, s. 35 Section 35. 55.03 (3) of the statutes, as affected by 2005 Wisconsin Act 264, is amended to read:

SB731,15,5 55.03 (3) Guardian authority and responsibility applicable to parent of minor. Where any responsibility or authority is created under this chapter upon or in relation to a guardian, the responsibility or authority is deemed to apply to a parent or person in the place of a parent in the case of a minor who is or who is alleged to be developmentally disabled have developmental disability.

SB731, s. 36 Section 36. 55.043 (1r) (b) 2. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB731,15,10 55.043 (1r) (b) 2. Observation of or an interview with the adult at risk, in private to the extent practicable, and with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

SB731, s. 37 Section 37. 55.043 (1r) (c) 2. c. of the statutes, as affected by 2005 Wisconsin Acts 264 and 388, is repealed and recreated to read:

SB731,15,13 55.043 (1r) (c) 2. c. The examination is authorized by order of a court.

SB731, s. 38 Section 38. 55.043 (4) (am) of the statutes, as created by 2005 Wisconsin Act 388, is amended to read:

SB731,15,21 55.043 (4) (am) Upon responding to a report, the adult-at-risk agency or the investigative agency shall determine whether the adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 46, 47, 59 49, 51, or 880 54. If provided, direct services shall be rendered under the least restrictive conditions necessary to achieve their objective.