55.043 Note
NOTE: 2005 Wis. Act 388 made major revisions to this section and contains extensive explanatory notes.
55.045
55.045
Funding. Except as provided in
s. 49.45 (30m) (a), the appropriate county department shall within the limits of available state and federal funds and of county funds required to be appropriated to match state funds, provide for the reasonable program needs of individuals who are provided protective placement or who receive protective services under this chapter, including reasonable expenses for the evaluations required by
s. 55.11. Payment and collections for protective placement or protective services provided in public facilities specified in
s. 46.10 shall be governed in accordance with
s. 46.10. The department may require that an individual who is provided protective placement or receives protective services under this chapter provide reimbursement for services or care and custody received, based on the ability of the individual to pay for such costs.
55.05
55.05
Voluntary protective services. 55.05(1)
(1)
Preference. The department in administering the protective services program shall contract with county departments and other agencies. If the county department contracts for protective services, the department and the county departments shall give preference to an agency with consumer and other citizen representation. The department shall provide services only if no other suitable agency is available. Courts shall adhere to the same preferences in ordering protective services.
55.05(2)
(2) Conditions required. The department or a county department or agency with which the county department contracts under
s. 55.02 (2) that provides protective services may provide the services under any of the following conditions:
55.05(2)(a)
(a) An individual who needs or believes he or she needs protective services requests the services.
55.05(2)(b)
(b) An interested person requests protective services on behalf of an individual in need of services. A guardian may request and consent to protective services on behalf of the guardian's ward. An agent under an activated power of attorney for health care may request and consent to protective services on behalf of the agent's principal.
55.05(3)
(3) Voluntary protective services preferred. An individual shall receive protective services voluntarily unless ordered by the court under
s. 55.12, requested by the individual's guardian or agent under an activated power of attorney for health care, or provided on an emergency basis in accordance with
s. 55.13.
55.055
55.055
Admissions initially made without court involvement. 55.055(1)(a)(a) The guardian of an individual who has been adjudicated incompetent 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. 55.12 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 that right.
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(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
s. 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 other 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 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). See also s. 54.34 (2m).
55.055 Annotation
Under s. 55.17, the court may order a termination of a protective placement only if the standards in s. 55.08 (1) are no longer met; if they are met, the court must order a continuation, though it may change the placement if the person is not in the least restrictive setting. Nowhere does s. 55.17 provide that the court may terminate an order for protective placement if under s. 55.055 (1) the person could remain in the facility without a protective order. Jackson Co. Department of Health and Human Services v. Susan H.
2010 WI App 82,
326 Wis. 2d 246,
785 N.W.2d 677,
09-1997.
55.055 Annotation
Guardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
55.055 Note
NOTE: The above annotations relate to protective placements under ch. 55, stats., prior to the revision of that chapter by
2005 Wis. Act 264.
55.06
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 have a developmental disability 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 adjudicated incompetent in this state or for a minor who is alleged to have a developmental disability, and only if there is a finding of a need for protective placement under
s. 55.08 (1), 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;
2007 a. 45.
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.
55.06 Note
NOTE: The above annotations relate to protective placements under ch. 55, stats., prior to the revision of that chapter by
2005 Wis. Act 264.
55.06 Annotation
The ch. 55 exclusion in s. 51.20 (1) (a) 2. e. includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability. This exclusion may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one. Involuntary administration of medication under this section may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual's circumstances. Dane County v. Kelly M.
2011 WI App 69,
333 Wis. 2d 719,
798 N.W.2d 697,
10-1486.
55.06 Annotation
Rehabilitation is a necessary element of treatment under ch. 51. Because there are no techniques that can be employed to bring about rehabilitation from Alzheimer's disease, an individual with the disease cannot be rehabilitated. Accordingly, an Alzheimer's patient is not a proper subject for ch. 51 treatment. Fond du Lac County v. Helen E. F.
2012 WI 50,
340 Wis. 2d 500,
814 N.W.2d 179,
10-2061.
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 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(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 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(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 for finances and property under
ch. 244 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 extraordinary circumstances including those specified under
s. 51.22 (4). If an individual has not received services under this chapter or
ch. 46 or
51 or if an individual has received services under this chapter or
ch. 46 or
51 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.
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. (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. 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.
55.08
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) The individual is a minor who is not alleged to have a developmental disability and on whose behalf a petition for guardianship has been submitted, or is an adult who has been determined to be incompetent by a circuit court.
55.08(1)(c)
(c) As a result of developmental disability, 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(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 have a developmental disability and on whose behalf a petition for a guardianship has been submitted.
55.08(2)(b)
(b) As a result of developmental disability, 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 Annotation
Under s. 55.17, the court may order a termination of a protective placement only if the standards in s. 55.08 (1) are no longer met; if they are met, the court must order a continuation, though it may change the placement if the person is not in the least restrictive setting. Nowhere does s. 55.17 provide that the court may terminate an order for protective placement if under s. 55.055 (1) the person could remain in the facility without a protective order. Jackson Co. Department of Health and Human Services v. Susan H.
2010 WI App 82,
326 Wis. 2d 246,
785 N.W.2d 677,
09-1997.
55.08 Annotation
“Care" in sub. (1) (c) means that the person's incapacity to provide for his or her daily needs creates a substantial risk of serious harm to the person or others. The only reasonable construction of the “custody" alternative in sub. (1) (c) is that the person cannot provide for himself or herself the protection from abuse, financial exploitation, neglect, and self-neglect that the control and supervision by others can provide. Jackson Co. Department of Health and Human Services v. Susan H.
2010 WI App 82,
326 Wis. 2d 246,
785 N.W.2d 677,
09-1997.
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.
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.
55.10
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.
