Chapter 55

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.

55.13(5) (5) If a forcible entry is made under sub. (4), a report of the exact circumstances, including the date, time, place, factual basis for the need of the entry, and the exact services rendered, shall be made and forwarded to the court within 14 days after entry by the person making the entry.

55.13 History History: 2005 a. 264 ss. 98, 99, 100, 163; 2007 a. 45.

55.135 55.135 Emergency and temporary protective placement.

55.135(1) (1) If, from personal observation of, or a reliable report made by a person who identifies himself or herself to, a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a county department or an agency with which it contracts under s. 55.02 (2), it appears probable that an individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed, the individual who personally made the observation or to whom the report is made may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making emergency protective placement shall prepare a statement at the time of detention providing specific factual information concerning the person’s observations or reports made to the person and the basis for emergency placement. The statement shall be filed with the director of the facility and with any petition under s. 55.075. At the time of emergency protective placement the individual shall be informed by the director of the facility or the director’s designee, orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 55.105. The director or designee shall also provide the individual with a copy of the statement by the person making emergency protective placement.

55.135(2) (2) Whoever signs a statement under sub. (1) knowing the information contained in the statement to be false is guilty of a Class H felony.

55.135(3) (3) A person who acts in accordance with this section is not liable for any actions performed in good faith.

55.135(4) (4) When an individual is detained under this section, a petition shall be filed under s. 55.075 by the person making the emergency protective placement and a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays and legal holidays, to establish probable cause to believe the grounds for protective placement under s. 55.08 (1). The sheriff or other person making emergency protective placement under sub. (1) shall provide the individual with written notice and orally inform him or her of the time and place of the preliminary hearing. If the detainee is not under guardianship, a petition for guardianship shall accompany the protective placement petition, except in the case of a minor who is alleged to have a developmental disability. In the event that protective placement is not appropriate, the court may elect to treat a petition for protective placement as a petition for commitment under s. 51.20 or 51.45 (13).

55.135(5) (5) Upon finding probable cause under sub. (4), the court may order temporary protective placement up to 30 days pending the hearing for a permanent protective placement, or the court may order such protective services as may be required. If the court orders under this subsection an individual who has a developmental disability to receive temporary protective placement in an intermediate facility or in a nursing facility, and if at the hearing for permanent protective placement the court orders that the individual be provided protective placement, the court may, before commencement of permanent protective placement, extend the temporary protective placement order for not more than 90 days if necessary for the county department that is participating in the program under s. 46.278 or, if s. 46.279 (4m) applies, the department’s contractor to develop the plan required under s. 46.279 (4).

55.135(6) (6) A law enforcement agency, fire department, or county department or agency with which it contracts under s. 55.02 (2) shall designate at least one employee authorized to take an individual into custody under this section who shall attend the in-service training on emergency detention and emergency protective placement offered by a county department of community programs under s. 51.42 (3) (ar) 4. d., if the county department of community programs serving the designated employee’s jurisdiction offers an in-service training program.

55.135 History History: 2005 a. 264 ss. 144 to 149, 164; 2005 a. 388 s. 165; 2007 a. 20, 45; 2009 a. 180.

55.135 Annotation When a placement extended past the 30-day limit under s. 55.06 (11) (c) [now sub. (5)] before a final hearing was held, the court lost authority to extend the placement. N.N. v. County of Dane, 140 Wis. 2d 64, 409 N.W.2d 388 (Ct. App. 1987).

55.135 Annotation Section 55.06 (11) (c) [now sub. (5)] required dismissal of the proceedings for failure to hold a permanent placement hearing within 30 days of the probable cause hearing; immediate refiling of the petition and emergency detention following dismissal without prejudice was impermissible. State ex rel. Sandra D. v. Getto, 175 Wis. 2d 490, 498 N.W.2d 892 (Ct. App. 1993).

55.135 Annotation An emergency protective placement must be based on personal observation by one of the individuals listed in s. 55.06 (11) (a) [now sub. (1)]. Costs could not be assessed against the subject of an emergency placement proceeding that was outside the statutory guidelines. Ethelyn I.C. v. Waukesha County, 221 Wis. 2d 109, 584 N.W.2d 211 (Ct. App. 1998), 97-2236.

55.135 Annotation A circuit court loses competence if the hearing under s. 55.06 (11) (b) [now sub. (4)] is not held within 72 hours after the person is first taken into custody. The filing of a new petition does not start the clock anew. Kindcare, Inc. v. Judith G., 2002 WI App 36, 250 Wis. 2d 817, 640 N.W.2d 839, 00-3450.

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

55.14 55.14 Involuntary administration of psychotropic medication.

55.14(1) (1) In this section:

55.14(1)(a) (a) “Involuntary administration of psychotropic medication” means any of the following:

55.14(1)(a)1. 1. Placing psychotropic medication in an individual’s food or drink with knowledge that the individual protests receipt of the psychotropic medication.

55.14(1)(a)2. 2. Forcibly restraining an individual to enable administration of psychotropic medication.

55.14(1)(a)3. 3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

55.14(1)(b) (b) “Not competent to refuse psychotropic medication” means that, as a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to an individual, one of the following is true:

55.14(1)(b)1. 1. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives to accepting treatment.

55.14(1)(b)2. 2. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her condition in order to make an informed choice as to whether to accept or refuse psychotropic medication.

55.14(1)(c) (c) “Protest” means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. “Protest” does not mean a discernible negative response to a proposed method of administration of the psychotropic medication.

55.14(1)(d) (d) “Psychotropic medication” means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

55.14(2) (2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service only under the requirements of this section.

55.14(3) (3) In addition to the other requirements of this chapter pertaining to petitions for protective services, a petition under this section shall allege that all of the following are true:

55.14(3)(a) (a) A physician has prescribed psychotropic medication for the individual.

55.14(3)(b) (b) The individual is not competent to refuse psychotropic medication.

55.14(3)(c) (c) The individual has refused to take the psychotropic medication voluntarily or attempting to administer psychotropic medication to the individual voluntarily is not feasible or is not in the best interests of the individual. If the petition alleges that the individual has refused to take psychotropic medication voluntarily, the petition shall identify the reasons, if known, for the individual’s refusal to take psychotropic medication voluntarily. The petition also shall provide evidence showing that a reasonable number of documented attempts to administer psychotropic medication voluntarily using appropriate interventions that could reasonably be expected to increase the individual’s willingness to take psychotropic medication voluntarily have been made and have been unsuccessful. If the petition alleges that attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual, the petition shall identify specific reasons supporting that allegation.

55.14(3)(d) (d) The individual’s condition for which psychotropic medication has been prescribed is likely to be improved by administration of psychotropic medication and the individual is likely to respond positively to psychotropic medication.

55.14(3)(e) (e) Unless psychotropic medication is administered involuntarily, the individual will incur a substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability of physical harm, impairment, injury, or debilitation shall be evidenced by one of the following:

55.14(3)(e)1. 1. The individual’s history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual’s failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement agreement approved by a court under s. 51.20 (8) (bg), or commitment ordered under s. 51.20 (13).

55.14(3)(e)2. 2. Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.