55.055(1)(b)
(b) The guardian of an individual who has been adjudicated incompetent may consent to the individual's admission to a nursing home or other facility not specified in
par. (a) for which protective placement is otherwise required for a period not to exceed 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 that right. Following the 60-day period, the admission may be extended for an additional 60 days if a petition for protective placement under
s. 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 for whom the primary purpose of admission is for treatment or services related to the individual's mental illness or developmental disability.
55.055 Note
NOTE: Par. (b) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
55.055(1)(c)
(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 to transfer a foreign guardianship and, if applicable, a petition for protective placement shall be filed in this state within 60 days after the ward's admission under this paragraph.
55.055(1)(d)
(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 to transfer a foreign guardianship and, if applicable, a petition for protective placement shall be filed in this state within 60 days after a ward's admission under this paragraph.
55.055(2)(a)(a) In this subsection, "facility" means any of the following:
55.055(2)(b)
(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.
55.055(3)
(3) If an individual admitted under
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 county department for the county in which the individual is living. Representatives of that county department shall visit the individual as soon as possible, but no later than 72 hours after notification, and do the following:
55.055(3)(a)
(a) Determine whether the protest persists or has been voluntarily withdrawn and consult with the individual's guardian regarding the reasons for the admission.
55.055(3)(b)
(b) Attempt to have the individual released within 72 hours if the protest is not withdrawn and 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.
55.055(3)(c)
(c) Comply with
s. 55.135, if 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. 55.075. The court, with the permission of the home, nursing home, or facility, may order the individual to remain in the home, nursing home, or other facility pending the outcome of the protective placement proceedings.
55.055(4)
(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.
55.055(5)
(5) If a ward lives with his or her guardian, the guardian may make temporary protective placement of the ward, to provide the guardian with a vacation or to release the guardian temporarily for a family emergency. 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 any information that the court may reasonably deem necessary. When reviewing the application, the court shall provide the least restrictive temporary protective placement that is consistent with the needs of the ward.
55.055 History
History: 2005 a. 264 ss.
101,
103 to
112,
150;
2005 a. 387; s. 13.93 (2) (c).
55.055 Annotation
A guardian of a person who became incompetent after voluntarily entering a nursing home with 16 or more beds may not consent to the person's continued residence in the home. Upon the appointment of a guardian, the court must hold a protective placement hearing. Guardianship of Agnes T.
189 Wis. 2d 520,
525 N.W.2d 268 (1995).
55.055 Annotation
Guardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
55.06
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 placement, an individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive placement upon attaining the age of 14. No protective placement under this section may be ordered unless there is an adjudication of incompetency in this state, except in the case of a minor who is alleged to be developmentally disabled, and there is a finding of a need for protective placement in accordance with
sub. (2) [
s. 55.08 (1)] except as provided in
subs. (11) and (12) [
ss. 55.135 and
55.055]. A procedure for adult protective placement may be initiated 6 months prior to an individual's birthday at which he or she first becomes eligible for placement.
Effective date text
55.06 Protective services and protective placement; eligibility. To be eligible for court-ordered protective placement or protective services, an individual shall have filed a petition to transfer a foreign guardianship, whether present in the state or not, or shall be a resident of the state; and shall 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. Protective placement or protective services may be ordered under this chapter only for an individual who is determined to be incompetent in accordance with ch. 880 or for a minor who is alleged to be developmentally disabled, and only if there is a finding of a need for protective placement under s. 55.12, and ss. 55.055 (5), 55.13, and 55.135 are inappropriate or do not apply. A procedure for court-ordered protective placement or protective services may be initiated 6 months before a minor attains age 18.
55.06 History
History: 1973 c. 284;
1975 c. 41;
1975 c. 94 s.
3;
1975 c. 189 s.
99 (2);
1975 c. 393,
421,
422;
1975 c. 430 ss.
67 to
71,
80;
1977 c. 26,
299,
428;
1977 c. 449 s.
497;
1979 c. 32 s.
92 (1);
1979 c. 110 s.
60 (1);
1979 c. 221;
1981 c. 314 s.
146;
1981 c. 379;
1983 a. 27;
1983 a. 189 s.
329 (19);
1983 a. 219;
1985 a. 29 ss.
1143,
3202 (23);
1987 a. 366;
1989 a. 31,
359;
1991 a. 269;
1993 a. 187,
451;
1995 a. 27,
92;
1997 a. 237,
283;
2001 a. 109;
2003 a. 33,
326;
2005 a. 253,
264,
387; s. 13.93 (2) (c).
55.06 Annotation
Guardianships and Protective Placements. Viney. Wis. Law. Aug. 1991.
55.06 Annotation
Guardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
55.075
55.075
Protective services or protective placement; petition. Except as provided in
s. 971.14 (6) (b):
55.075(1)
(1) Who may petition. The department, the county department or an agency 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 [the] individual. The department shall provide for a schedule of reimbursement for the cost of the proceedings based upon the ability to pay of the proposed ward or individual to be protected.
55.075 Note
NOTE: Sub. (1) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
2005 Wis. Act 387, but rendered surplusage by
2005 Wis. Act 264. Corrective legislation is pending.
55.075(2)(a)(a) 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.
55.075(2)(b)
(b) The petition shall be based on personal knowledge of the individual alleged to need protective placement or protective services.
55.075(3)
(3) Petition for guardianship; review of incompetency. A petition for guardianship described in
s. 55.08 (1) (b) or
(2) (a) shall be heard prior to ordering protective placement or protective services. If the individual is [incompetent] adjudicated [[incompetent]] in this state more than 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.
55.075 Note
NOTE: Sub. (3) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The single bracketed "incompetent" was inserted by
2005 Wis. Act 264 but the treatment by
2005 Wis. Act 387 resulted in incorrect placement of the word. The double bracketed "incompetent" indicates the correct placement of the word. Corrective legislation is pending.
55.075(4)(a)(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:
55.075(4)(a)1.
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.
55.075(4)(a)2.
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.
55.075(4)(a)3.
3. Whether the petition was contested and, if so, the nature of the contest.
55.075(4)(a)4.
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.
55.075(4)(a)5.
5. Any other factors that the court considers to be relevant.
55.075(4)(b)
(b) If a person seeking to be the guardian of a proposed ward requests the assistance of a county department or an agency with which it contracts under
s. 55.02 (2) in petitioning for guardianship or for protective services or protective placement, the assistance may be considered a service and may be charged for based upon the ability of the person to pay for the service.
55.075(5)
(5) Where a petition may be filed; venue; county of responsibility. 55.075(5)(a)(a) A petition under
sub. (1) shall be filed in the county of residence of the individual to be protected, as determined under
s. 51.40 or by the individual's guardian or where the individual is physically present due to circumstances including those specified under
s. 51.22 (4). If an individual has not received services under
ch. 46,
51, or
55 or if an individual has received services under
ch. 46,
51, or
55 that have been terminated and has established residence in a county other than that in which the individual resided when the services were received, the court may determine the individual's county of residence. The county of residence under this paragraph is the county of responsibility.
Effective date text
(a) A petition under sub. (1) shall be filed in the county of residence of the 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, or in the county in which the individual intends to reside. The county of residence, as determined by the court, under s. 51.40, or by the guardian, is the county of responsibility.
55.075(5)(b)
(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.
55.075(5)(bm)
(bm) The court in which a petition is first filed under
par. (c) [
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. (c) [
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. If any potentially responsible or affected county or party objects to the court's finding of venue, the court may refer the issue to the department for a determination of the county of residence under
s. 51.40 (2) (g) and may suspend ruling on the motion for change of venue until the determination under
s. 51.40 (2) (g) is final.
55.075 Note
NOTE: Par. (bm) was created as s. 55.06 (3) (d) by
2005 Wis. Act 387 and renumbered by the revisor under s. 13.93 (1) (b). The bracketed language indicates the correct cross-reference.
55.075 History
History: 2005 a. 264 ss.
114,
115,
123 to
126,
157;
2005 a. 387 ss.
110,
112,
113,
114; s. 13.93 (1) (b), (2) (c).
55.075 Annotation
"Residence" under former s. 55.06 (3) (c) [now sub. (5) (a)] is defined in s. 49.01 (8g).
76 Atty. Gen. 103.
55.08
55.08
Protective services or protective placement: standards. 55.08(1)(1)
Protective placement. A court may under
s. 55.12 order protective placement for an individual who meets all of the following standards:
55.08(1)(a)
(a) The individual has a primary need for residential care and custody.
55.08(1)(b)
(b) Except in the case of a minor who is alleged to be developmentally disabled, the individual has either been adjudicated incompetent by a circuit court, or has had submitted on the minor's behalf a petition for a guardianship;
55.08 Note
NOTE: Par. (b) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
55.08(1)(c)
(c) As a result of developmental disabilities, 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 himself or herself or others. Serious harm may be evidenced by overt acts or acts of omission.
55.08 Note
NOTE: Par. (c) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
55.08(1)(d)
(d) The individual has a disability that is permanent or likely to be permanent.
55.08(2)
(2) Protective services. A court may under
s. 55.12 order protective services for an individual who meets all of the following standards:
55.08(2)(a)
(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.
55.08(2)(b)
(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.
55.08 History
History: 2005 a. 264 ss.
119 to
122,
158;
2005 a. 387 s.
111;
2005 a. 388 s.
164; s. 13.93 (2) (c).
55.08 Annotation
A "common sense" finding of incompetency was insufficient for placement. If competent when sober, an alcoholic has the right to choose to continue an alcoholic lifestyle. Guardianship & Protective Placement of Shaw,
87 Wis. 2d 503,
275 N.W.2d 143 (Ct. App. 1979).
55.08 Annotation
A court's finding of limited incompetence under ch. 880 fulfills the incompetency requirement for protective placement. Matter of Guardianship of K. H. K.
139 Wis. 2d 190,
407 N.W.2d 281 (Ct. App. 1987).
55.08 Annotation
A circuit court must hold some form of hearing on the record, either a full due process hearing or a summary hearing, to continue a protective placement. The circuit court must also make findings based on the factors enumerated in former s. 55.06 (2) [now sub. (1)] in support of the need for continuation. County of Dunn v. Goldie H. 2001 WI 102,
245 Wis. 2d 538,
629 N.W.2d 189,
00-1137.
55.09
55.09
Notice of petition and hearing for protective services or placement. 55.09(1)(1)
Notice to individual. Notice of a petition for protective placement or protective services shall be served upon the individual sought to be protected, by personal service, at least 10 days before the time set for a hearing. 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. [individual adjudicated for a determination of incompetency]
55.09 Note
NOTE: Sub. (1) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
2005 Wis. Act 387 but rendered surplusage by
2005 Wis. Act 264. Corrective legislation is pending.
55.09(2)
(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:
55.09(2)(a)
(a) The guardian ad litem, legal counsel, and guardian, if any, of the individual sought to be protected.
55.09(2)(b)
(b) The agent under an activated power of attorney for health care, if any, of the individual sought to be protected.
55.09(2)(c)
(c) The presumptive adult heirs, if any, of the individual sought to be protected.
55.09(2)(d)
(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.
55.09(2)(f)
(f) Any governmental or private body or group from whom the individual sought to be protected is known to be receiving aid.
55.09(2)(g)
(g) Any other persons or entities that the court may require.
55.09(2)(h)
(h) The department, if the individual sought to be protected may be placed in a center for the developmentally disabled.
55.09(2)(i)
(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.
55.09(3)
(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.
55.09 History
History: 2005 a. 264 ss.
127,
159;
2005 a. 387 s.
115; s. 13.93 (2) (c).
55.10
55.10
Hearing on petition for protective services or protective placement. 55.10(1)
(1)
Time limits. A petition for protective placement 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 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.
55.10(2)
(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.
55.10(3)
(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.
55.10(4)
(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):
55.10(4)(a)
(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 [
ch. 54], the court shall order the counsel appointed under
s. 977.08 to represent under this section the individual sought to be protected.
