55.06 AnnotationGuardianships & Protective Placements. Viney. Wis. Law. Aug. 1991.
55.06 AnnotationGuardianships and Protective Placements in Wisconsin After Agnes T. Fennell. Wis. Law. May 1995.
55.06 NoteNOTE: The above annotations relate to protective placements under this chapter prior to the revision of this chapter by 2005 Wis. Act 264. 55.06 AnnotationThe 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 this chapter 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 an order under this chapter 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 AnnotationRehabilitation 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. 55.07555.075 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. 55.0855.08 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 AnnotationUnder s. 55.17, the court may order a termination of a protective placement only if the standards in sub. (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 County Department of Health & Human Services v. Susan H., 2010 WI App 82, 326 Wis. 2d 246, 785 N.W.2d 677, 09-1997. 55.08 Annotation“Care” in sub. (1) (c) means that the person’s incapacity to provide for the person’s 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 County Department of Health & Human Services v. Susan H., 2010 WI App 82, 326 Wis. 2d 246, 785 N.W.2d 677, 09-1997. 55.0955.09 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. 55.1055.10 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)(a)(a) Counsel. 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 refer the individual to the state public defender as provided under s. 55.105 for appointment of 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 ch. 54, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected. 55.10(4)(b)(b) Guardian ad litem; costs. The court shall in all cases require the appointment of an attorney as guardian ad litem in accordance with s. 757.48 (1). The responsibilities and duties of a guardian ad litem on behalf of a proposed ward or individual who is alleged incompetent specified in s. 54.40 apply to a guardian ad litem appointed in a proceeding for protective services or protective placement on behalf of an individual sought to be protected. If a guardian has been appointed for an individual who is the subject of a petition for court-ordered protective placement or protective services, the guardian ad litem shall interview the guardian. The guardian ad litem shall be present at all hearings under this chapter if the individual sought to be protected does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. If the individual sought to be protected is an adult who is indigent, the county shall be liable for any fees due the guardian ad litem. If the individual sought to be protected is a minor, the minor’s parents or the county in which the hearing is held shall be liable for any fees due the guardian ad litem as provided in s. 48.235 (8). 55.10(4)(c)(c) Trial by jury; right to cross examine witnesses. The individual sought to be protected has the right to a trial by a jury if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The number of jurors shall be determined under s. 756.06 (2) (b). The individual sought to be protected, and the individual’s attorney and guardian ad litem have the right to present and cross-examine witnesses, including any person making an evaluation or review under s. 55.11. 55.10(4)(d)(d) Standard of proof. Before protective placement or protective services may be ordered under s. 55.12, the court or jury must find by clear and convincing evidence that the individual to be protected is in need of protective placement because he or she meets all of the standards under s. 55.08 (1) or is in need of protective services because he or she meets all of the standards under s. 55.08 (2). 55.10(4)(e)(e) Independent evaluation. The individual sought to be protected has the right to secure an independent evaluation as provided in s. 55.11 (2). 55.10 AnnotationThe statutory provisions for an interested person’s formal participation in guardianship and protective placement hearings are specific and limited. No statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections. A court could consider such participation helpful and, in its discretion, could allow an interested person to participate to the extent it considers appropriate. Coston v. Joseph P., 222 Wis. 2d 1, 586 N.W.2d 52 (Ct. App. 1998), 97-1210. 55.10 AnnotationSection 907.03 does not allow the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. While in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions, procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B., 2003 WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377, 03-0967. 55.10 NoteNOTE: The above annotations relate to protective placements under this chapter prior to the revision of this chapter by 2005 Wis. Act 264. 55.10 AnnotationIt would be unreasonable to not permit a forfeiture of the right to attend the hearing regardless of the respondent’s conduct. The right may be forfeited if after having been warned by the judge that the respondent will be removed if the respondent continues the disruptive behavior, the respondent nevertheless insists on conducting himself or herself in a manner so disorderly, disruptive, and disrespectful of the court that the hearing cannot be carried on with the respondent in the courtroom. Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450, 09-0804. 55.10 AnnotationThe guardianship and protective placement statutes give certain rights under sub. (4) and s. 54.42 (5) to an individual who is the subject of a guardianship or protective placement petition, including the “right to be present” at the final hearing on the petition. Sub. (2) and s. 54.44 (4) (a) also require a petitioner to ensure that the individual who is the subject of a petition “attends” the final hearing, unless the individual’s guardian ad litem waives the attendance. Waiver, in this context, requires some affirmative relinquishment on the part of the holder. Those statutes protect an individual’s right to be physically present in the room where the hearing is held. Racine County v. P.B., 2022 WI App 62, 405 Wis. 2d 383, 983 N.W.2d 721, 22-0765. 55.10555.105 Appointment of counsel. 55.105(1)(1) In any situation under this chapter in which an adult individual has a right to be represented by legal counsel, the individual shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the individual under s. 977.08 without a determination of indigency. 55.105(2)(2) In any situation under this chapter in which a minor has a right to be represented by legal counsel, legal counsel for the minor shall be appointed as provided in s. 48.23 (4). 55.105(3)(3) Notwithstanding subs. (1) and (2), an individual subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense. 55.105 HistoryHistory: 2007 a. 20. 55.10755.107 Reimbursement of counsel provided by the state. 55.107(1)(1) At or after the conclusion of a proceeding under this chapter in which the state public defender has provided legal counsel for an adult individual, the court may inquire as to the individual’s ability to reimburse the state for the costs of representation. If the court determines that the individual is able to make reimbursement for all or part of the costs of representation, the court may order the individual to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court’s request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court. 55.107(2)(2) Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L). 55.107(3)(3) By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year. 55.107 HistoryHistory: 2007 a. 20. 55.1155.11 Comprehensive evaluation; recommendations; statements. 55.11(1)(1) Before ordering protective placement or protective services for any individual, the court shall require a comprehensive evaluation of the individual sought to be protected, if such an evaluation has not already been made. The court may utilize available multidisciplinary resources in the community in determining the need for protective placement or protective services. The county department or an agency with which it contracts under s. 55.02 (2) shall cooperate with the court in securing available resources. The court or the cooperating agency obtaining the evaluation shall request appropriate information which shall include at least the following: 55.11(1)(a)(a) The address of the place where the individual is residing and the person or agency who is providing services at present, if any. 55.11(1)(b)(b) A resume of any professional treatment and services provided to the individual by the department or agency in connection with the problem creating the need for protective placement or protective services. 55.11(1)(c)(c) A medical, psychological, social, vocational, and educational evaluation and review, if necessary, and any recommendations for or against maintenance of partial legal rights as provided in s. 54.25 (2). The evaluation and review shall include recommendations for the individual’s placement that are consistent with the requirements of s. 55.12 (3), (4), and (5). 55.11(2)(2) If requested by the individual sought to be protected, or anyone on the individual’s behalf, the individual sought to be protected has the right at his or her own expense, or, if indigent, at the expense of the county where the petition is filed, to secure an independent comprehensive evaluation, if an independent comprehensive evaluation has not already been made. The individual, or anyone on the individual’s behalf, may present a report of this independent comprehensive evaluation or the evaluator’s personal testimony as evidence at the hearing. 55.11(3)(3) A copy of the comprehensive evaluation and any independent comprehensive evaluation shall be provided to the individual’s guardian, agent under any activated health care power of attorney, and guardian ad litem, and to the individual or the individual’s attorney at least 96 hours in advance of the hearing to determine protective placement or protective services. 55.11(4)(4) Where applicable by reason of the particular disability, the county department or an agency with which it contracts under s. 55.02 (2) that has responsibility where the individual has legal residence shall make a recommendation for protective placement or protective services. 55.11(5)(5) If the court is considering protective placement of the individual in a center for the developmentally disabled, the court shall request a statement or testimony from the department regarding whether the protective placement is appropriate for the individual’s needs and whether it is consistent with the purpose of the center under s. 51.06 (1). 55.11(6)(6) If the individual has a developmental disability and the court is considering protective placement of the individual in an intermediate facility or a nursing facility, the court shall request a statement or testimony from the county department of the individual’s county of residence that is participating in the program under s. 46.278 as to whether the individual’s needs could be met in a noninstitutional setting, except that, if s. 46.279 (4m) applies to the individual, the court shall request the statement or testimony from the department, rather than the county department. 55.11 AnnotationA proposed ward’s rightful refusal to participate in a court-ordered evaluation will not obstruct a guardianship and protective placement proceeding. Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon. Walworth County v. Therese B., 2003 WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377, 03-0967. 55.11 NoteNOTE: The above annotation relates to protective placements under this chapter prior to the revision of this chapter by 2005 Wis. Act 264.
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