Chapter 55

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 History History: 2005 a. 264 ss. 119 to 122, 158; 2005 a. 387 s. 111; 2005 a. 388 s. 164; 2007 a. 45.

55.08 Annotation Under 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.

55.09 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)(e) (e) The county department.

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; 2007 a. 45.

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. Sections 54.42, 54.44, and 54.46 and 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. 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 History History: 2005 a. 264 ss. 128, 129, 130, 160; 2005 a. 387 s. 116; 2007 a. 20, 45; 2009 a. 180.

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

55.10 Annotation It 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 Annotation The 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.

55.105 55.105 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 History History: 2007 a. 20.

55.107 55.107 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 History History: 2007 a. 20.

55.11 55.11 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 History History: 2005 a. 264 ss. 131 to 134, 161; 2005 a. 387 s. 117; 2007 a. 45.

55.11 Annotation A 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 Note NOTE: The above annotation relates to protective placements under this chapter prior to the revision of this chapter by 2005 Wis. Act 264.

55.12 55.12 Order for protective services or protective placement.

55.12(1) (1) When ordering protective placement under the standards specified in s. 55.08 (1) or protective services under the standards specified in s. 55.08 (2), the court, on the basis of the evaluation and other relevant evidence, shall order the county department or agency with which it contracts under s. 55.02 (2) to provide protective placement or protective services to the individual.

55.12(2) (2) Subject to s. 46.279, protective placement may be made to nursing homes, public medical institutions, centers for the developmentally disabled under the requirements of s. 51.06 (3), foster care services or other home placements, or to other appropriate facilities, but may not be made to units for the acutely mentally ill. An individual who is subject to an order for protective placement or protective services may be detained on an emergency basis under s. 51.15 or involuntarily committed under s. 51.20 or may be voluntarily admitted to a treatment facility for inpatient care under s. 51.10 (8). No individual who is subject to an order for protective placement or services may be involuntarily transferred to, detained in, or committed to a treatment facility for care except under s. 51.15 or 51.20. Protective placement in a locked unit shall require a specific finding of the court as to the need for the action.

55.12(3) (3) Protective placement or protective services provided by a county department or an agency with which it contracts under s. 55.02 (2) are subject to s. 46.279 and shall be provided in the least restrictive environment and in the least restrictive manner consistent with the needs of the individual to be protected and with the resources of the county department.

55.12(4) (4) Factors that a county department shall consider in providing protective placement or protective services shall include the needs of the individual to be protected for health, social, or rehabilitative services; the level of supervision needed; the reasonableness of the placement or services given the cost and the actual benefits in the level of functioning to be realized by the individual; the limits of available state and federal funds and of county funds required to be appropriated to match state funds; and the reasonableness of the protective placement or protective services given the number or projected number of individuals who will need protective placement or protective services and given the limited funds available.

55.12(5) (5) Except as provided in s. 49.45 (30m), the county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to provide protective placement or protective services to an individual. Protective placement under this section does not replace commitment of an individual in need of acute psychiatric treatment under s. 51.20 or 51.45 (13).

55.12(6) (6) If the county department or agency with which it contracts under s. 55.02 (2) proposes to provide protective placement to an individual who has a developmental disability in an intermediate facility or a nursing facility under an order under this section, the county department or agency, or, if s. 46.279 (4m) applies to the individual, the department or the department’s contractor shall develop a plan under s. 46.279 (4) and furnish the plan to the county department or agency and to the individual’s guardian. The county department or agency with which it contracts under s. 55.02 (2) shall provide protective placement to the individual in a noninstitutional community setting in accord 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.

55.12(7) (7) If an individual to be protectively placed is a resident of a facility licensed for 16 or more beds, the court may consider whether moving the individual would create a serious risk of harm to that individual.

55.12(8) (8) The court may order protective services as an alternative to protective placement.

55.12(9) (9) The court may order psychotropic medication as a protective service only as provided in s. 55.14.

55.12(10) (10) 

55.12(10)(a) (a) If a court orders protective services or protective placement of an individual under this section and if an order has not been made under s. 54.10 (3) (f) for the individual, the court shall determine if, under 18 USC 922 (g) (4), the individual is prohibited from possessing a firearm. If the individual is prohibited, the court shall order the individual not to possess a firearm, order the seizure of any firearm owned by the individual, and inform the individual of the requirements and penalties under s. 941.29.

55.12(10)(b) (b)

55.12(10)(b)1. 1. If a court orders under par. (a) an individual not to possess a firearm, the individual may petition that court or the court in the county where the individual resides to cancel the order.

55.12(10)(b)2. 2. The court considering the petition under subd. 1. shall grant the petition if the court determines that the circumstances regarding the protective services or protective placement order under this section and the individual’s record and reputation indicate that the individual is not likely to act in a manner dangerous to public safety and that the granting of the petition would not be contrary to public interest.

55.12(10)(b)3. 3. If the court grants the petition under subd. 2., the court shall cancel the order under par. (a) and order the return of any firearm ordered seized under par. (a).

55.12(10)(c) (c) In lieu of ordering the seizure under par. (a), the court may designate a person to store the firearm until the order under par. (a) is canceled under par. (b) 3.

55.12(10)(d) (d) If the court orders under par. (a) an individual not to possess a firearm or cancels under par. (b) 3. an order issued under par. (a), the court clerk shall notify the department of justice of the order or cancellation and provide any information identifying the individual that is necessary to permit an accurate firearms restrictions record search under s. 175.35 (2g) (c), a background check under s. 175.60 (9g) (a), or an accurate response under s. 165.63. No other information from the individual’s court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose information provided under this paragraph only to respond to a request under s. 165.63, as part of a firearms restrictions record search under s. 175.35 (2g) (c), under rules the department of justice promulgates under s. 175.35 (2g) (d), or as part of a background check under s. 175.60 (9g) (a).

55.12 History History: 2005 a. 264 ss. 135, 162; 2007 a. 45; 2009 a. 258; 2013 a. 168 s. 21; 2013 a. 223.

55.12 Annotation A county’s duty under s. 55.06 (9) (a) [now sub. (1)] to provide the least restrictive environment is not limited according to funds available through state and federal funds and those that the county appropriates as matching funds. D.E.R. v. La Crosse County, 155 Wis. 2d 240, 455 N.W.2d 239 (1990).

55.12 Annotation A court may order an agency to do planning and implementation work necessary to fulfill the obligation to order placement conforming to s. 55.06 (9) (a) [now sub. (1)] and s. 51.61 (1) (e). Fond du Lac County v. J.G.S., 159 Wis. 2d 685, 465 N.W.2d 227 (Ct. App. 1990).

55.12 Annotation In protective placements under s. 55.06 (9) (a) [now sub. (1)], counties must make an affirmative showing of a good faith, reasonable effort to find an appropriate placement and to secure funding to pay for an appropriate placement. Counties bear the burden of showing whether funds are available and whether appropriate placements may be developed within the limits of required funds. Dunn County v. Judy K., 2002 WI 87, 254 Wis. 2d 383, 647 N.W.2d 799, 00-3135.

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

55.12 Annotation Section 752.31 (2) (d) and (3) provides that appeals in protective placement cases under this chapter are heard by a single court of appeals judge while the general rule under s. 752.31 (1) is that cases disposed of on the merits, including guardianship orders under ch. 54, are heard by a three-judge panel. When an appeal is taken from a single action granting both a guardianship and protective placement petition, the appeal is to be decided by a three-judge panel. Waukesha County v. Genevieve M., 2009 WI App 173, 322 Wis. 2d 131, 776 N.W.2d 640, 09-1755.

55.12 Annotation The Department of Workforce Development (DWD) does not possess authority to independently determine, for worker’s compensation purposes, the reasonableness and medical necessity of a protectively placed injured employee’s court-ordered transfer to the least restrictive environment under this chapter. DWD’s authority is limited to resolving disputes regarding the reasonableness or necessity of treatment provided to an injured employee, which permits DWD to evaluate the treatment an employee receives within a placement, but not the placement itself. LaBeree v. LIRC, 2010 WI App 148, 330 Wis. 2d 101, 793 N.W.2d 77, 09-1628.

55.13 55.13 Emergency protective services.

55.13(1) (1) Emergency protective services may be provided for not more than 72 hours when there is reason to believe that, if the emergency protective services are not provided, the individual entitled to the services or others will incur a substantial risk of serious physical harm.

55.13(2) (2) If the county department or agency with which the county department contracts under s. 55.02 (2) that is providing emergency protective services to an individual under sub. (1) has reason to believe that the individual meets the criteria for protective services under s. 55.08 (2), the county department or agency may file a petition under s. 55.075. If a petition is filed, a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays, and legal holidays, to establish probable cause that the criteria under s. 55.08 (2) are present. The county department or agency shall provide the individual with written notice and orally inform the individual of the time and place of the preliminary hearing. If the individual is not under guardianship, a petition for guardianship shall accompany the petition under s. 55.08 (2), except in the case of a minor who is alleged to have a developmental disability.

55.13(3) (3) Upon finding probable cause under sub. (2), the court may order emergency protective services to continue to be provided for up to 60 days pending the hearing on protective services under s. 55.10.

55.13(4) (4) If it is necessary to enter a premises forcibly to provide or investigate the need for emergency protective services, the staff member of a county department shall obtain a court order authorizing entry and shall make the entry accompanied by a sheriff, police officer, or member of a fire department. When it appears probable that substantial physical harm, irreparable injury, or death may occur to an individual, the police officer, fire fighter, or sheriff may enter a premises without a court order if the time required to obtain such an order would result in greater risk of physical harm to the individual.