Chapter 55

55.15(8) (8) Standard for transfer. In determining whether to approve a proposed transfer or an emergency transfer made under sub. (5) (b), the court shall consider all of the following:

55.15(8)(a) (a) Whether the requirements of s. 55.12 (2) and (6) are met.

55.15(8)(b) (b) Whether the protective placement is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5) or, if the transfer is to an intermediate facility or nursing facility, is in the most integrated setting, as defined in s. 46.279 (1) (bm).

55.15(8)(c) (c) Whether the protective placement is in the best interests of the person under protective placement.

55.15(9) (9) Order relating to transfer. Following the hearing under sub. (7), the court shall do one of the following:

55.15(9)(a) (a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual’s proposed protective placement does not meet the standards for transfer under sub. (8), the court shall issue an order prohibiting the transfer. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards under sub. (8) in support of the denial of the transfer.

55.15(9)(b) (b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the proposed transfer meets the standard under sub. (8), the court shall approve the proposed transfer. The court may order protective services along with transfer of protective placement. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards in s. 55.08 (1) in support of the need for continued protective placement.

55.15(9)(c) (c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17.

55.15 History History: 2005 a. 264; 2007 a. 20, 45.

55.15 Annotation Based on principles of comity and the orderly administration of justice, this case sets forth standards for Wisconsin courts to follow when confronted with the transfer of interstate guardianships. Grant County Department of Social Services v. Unified Board, 2005 WI 106, 283 Wis. 2d 258, 700 N.W.2d 863, 03-0634.

55.15 Annotation Former s. 55.06 (9) (b), 2003 stats., did not authorize a guardian to move the ward out of state, change the ward’s domicile, and transfer the guardianship to Connecticut, all without prior approval. Linda L. v. Collis, 2006 WI App 105, 294 Wis. 2d 637, 718 N.W.2d 205, 05-0494.

55.15 Note NOTE: The above annotations relate to protective placements under this chapter prior to the revision of this chapter by 2005 Wis. Act 264.

55.16 55.16 Modification of an order for protective placement or protective services.

55.16(1) (1) Use of transfer provisions. If a petitioner is an entity authorized under s. 55.15 (2) to transfer an individual under a protective placement and the modification sought is a transfer of an individual between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility that is not a psychiatric facility, the petitioner may utilize the procedure in s. 55.15 in lieu of the procedure under this subsection.

55.16(2) (2) Petition.

55.16(2)(a) (a) Filing; services. Subject to par. (d), an individual under protective placement or receiving protective services, the individual’s guardian, the individual’s legal counsel or guardian ad litem, if any, the department, the county department that placed the individual or provided the protective services under an order of the court, an agency with which the county department contracts under s. 55.02 (2), or any interested person may file a petition at any time for modification of an order for protective services or protective placement. The petition shall be served on the individual, the individual’s guardian, the individual’s legal counsel and guardian ad litem, if any, and the county department.

55.16(2)(b) (b) Modification of an order for protective placement; allegations. A petition for modification of an order for protective placement shall make one of the following allegations:

55.16(2)(b)1. 1. That the protective placement is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5).

55.16(2)(b)2. 2. That a protective placement in a facility with a higher level of restrictiveness would be more consistent with the requirements of s. 55.12 (3), (4), and (5).

55.16(2)(b)3. 3. That a protective placement in a different facility with the same level of restrictiveness as the current placement would be more consistent with the requirements of s. 55.12 (4) and (5) for reasons unrelated to the level of restrictiveness.

55.16(2)(c) (c) Modification of an order for protective services; allegations.

55.16(2)(c)1. 1. A petition for modification of an order for protective services, other than an order under s. 55.14, shall allege that the protective services are not provided in the least restrictive environment or manner that is consistent with the requirements of s. 55.12 (3), (4), and (5).

55.16(2)(c)2. 2. A petition for modification of an order under s. 55.14 shall allege that modification of the order or the treatment plan for the individual would be in his or her best interests.

55.16(2)(d) (d) Residents of southern center. The department may not file a petition under par. (a) for modification of an order for protective placement to transfer a resident of the southern center for the developmentally disabled to a less restrictive setting unless the resident’s guardian provides explicit written approval and consent for the transfer under s. 51.35 (1) (dm).

55.16(3) (3) Hearing.

55.16(3)(a) (a) The court shall order a hearing within 21 days after the filing of a petition under sub. (2), except that the court is not required to order a hearing if a hearing on a court-ordered protective placement for the individual or on a petition for court-ordered protective services or transfer of protective placement with respect to the individual has been held within the previous 6 months.

55.16(3)(b) (b) The court may extend the 21-day limitation in par. (a) if requested by the individual or the individual’s guardian, guardian ad litem, or legal counsel.

55.16(3)(c) (c) The hearing shall be subject to s. 55.10.

55.16(4) (4) Order modification for individual under protective placement. After a hearing under sub. (3) on a petition for modification of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

55.16(4)(a) (a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual’s protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order continuation of the protective placement in the facility in which the individual resides at the time of the hearing.

55.16(4)(b) (b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the protective placement of the individual is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order transfer of the individual to a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5). In lieu of ordering transfer of the individual to a specific facility, the court may order the county department of the individual’s residence to develop or recommend a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5), and arrange for the individual’s transfer to that protective placement within 60 days after the court’s order. The court may extend this time period to permit development of a protective placement. The court may order protective services along with transfer of protective placement.

55.16(4)(c) (c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17 (3) (c).

55.16(5) (5) Order modification for individual receiving court-ordered protective services.

55.16(5)(a) (a) After a hearing under sub. (3) on a petition for modification of an order for protective services, other than an order under s. 55.14, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

55.16(5)(a)1. 1. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the current protective services are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall continue the order for protective services.

55.16(5)(a)2. 2. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order protective services that are more consistent with those requirements. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3), (4), and (5).

55.16(5)(a)3. 3. If the court finds that the individual no longer meets the standards for protective services under s. 55.08 (2), the court shall terminate the order for protective services, as provided in s. 55.17 (4) (a) 3.

55.16(5)(b) (b) After a hearing under sub. (3) on a petition for modification of an order under s. 55.14, the court shall make one of the orders required under s. 55.19 (3) (e) and shall include in the order the information relied on as a basis for that order.

55.16 History History: 2005 a. 264; 2007 a. 45; 2009 a. 28.

55.17 55.17 Termination of an order for protective placement or protective services.

55.17(1) (1) Petition. An individual, the individual’s guardian or guardian ad litem, the department, a county department or agency with which it contracts under s. 55.02 (2), or any other interested person may file a petition at any time for termination of an order for protective placement or protective services. The petition shall be served on the individual; the individual’s guardian; the individual’s attorney and guardian ad litem, if any; and the county department. The petition shall allege that the individual no longer meets the standards under s. 55.08 (1) for court-ordered protective placement or under s. 55.08 (2) for court-ordered protective services.

55.17(2) (2) Hearing. A hearing under this section shall comply with s. 55.16 (3).

55.17(3) (3) Order for individual under protective placement. After a hearing under sub. (2) on a petition for termination of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

55.17(3)(a) (a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual’s protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order continuation of the individual’s protective placement in the facility in which he or she resides at the time of the hearing.

55.17(3)(b) (b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the protective placement of the individual is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall make an order specified in s. 55.16 (4) (b).

55.17(3)(c) (c) If the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement. If the protective placement is terminated, all of the following shall apply:

55.17(3)(c)1. 1. The court shall review the needs of the individual with respect to protective services. If the court determines that the individual meets the standards for protective services under s. 55.08 (2), the court may order protective services. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3), (4), and (5).

55.17(3)(c)2. 2. If the court determines that the individual does not meet the standards for protective services under s. 55.08 (2), and the individual is being transferred or discharged from his or her current residential facility, the county department shall assist the residential facility with discharge planning for the individual, including planning for a proper residential living arrangement and the necessary support services for the individual.

55.17(3)(c)3. 3. Any individual whose protective placement is terminated under this paragraph may reside in his or her current protective placement facility for up to 60 days after a determination under subd. 1. or 2. in order to arrange for an alternative living arrangement. If the protective placement facility has fewer than 16 beds, the individual may remain in the protective placement facility as long as the requirements of s. 55.055 are met. Admission by the individual, if an adult, to another residential facility shall be made under s. 55.055.

55.17(4) (4) Order for individual receiving court-ordered protective services.

55.17(4)(a) (a) After a hearing under sub. (2) on a petition for termination of an order for protective services, other than an order under s. 55.14, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

55.17(4)(a)1. 1. If the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall continue the order for protective services.

55.17(4)(a)2. 2. If the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the lease restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall make an order for protective services as provided in s. 55.16 (5) (a) 2.

55.17(4)(a)3. 3. If the individual no longer meets the standards for protective services under s. 55.08 (2), the court shall terminate the order for protective services.

55.17(4)(b) (b) After a hearing under sub. (2) on a petition for termination of an order under s. 55.14, the court shall make one of the orders required under s. 55.19 (3) (e) and shall include in the order the information relied on as a basis for that order.

55.17 History History: 2005 a. 264 ss. 142, 168; 2007 a. 45.

55.17 Annotation Under this section, 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 this section 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 County Department of Health & Human Services v. Susan H., 2010 WI App 82, 326 Wis. 2d 246, 785 N.W.2d 677, 09-1997.

55.175 55.175 Discharge from protective placement. Prior to discharge of an individual from a protective placement, the county department that is responsible for protective placement shall review the need for continuing protective services, continuation of full or limited guardianship, or, if the individual has no guardian, guardianship. If the county department’s recommendation includes a course of action for which court approval would be required, the county department shall make the recommendation to the court. Prior to discharge of the individual from any mental health institute or center for the developmentally disabled, the department shall make the review under s. 51.35 (7).

55.175 History History: 2005 a. 264 s. 151; 2005 a. 387 s. 119; 2007 a. 45.

55.18 55.18 Annual review of protective placement. All of the following shall be performed with respect to any individual who is subject to an order for protective placement under s. 55.12 or to an order for protective placement initially issued under s. 55.06 (9) (a), 2003 stats.:

55.18(1) (1) County department performance of review.

55.18(1)(a) (a) The county department of the individual’s county of residence shall, except as provided in sub. (1m), annually review the status of each individual who has been provided protective placement. The review shall include a visit to the individual and a written evaluation of the physical, mental and social condition of the individual and the service needs of the individual. The review shall be made a part of the permanent record of the individual. The county department shall inform the guardian of the individual of the review at the time the review is made and shall, before completing a report of the review, invite the individual and the guardian to submit comments or information concerning the individual’s need for protective placement or protective services. Not later than the first day of the 11th month after the initial order is made for protective placement for an individual and, except as provided in par. (b), annually thereafter, the county department shall do all of the following:

55.18(1)(a)1. 1. File a report of the review with the court that ordered the protective placement. The report shall include information on all of the following:

55.18(1)(a)1.a. a. The functional abilities and disabilities of the individual at the time the review is made, including the needs of the individual for health, social, or rehabilitation services, and the level of supervision needed.

55.18(1)(a)1.b. b. The ability of community services to provide adequate support for the individual’s needs.

55.18(1)(a)1.c. c. The ability of the individual to live in a less restrictive setting.

55.18(1)(a)1.d. d. Whether sufficient services are available to support the individual and meet the individual’s needs in the community and if so, an estimate of the cost of the services, including the use of county funds.

55.18(1)(a)1.e. e. Whether the protective placement order should be terminated or whether the individual should be placed in another facility with adequate support services that places fewer restrictions on the individual’s personal freedom, is closer to the individual’s home community, or more adequately meets the individual’s needs, including any recommendation that is made during the reporting period by the county department with respect to termination of the protective placement or placement of the individual in another facility.

55.18(1)(a)1.f. f. The comments of the individual and the individual’s guardian during the performance of the review, as summarized by the county department, and the response of the county department to the comments.

55.18(1)(a)1.g. g. The comments, if any, of a staff member at the facility in which the individual is placed that are relevant to the review of the individual’s placement.

55.18(1)(a)2. 2. File with the court under subd. 1. a petition for annual review by the court of the protective placement ordered for the individual.

55.18(1)(a)3. 3. Provide the report under subd. 1. to the individual and the guardian of the individual, and to the individual’s agent under an activated power of attorney for health care, if any.

55.18(1)(ar) (ar) If the individual has a developmental disability and is protectively placed in an intermediate facility or a nursing facility, the agency that is responsible for the protective placement shall notify in writing the county department of the county of residence of the individual that is participating in the program under s. 46.278 or, if s. 46.279 (4m) applies to the individual, the department, at least 120 days before the review. The county department so notified or, if s. 46.279 (4m) applies, the department’s contractor, shall develop a plan under s. 46.279 (4) and furnish the plan to the court that ordered the protective placement and to the individual’s guardian. The court shall order that the individual be transferred to the noninstitutional community setting in accordance with the plan unless the court finds that protective placement in the intermediate facility or nursing facility is the most integrated setting, as defined in s. 46.279 (1) (bm), that is appropriate to the needs of the individual taking into account information presented by all affected parties.

55.18(1)(b) (b) If, following an annual review of an individual’s status under par. (a), the individual or the individual’s guardian or guardian ad litem requests modification or termination of the individual’s protective placement and a hearing under the requirements of s. 55.10 (2) to (4) is provided, or if a hearing under the requirements of s. 55.10 (2) to (4) is provided pursuant to a petition for modification or termination of the protective placement, the county is not required to initiate a subsequent review of the individual’s status under par. (a) until the first day of the 11th month after the date that the court issues a final order after the hearing.

55.18(1)(bm) (bm) If the individual is subject to an order for involuntary administration of psychotropic medication under s. 55.14, the review under par. (a) shall be conducted simultaneously with the review under s. 55.19.

55.18(1)(c) (c) The review under par. (a) may not be conducted by a person who is an employee of the facility in which the individual resides.

55.18(1m) (1m) County agreement. The county of residence of an individual whose placement is in a different county may enter into an agreement with that county under which the county of the individual’s placement performs all or part of the duties of the county of residence under this section.

55.18(2) (2) Guardian ad litem appointment and report. After a county department has filed a report with a court under sub. (1) (a) 1., the court shall appoint a guardian ad litem in accordance with s. 757.48 (1). The guardian ad litem shall do all of the following:

55.18(2)(a) (a) Review the report filed under sub. (1) (a) 1., the report required under s. 54.25 (1) (a), and any other relevant reports on the individual’s condition and placement.

55.18(2)(b) (b) Meet with the individual and contact the individual’s guardian and orally explain to the individual and guardian all of the following:

55.18(2)(b)1. 1. The procedure for review of protective placement.

55.18(2)(b)2. 2. The right of the individual to appointment of legal counsel under sub. (3) (c).

55.18(2)(b)3. 3. The right to an evaluation under sub. (3) (b).

55.18(2)(b)4. 4. The contents of the report under sub. (1) (a) 1.

55.18(2)(b)5. 5. That a change in or termination of protective placement may be ordered by the court.

55.18(2)(b)6. 6. The right to a hearing under sub. (3) (d) and an explanation that the individual or the individual’s guardian may request a hearing that meets the requirements under s. 55.10 (2) to (4).

55.18(2)(c) (c) Provide the information required under par. (b) to the individual and to the individual’s guardian in writing.

55.18(2)(d) (d) Review the individual’s condition, placement, and rights with the individual’s guardian.

55.18(2)(e) (e) Ascertain whether the individual wishes to exercise any of his or her rights under sub. (3) (b), (c), or (d).