Wisconsin Lawyer
Vol. 79, No. 8, August
2006
Landmark Reforms Signed into Law:
Guardianship and Adult Protective Services
The State Bar Elder Law Section's more than 10 year Guardianship
Reform Project has become law along with major reforms in reporting and
responding to abuse and neglect of adults at risk and adult placement
services and placement. If you represent clients who are elderly or have
disabilities, or the agencies and facilities that serve them, have
elderly parents or loved ones with disabilities, or if you plan to age
yourself - read this article to learn about critical changes in the
law.
by Betsy J. Abramson & Jane A. Raymond
ttorneys and other advocates for
older people and people with disabilities won a "triple crown" this past
legislative session, when the Wisconsin Legislature passed and Gov.
Doyle signed into law three major pieces of legislation affecting
guardianship, protective services and placement, and adult protection
systems. The laws' effective dates are delayed to provide adequate time
for professional education and the redesigning, if necessary, of court
forms.1
The three new laws address the following:
1) Reform of Wisconsin's Guardianship Law -
reorganizing and
modernizing Wisconsin's definitions and procedures related to
court-ordered guardianships: 2005 Act 387 (2005 S.B. 391), effective
Dec. 1, 2006.
2) Recodification of Wisconsin's Protective Services
Law -
reorganizing statutes, codifying court cases, codifying current
practices, and addressing confusing silent areas of the law related to
voluntary and court-ordered protective services, including psychotropic
medications and psychiatric admissions, and court-ordered protective
placements: 2005 Act 264 (2005 A.B. 785), effective Nov. 1, 2006.
3) Modernization of Wisconsin's Adult Protective Services
Systems - revising laws concerning the reporting of and
responses to
abuse and neglect of elders and vulnerable adults: 2005 Act 388 (2005
A.B. 539), effective Dec. 1, 2006.
Guardianship Reform
This new law resulted from the work of many dedicated members of the
State Bar of Wisconsin Elder Law Section and others for nearly a dozen
years.2 The section's draft legislation
reflected decades of practice by attorneys who recognized the current
law's many problems. Their experience showed that the law is badly
organized, uses antiquated terms,3 and
contains a "one legal standard fits all" regardless of whether
guardianship of the person or guardianship of the estate is
sought.4 The current law also lacks due
process protections and presumes that all rights are removed unless a
court specifically retains certain rights, does not give appropriate
deference to previously executed powers of attorney,5 does not specify in sufficient detail the duties
or responsibilities of guardians of the person or estate,6 and lacks procedures for removing a guardian,
reinstating rights, and other post-appointment matters.
The new law totally revises the guardianship statutes, Wis. Stat.
chapter 880, by repealing some parts, amending virtually every remaining
section, renumbering every surviving section, and creating many new
sections. The proposed changes were so significant that proponents
believed it prudent to replace chapter 880 entirely with a new chapter
54, which will contain all of the revised, recreated, and few surviving
provisions of chapter 880. There no longer will be a chapter 880.7 (Psychotropic medication sections move to Chapter
55.) Current chapter 880 subchapters II (Uniform Veterans Guardianship
Act), III (Uniform Transfer to Minors Act), IV (Securities Owned by
Minors, Incompetents and Spendthrifts), and V (Uniform Custodial Trust
Act) are combined into new chapter 54 as subchapter VII.
Betsy J. Abramson,
U.W. 1981, serves as a commissioner to the ABA's Commission on Law and
Aging. She has been involved in public interest law for the elderly for
more than 20 years, has served on three Legislative Council committees
involving elder issues, has represented the elderly on issues before the
Wisconsin Legislature, and is an advisor to the State Bar of Wisconsin
Elder Law Section, where she is active in publications and training.
Jane A. Raymond is the advocacy and
protection systems developer with the Wisconsin Department of Health and
Family Services. She has extensive experience in developing domestic
abuse, elder abuse, adult protective services, and aging network
responses to adults at risk. She has presented nationally on issues of
domestic violence in later life and has written extensively on that
topic. She earned an M.S. in Corrections from Xavier University,
Cincinnati, Ohio.
The authors thank attorney Ellen Henningsen of Coalition of Wisconsin
Aging Groups Elder Law Center for her assistance.
The new chapter 54 will be divided into seven subchapters: I -
Definitions; II - Appointment of a Guardian; III - Nomination of
Guardian, Powers and Duties, Limitations; IV - Procedures; V -
Post-Appointment Matters; VI - Conservatorships, and VII - Uniform
Guardianship Acts.
Subchapter I, "Definitions," contains many important changes. The new
law replaces "infirmities of aging" with a definition of "degenerative
brain disorder" and adds new definitions for "least restrictive,"
"serious and persistent mental illness," "spendthrift," and "interested
person."8 There are two different listings
for "interested person" - one for purposes of notice of the petition for
guardianship and the second for purposes of proceedings subsequent to an
order for guardianship.9 Significantly, the
law ceases referring to individuals as a noun - "an incompetent"10 - and instead more sensitively creates a
definition for an "individual found incompetent," as "an individual who
has been adjudicated by a court as meeting the requirements of sec.
54.10(3), Wis. Stats."11
Subchapter II, "Appointment of a Guardian,"12 contains all of the procedures, standards, and
required findings for appointing a guardian of an adult. It retains the
current law's requirement of clear and convincing evidence.13 Important to many parents of young adults with
developmental disabilities, subchapter II authorizes the appointment of
a guardian for an individual as early as age 17 years and 9 months,
thereby permitting parents to prepare for their child's transition into
adult legal status.14
The law greatly strengthens the due process protections for proposed
wards by requiring the court, before appointing either a guardian of the
person or guardian of the estate for an individual who is incompetent,
to find that there is no less restrictive means of meeting the need for
assistance. Specifically, the court must find that "the individual's
need for assistance in decision-making or communication is unable to be
met effectively and less restrictively through appropriate and
reasonably available training, education, support services, health care,
assistive devices, or other means that the individual will
accept."15
There are different reasons for appointing the two different types of
guardian (guardian of the person and guardian of the
estate). The new statute therefore creates different standards
for each type of guardian. Before appointing a guardian of the person
for an individual who is incompetent, the court must find that "because
of an impairment, the individual is unable effectively to receive and
evaluate information or to make or communicate decisions to such an
extent that the individual is unable to meet the essential requirements
for his or her physical health and safety."16 (Emphasis added.) Correspondingly, before
appointing a guardian of the estate for an individual who is
incompetent, the court must find that "because of an impairment, the
individual is unable effectively to receive and evaluate information or
to make or communicate decisions related to management of his or her
property or financial affairs" and that one of the
following applies: 1) the individual has property that will be
dissipated in whole or in part; 2) the individual is unable to provide
for his or her support; or 3) the individual is unable to prevent
financial exploitation.17 (Emphasis
added.)
The new chapter 54 also will improve selection of a guardian, by
listing new (additional) factors for a court to consider, including:
whether a proposed ward had done any advance planning to avoid the need
for a guardianship (for example, by establishing a power of attorney or
a trust); whether appointment of a guardian is the least restrictive
means of meeting the proposed ward's needs; the proposed ward's
preferences; the nature and extent of the proposed ward's care and
treatment needs and property and financial needs; whether the proposed
ward is at risk of abuse, exploitation, neglect, or violation of rights;
whether the proposed ward can adequately understand and appreciate the
consequences of any impairment; the proposed ward's management of daily
living activities; the proposed ward's understanding and appreciation of
the nature and consequences of any inability he or she may have
regarding personal needs or property management; any medication taken by
the ward and its effect on the proposed ward's behavior, cognition, and
judgment; and whether the disability is likely to be temporary or
permanent.18
Subchapter III, "Nomination of Guardian; Powers and Duties;
Limitations," includes new factors. It requires a court to appoint as
guardian of the estate or person the agent under a previously executed
durable power of attorney or power of attorney for health care unless
appointment of the agent would not be in the proposed ward's best
interests.19 Subchapter III also reverses
the current presumption that powers of attorney should be terminated,
and so a court now must identify specific reasons why a guardian should
be appointed despite the existence of a previously-executed power of
attorney.20 The statute permits the
appointment of a nonprofit corporate guardian or an unincorporated
association only if the court finds that there is no suitable individual
available to perform the duties. Finally, it requires a proposed
guardian to submit a sworn and notarized statement to the court
indicating whether he or she has ever been convicted of certain crimes,
filed for or received bankruptcy protection, or had certain professional
licenses or certificates suspended or revoked.21 The court then must determine the relevance of
the proposed guardian's history.
Consistent with trends in other states, the law emphasizes limited
guardianship and reverses presumptions of full guardianship by limiting
the guardian to powers that are authorized by statute or court order and
that are the least restrictive form of intervention; a ward retains all
rights not assigned to a guardian or otherwise limited by statute. The
new law provides a standard of duty for the guardian, separating the
guardian's relationship to the ward ("to exhibit the utmost
truthworthiness, loyalty and fidelity") and the guardian's standard when
acting on behalf of the ward ("... to exercise the degree of care,
diligence and good faith ... that an ordinarily prudent person exercises
in his or her own affairs") and provides immunity if the guardian
adheres to this standard. 22
The new law then clearly and distinctly separates the duties from the
powers and identifies which powers require court approval. The law
contains separate listings for guardians of the estate and guardians of
the person.
Guardians of the Estate - Duties; Powers
Under "duties," the law requires a guardian of the estate to "provide
the ward with the greatest amount of self-determination with respect to
property management in light of the ward's functional level,
understanding, and appreciation of his or her functional limitations and
the ward's personal wishes and preferences with regard to managing the
activities of daily living." It also requires the guardian to pay the
ward's debts and file with the register of deeds of any county in which
the ward possesses real property a sworn statement that describes the
property and lists the date the ward was found incompetent and the
guardian's contact information.23 The new
law directs the guardian to determine if the ward had executed a will,
and if so, the will's location and appropriate people to be notified of
the ward's death. Addressing a previously silent area of the law, the
new law requires the guardian to notify these people at the time of a
ward's death and to deliver the ward's assets to the entitled
people.24
Under "powers" the statute permits a guardian to engage in certain
activities only with court approval. These powers include establishing
special needs trusts permitted under federal Medicaid law, purchasing an
annuity or insurance contract and exercising ownership rights,
exercising rights under a retirement plan or account, exercising marital
property rights, supporting an individual whom the ward is not legally
obligated to support, continuing the ward's business, paying debts
incurred before guardianship or filing of lis pendens, and
exercising selective inheritance rights.25
Additionally, one very carefully crafted provision permits a guardian
or other "interested person," only after extensive notice, to file a
special petition seeking court approval to make gifts (that is, transfer
some) of the ward's property. The court must consider various factors:
the nature and extent of the ward's estate and current and future
obligations; the opinion of any guardian of the person; the nature of
the property to be transferred; the ward's wishes if ascertainable; the
ward's past practices; whether the ward had executed a will or similar
instrument; and the current or future effect on the ward's eligibility
for public assistance.26
Guardians of the Person - Duties; Powers
Wisconsin has never had any requirements for how often a guardian
must physically see (or visit) a ward. The new law now requires a
guardian of the person to engage in a "regular" inspection, in person,
of the ward's condition, surroundings, and treatment. The guardian must
examine health care and treatment records; attend staffings; inquire
into proposed treatment risks, benefits, and alternatives; and consult
with providers of health care and social services in making all
necessary treatment decisions.27
At stake in a guardianship of the person are essentially three sets
of rights:
1) Rights that a ward always retains (that is, rights that can never
be removed or lost), notwithstanding imposition of a guardianship. (For
example, private communication, retaining and meeting privately with a
lawyer, challenging guardianship and protective placement and services,
and exercising constitutional rights such as free speech and
religion.)28
2) Rights that may be removed by a court and transferred to a
guardian. (For example, the right to make medical, residential, and
financial decisions.)29
3) Rights that may be removed by a court's declaration of
incompetence but that are not transferable to a guardian. (For example,
the rights to consent to marriage, execute a will, serve on a jury, hold
certain operator's licenses, consent to sterilization, consent to organ,
tissue, or bone marrow donation, and vote.)30 Again, in a major change from current law, a
ward retains each of these rights unless a court specifically removes
them.31 The guardian may not exercise any
of these rights that are removed by the court; however, a court can
order that a ward has the right to exercise any of these rights with
approval of the guardian.32
In reversing a set of Attorney General Opinions,33 the law clarifies that the guardian may consent
to voluntary or involuntary medical examination and treatment of the
ward and to the ward's voluntary receipt of medication, including
psychotropic medications, unless the ward protests receipt of the
medication34 (see discussion below of
chapter 55 recodification for definition of "protests"). The new law
provides that a guardian may only consent to the involuntary
administration of psychotropic medications to the ward under a
protective services order under chapter 55.35
New provisions of the law permit a guardian to consent to a ward's
participation in research or experimental treatment under certain
conditions36 and require guardians to make
decisions based on considerations of the "least possible restriction" on
personal liberty and the exercise of constitutional and statutory
rights, honoring previously and currently stated preferences, and
whether the ward's estate is sufficient to pay for the needed
services.37
Another long-standing problem in guardianship practice has been the
lack of procedures for transferring an out-of-state ("foreign")
guardianship to Wisconsin. The lack of existing procedures led to the
Wisconsin Supreme Court's decision in Grant County Department of
Social Services v. Unified Board of Grant and Iowa Counties.38 The new statute tracks the procedure the court
outlined in this case but does not require the petitioner to first get
permission of the foreign court to transfer guardianship.39
An extremely confusing area of the law has been determining county
responsibility (that is, funding) for guardianship services. Current law
makes a distinction for determining if counties have responsibility to
fund based on the type of disability (developmental disabilities, mental
health, or "infirmities of aging") and the site or facility of services
(for example, nursing home, state facility, community-based residential
facility, client's home). The new law provides a consistent process and
standards for determining venue and county of responsibility, regardless
of disability or facility, that require consideration of four factors:
1) physical presence; 2) voluntariness (by an individual or as stated by
a guardian); 3) place of fixed habitation; and 4) intent to
remain.40
There are many new due process provisions. These include providing
the proposed ward with additional rights regarding the required physical
and psychological examination, with the right to remain silent during
the examination, and with the right to request an additional examination
and requiring a court order to force the (proposed) ward to submit to an
examination.41
Additional protections are provided by requiring appointment of a
guardian ad litem in more situations, for example, temporary
guardianships, any action to expand, review, or terminate a
guardianship, and review of a guardian's conduct.42 The new statute also lists the duties of a
guardian ad litem, including interviewing the proposed guardian and
standby guardian to determine their fitness to serve, reviewing any
existing powers of attorney, interviewing any previously appointed agent
to determine appropriateness of retaining the agent, reporting to the
court whether a previously executed power of attorney is adequate to
preclude the need for guardianship, and attending all court
hearings.43 The new law also codifies SCR
chapter 36, which mandates continuing legal education for guardians ad
litem on specific subjects.44
Guardianship hearings must be held within 90 days of filing of the
petition, and the proposed guardian must be present unless excused by
the court or good cause is shown to permit attendance by phone
instead.45
In a change from the current law, the new law makes it the
petitioner's responsibility to ensure that the proposed ward attends the
hearing unless the guardian ad litem, after a personal interview with
the individual, waives the individual's attendance and certifies in
writing to the court why the person is unable to attend. Waiving
attendance should not be done lightly. The guardian ad litem is required
to consider the individual's ability to understand and meaningfully
participate, the effect of attendance on the individual's physical or
psychological health, and the individual's wishes. If the individual is
unable to attend only because of residence in a facility, physical
inaccessibility, or lack of transportation, the hearing must be moved,
on request, to the place where the individual resides.46
As indicated, there are many changes related to a preexisting power
of attorney. First, the court is to dismiss a petition if the court
determines that a ward's advance planning makes guardianship
unnecessary. Second, powers of attorney are to remain in effect unless
there is good cause shown to revoke or limit them. Finally, a
preexisting power of attorney is not a total bar prohibiting payment of
the petitioner's attorney fees from an adjudicated ward's estate;
rather, the preexistence of a power of attorney will become one more
factor for the court to consider in determining if the ward's estate
should pay the petitioner's costs.47
The law also tightens provisions related to the imposition of
temporary guardianships. The new law specifies the process, requires the
appointment of a guardian ad litem in all cases, and requires a hearing,
which may be held no earlier than 48 hours after filing unless good
cause is shown. The court must specify the powers delegated to a
temporary guardian and that a temporary guardian may not sell real
estate or expend more than $2,000 belonging to (or on behalf of) the
individual unless the court approves and orders bond.48
Subchapter V addresses post-appointment matters. It requires a
guardian of the estate to file the estate's inventory within 60 days
after appointment (current law provides six months) and to include
marital property assets, regardless of how titled.49 It also provides that reviews and modifications
of guardianships may be requested by a ward age 18 or older, the
guardian, or anyone on the ward's behalf, if at least 180 days have
passed since the last request or if there are exigent circumstances. The
new law also requires the appointment of a guardian ad litem in these
post-appointment issues and makes available to the ward a hearing with
the ward present, right to counsel, and a jury trial.50
Recognizing the great extent of documented abuse of vulnerable
adults, including by their guardians, the new law lists in one place the
specific criteria for removal of a guardian, cause for court action
against a guardian, and remedies.51
While the new law requires annual financial accountings by guardians
of the estate, including by corporate guardians, it permits courts to
determine that an accounting is not needed for estates smaller than
$20,000 (currently $5,000).52 It also
requires court approval for either compensating or reimbursing a
guardian (current law only requires court approval for compensation) and
lists the criteria for a court determination to compensate a
guardian.53
Recodification of Chapter 55
In May 2002 the Wisconsin Legislature's Joint Legislative Council
established the Special Committee on Recodification of Chapter 55,
Placement and Services for Persons with Disabilities.54 The recodification committee reviewed court
decisions that interpreted various chapter provisions and case law that
found chapter provisions to be unconstitutional. The committee also
examined different interpretations of chapter 55 that have arisen over
time and determined which practices should be applied statewide. The new
law, the result of the special committee's work, primarily revises
chapter 55, which governs voluntary and involuntary protective services
and placement.
Chapter 55, first enacted in 1973, was greatly overdue for a
recodification. There have been numerous very significant cases
interpreting chapter 55, dating as far back as 1985 with the seminal
decision in Watts v. Combined Community
Services,55 which required an annual independent (guardian
ad litem-conducted) review of every protective placement. Since
Watts, there have been many additional relevant court cases,
identified ambiguities in the law, and areas that were simply not
addressed in chapter 55.
The law begins with new terms and definitions, for example, replacing
"infirmities of aging" with "degenerative brain disorder," and "chronic
mental illness" with "serious and persistent mental illness," identical
to the new chapter 54 (Guardianship.)56 In
procedural changes, the law requires that a subject individual be a
resident of Wisconsin or have filed a petition to transfer a foreign
(out-of-state) guardianship if the individual is not a state resident.
It also requires that protective placement and services petitions be
heard within 60 days of the petition's filing, unless a 45-day extension
is granted.57 (There is an exception for
involuntary psychotropic medication petitions, which must be heard
within 30 days.)58 It also gives to an
already adjudicated ward who later is the subject of a protective
placement petition the right to an independent evaluation, at county
expense if the ward is indigent.59
Chapter 55 has never had a procedure for establishing court-ordered
protective services, only for placements. This new law
therefore
creates a procedure for pursuing court-ordered protective services,
nearly identical to the protective placement procedure, with the same
due process rights as for protective placement.60
The law codifies requirements and procedures for the annual
"Watts reviews" (court-supervised annual reviews of protective
placements), states the criteria for the county department review and
report, and requires county adult protective service agencies to have
written policies about annual review procedures. To ensure that annual
reviews actually take place each year, chief judges must certify
annually that the reviews are complete or explain why they were not
done.61 The law also delineates the duties
of the guardian ad litem, currently codified in Wis. Stat. chapter 880
and as described in Watts.62 A new
duty, as in the new guardianship statute, is the obligation to determine
and make a recommendation as to the fitness of the proposed guardian and
to notify any nominated guardian of any scheduled court hearings and the
guardian's right to be present and to participate in hearings.
Chapter 55 has always been ambiguous about the authority of
guardians, placement facilities, counties, and the Wisconsin Department
of Health and Family Services (DHFS) to move protectively placed
individuals. This new law now clarifies which individual or entity can
make transfers, when transfers can be made, what kind of notice is
required, and when a hearing is required. It also requires guardian
consent to all transfers, clarifies what are transfers (as opposed to
modifications), and places all transfer-related provisions in the same
statute.63 Similarly, the law provides more
detailed procedures than does current law for modifying or terminating a
protective placement, including how often a hearing can be held, and
specifies petition, notice, and hearing requirements.64
The revisions to chapter 55 also mirror the guardianship statutes in
areas including the petitioner's responsibility to ensure the proposed
ward's presence at the hearing,65
permitting a health care agent to be an "interested person,"66 and changing the existence of a previously
executed power of attorney to be just one more factor, rather than a
trump card, in determining whether the proposed ward's estate should be
responsible for the petitioner's attorney fees.67
Turning to admissions to facilities, the revised chapter 55 permits a
guardian of a ward who has been found incompetent in another state but
who is a resident of Wisconsin to admit the ward to a small facility
(defined as one with fewer than 16 beds); however, a petition to
transfer the foreign (out-of-state) guardianship must be filed within 60
days after admission.68
Similarly, revised chapter 55 permits a Wisconsin resident who is the
guardian of a ward found incompetent in another state and who resides in
the other state, to admit the ward to a Wisconsin small facility if the
guardian intends to move the ward to Wisconsin within 30 days of
admission; again, a petition to transfer a foreign guardianship must be
filed within 60 days of admission.69
As to larger facilities, the new law permits a guardian of a ward
found incompetent in another state to admit the ward to a Wisconsin
facility for recuperative and other care if the ward is a resident of
Wisconsin and if the petition to transfer the foreign guardianship and
the petition for protective placement are filed within 60 days after
admission. Similarly, the law permits a Wisconsin resident who is a
guardian of a ward found incompetent in another state and who resides in
another state, to admit the ward to a Wisconsin facility for
recuperative and other care if the guardian intends to move the ward to
Wisconsin within 30 days of admission. Again, the guardian must file a
petition to transfer the guardianship and a petition for protective
placement in Wisconsin within 60 days of the ward's admission.70
Revised chapter 55 expands a guardian's authority to admit the ward
to a nursing home and other facilities. It deletes the current
requirement that the ward be transferring from a hospital and expands
the authority to include any facility for which protective placement is
otherwise required. The ward must be in need of recuperative care or be
unable to provide for his or her own care or safety so as to create a
serious risk of substantial harm to himself or herself or others. The
guardian will have authority for 60 days (currently three months),
followed either by an additional 60-day period if a petition for
protective placement is brought, or by an additional 30 days for
discharge planning if no protective placement petition is
brought.71
For wards with a dual diagnosis (for example, a degenerative brain
disorder and a mental illness such as severe depression, anxiety, or
schizophrenia), admission to facilities will be permitted even if the
ward has a primary diagnosis of mental illness or developmental
disability unless the primary purpose of the admission is for
treatment or services related to the individual's mental illness or
developmental disability.72
The new law makes three important changes related to emergency
protective placements. First, it permits law enforcement personnel, a
guardian, or a county adult protective services agency representative to
make an emergency protective placement based on a reliable report made
to them (as in chapter 51 mental commitments) instead of the current
standard requiring personal observation. Second, it also modifies the
standard from that the individual "will suffer irreparable injury or
death" to permitting placement if it is probable that the individual "is
so totally incapable of providing for own care or custody as to create a
substantial risk of serious harm to self or others."73 Finally, the new law requires each county
protective services unit to designate at least one medical facility or
protective placement facility as the intake facility for the purpose of
emergency protective placements.74
A major change in this new law governs mental health treatment -
voluntary admissions as an in-patient, guardian-authorized admissions,
and psychotropic medications. Regarding voluntary admissions to an
inpatient treatment facility, the new law retains current law that
permits a guardian to consent to the voluntary admission of the ward to
an inpatient treatment facility if the ward also consents. It
also provides that a guardian may consent to the voluntary admission of
a ward to an inpatient treatment facility (all inpatient treatment
facilities, not only county-funded or -operated facilities) if the ward
does not indicate a desire to leave the facility and if the chapter 51
procedures for voluntary admission are followed.75
Involuntary admissions to inpatient treatment facilities may only be
accomplished pursuant to Wis. Stat. sections 51.15 or 51.20.76 Therefore, the new statute finally repeals the
admission portions of section 55.06(9)(d) and (e) that were found
unconstitutional by Watts.77
Finally, the new law addresses the guardian's authority involving the
involuntary administration of medication and separates out the
authority, standards, and procedures for psychotropic medications from
those applicable to other medications. Unless a court limits the powers,
a guardian may consent to involuntary administration of medication,
other than psychotropic medication, and to involuntary medical treatment
that is in the ward's best interests.78
As to psychotropic medications, the new laws clearly will permit a
guardian to consent to psychotropic medications for a nonprotesting ward
if the guardian has made a good faith attempt to discuss with the ward
receipt of the medication and if the ward does not protest receipt of
the medication itself (in contrast to opposing how the medication is
delivered, for example, in pill form, liquid form, or mixed with
food).79
For protesting wards, the new statute moves and revises the current
chapter 880 provisions relating to psychotropic medications. The new
statute provides a nonchapter 51-related process and standard for
involuntary administration of psychotropic medication; an order for
involuntary administration of psychotropic medication now will be a
chapter 55 protective service. In addition to fulfilling the
requirements for a protective services petition, the petition for
involuntary administration of psychotropic medication must allege that:
1) a physician has prescribed psychotropic medication; 2) the individual
is not competent to refuse psychotropic medication; 3) the individual
has refused to take the psychotropic medication voluntarily, or
attempting to administer psychotropic medication voluntarily is not
feasible or is not in the individual's best interests (the reasons for
refusal, lack of feasibility, or not in best interests, and evidence of
a reasonable number of documented attempts to convince the individual to
take the medication voluntarily must be included); 4) the individual's
condition is likely to improve; and 5) the individual will present a
substantial probability of physical harm to others or the individual
will incur an immediate or imminent substantial probability of physical
harm, impairment, injury, or debilitation (immediate or imminent
substantial probability of harm, and so on, as shown by the current
chapter 880 standard or current chapter 51 dangerousness
standards).80 The new statute then adopts
current chapter 880 provisions regarding post-order requirements
(development of a treatment plan, and so on).81 Finally, the new statute requires the DHFS to
promulgate rules that require nursing homes, community-based residential
facilities, adult family homes, and residential care retirement
communities to provide information to the DHFS on compliance with
provisions relating to involuntary administration of psychotropic
medications.82
Adult Protective Services
Modernization
The new Adult Protective Services Modernization law is in response to
a recognized need to articulate a system that defines at-risk
populations, the county agency role in response to allegations, how
services are to be provided, and how information may be shared. It
recognizes that while Wisconsin already had a system to protect
children83 and an elder abuse reporting
system for people age 60 and older,84 there
was no reporting system for vulnerable adults age 18 to 59. It also
recognizes the need to update the definitions of "abuse" to include
financial exploitation and sexual, emotional, and other types of
abuse.
When most states' laws on adult protective services were written in
the 1970s, the laws were crafted in response to assumptions that loving
individuals caused harm to others as a result of "caregiver stress" or
lack of consumer knowledge. Wisconsin's Adult Protective Services Law
was enacted in 1973, prior to a full understanding of domestic violence,
and it predates the elder abuse reporting law passed in 1985. The elder
abuse law was based on a child abuse model rather than on a model that
incorporated the need to more fully engage the criminal justice system
as a method to address victim safety and to hold abusers
accountable.
Subsequent research concluded that a significant percentage of cases
of abuse and neglect of elders and vulnerable adults arise not from
"caregiver stress" but rather from the same types of family violence and
power and control dynamics as exist in domestic violence situations,
factors that traditionally were thought applicable only to situations
involving younger nondisabled populations.85 As a result of this newer research, Wisconsin
law now reflects not only a traditional social services model but also
establishes a criminal justice system response to better identify and
protect adults at risk. It does so by crafting a collaborative approach
between county social services, law enforcement, and state regulatory
systems. Essentially, the new law updates and modernizes Wisconsin's
elder abuse reporting law, found in Wis. Stat. section 46.90, and then
creates a parallel system of reporting and response for younger adults
at risk (that is, people age 18-59) in chapter 55. Counties will be
required to designate their lead "elder adult-at-risk" and
"adult-at-risk" agency(ies).86 The bill
identifies the categories of individuals who may be a subject of a
report: "elder adults at risk" and "adults at risk." The definitions
follow. An "elder adult at risk" is "a person age 60 or older who has
experienced, is currently experiencing, or is at risk of experiencing
abuse, neglect, self-neglect, or financial exploitation."87 An "adult at risk" is "any adult who has a
physical or mental condition that substantially impairs his or her
ability to care for his or her needs who has experienced, is currently
experiencing, or is at risk of experiencing abuse, neglect, or financial
exploitation."88 It is important to
recognize that who can be reported is only the first of many important
considerations. What actually happens to or for that individual depends
on other factors such as the individual's competence, present risk,
available supports, and funding.
The law also expands what is reportable. It includes within the
definition of abuse,89 and separately
defines, emotional and sexual abuse.90 It
also includes as forms of abuse "treatment without consent" and
"unreasonable confinement or restraint."91
The less descriptive term "material abuse" is changed to the term
"financial exploitation," and wherever appropriate, the statutes use the
same definitions as in criminal statutes (for example, "sexual abuse" is
defined according to Wis. Stat. section 940.225, and "theft" under
financial exploitation is based on theft under criminal law).92
Changes to voluntary reporting system. The law also
makes some
changes to Wisconsin's traditional voluntary reporting system. In
contrast to its mandatory reporting system for child abuse, Wisconsin,
unlike the great majority of states, has always had a voluntary
reporting system for elder abuse, based on the concept of an adult's
right to self-determination. For the most part, the new law continues
the voluntary system. It does, however, create exceptions to the current
law's exclusively voluntary reporting system, recognizing that current
law misses egregious situations in which adults at risk are not capable
of self-reporting and other adults at risk may be in vulnerable
positions. Exactly as with the child abuse laws, attorneys and people
working under their supervision are specifically listed as permissive,
not required, reporters.93 The following
professionals are subject to the limited required reporting: employees
of any entity licensed, certified, approved by, or registered with the
DHFS; a health care provider as defined in Wis. Stat. section 155.01(7);
and social workers, professional counselors, and marriage and family
therapists certified under chapter 457.94
These professionals must make a report to the county's lead
adult-at-risk or elder-adult-at-risk agency only if the adult at risk or
elder adult at risk is seen in the course of the person's professional
duties and one of the following is true:
1) the elder adult at risk or the adult at risk has requested the
person to make the report; or
2) there is reasonable cause to believe that the elder adult at risk
or adult at risk is at imminent risk of serious bodily harm, death,
sexual assault, or significant property loss and is unable to
make an informed judgment about whether to report the risk;
or
3) other adults at risk are at risk of serious bodily harm, death,
sexual assault, or significant property loss inflicted by the suspected
perpetrator. 95
The second category requires a concern about future, serious risk; it
is not applicable to situations that involve past incidents only. The
third category, however, applies to reporting past abuse perpetrated on
an (elder) adult at risk only if there is a possibility of harm to
others. (For example, any of the listed professionals would be required
to report if he or she were made aware of a situation involving a
specialized transportation van driver who had allegedly sexually
assaulted a client. This is because even if the client no longer used
the transportation service, other adults at risk likely would be riding
with that van driver in the future.) Nevertheless, even if the case
falls into one of the above categories, no reporting is required if the
professional believes that filing the report would not be in the best
interest of the (elder) adult at risk and the professional documents the
reasons for this belief in the suspected victim's case file.96
Due to the increased reporting provisions, the law also enhances
protections for good faith reporters. Immunity provisions apply to all
reporters, including for situations when a report is filed with an
incorrect agency if the reporter had a good faith belief that the
initial report was filed appropriately.97
The penalty for retaliating against a reporter is increased to
$10,000.98 Plus, the new law creates a
rebuttable presumption that any discharge or act of retaliation or
discrimination taken against a reporter within 120 days of making the
report is retaliatory.99
Attorneys should note that the Wisconsin Supreme Court Ethics 2000
Committee's proposed new ethics rule SCR 20:1.14 specifically permits
attorneys to take protective action for a client who has diminished
capacity (for example, reporting concerns of abuse, neglect, and
self-neglect) and states that taking protective action is implicit
authorization under the otherwise strict rule of attorney-client
confidentiality found in SCR 20:1.6.100
Investigating abuse. The new law treats
investigations of
financial exploitation the same as investigations of other types of
abuse, requiring counties to begin their investigation within 24 hours
of receiving a report of abuse, not counting weekends and legal
holidays. Current law permits investigations of financial exploitation
to begin within five days, not counting weekends and holidays. It also
requires that reports regarding clients of DHFS-regulated entities be
referred to the DHFS for investigation if the suspected abuser is a
caregiver or nonclient resident of the entity.101 Further, the new law authorizes multi-agency
responses, including strengthening law enforcement involvement, and
authorizes exchanging investigative information and reports with
appropriate agencies.102 The law
authorizes additional investigative tools, such as the ability to:
interview adults at risk with or without the consent of any
court-appointed guardian or any agent under an activated power of
attorney; interview the guardian or agent; transport the adult at risk
for medical examination; and review financial records without
consent.103
Agency response to substantiated complaints. The law
provides
additional specificity about the types of services and responses that an
agency may make if a complaint is substantiated, including seeking a
revised vulnerable adult restraining order. County adults-at-risk
workers may request immediate assistance in initiating a protective
services action or contacting a law enforcement or other public agency,
as appropriate. Specifically, the county adults-at-risk agency may bring
or refer a case for a petition for guardianship and protective services
or placement, including emergency protective placement. County
adults-at-risk agencies also may refer cases to: local law enforcement
for further investigation; the district attorney if the agency believes
a crime has been committed; licensing or certification authorities
within the DHFS or other regulatory bodies if the residence, facility,
or program is or should be regulated; or the Department of Regulation
and Licensing if the case involves an individual required to hold a
credential under Wis. Stat. chapters 440 to 460.104
Wisconsin's current vulnerable adult restraining order statute, Wis.
Stat. section 813.123, is technically more of a "non-interference with
investigation and service provision" statute. Accordingly, the new law
provides directly in the appropriate adult-at-risk chapters governing
investigations and services the authorization for county workers to
pursue a new "Restraining order and injunction for adults at
risk".105 In addition, the new law creates
a true restraining order for adults at risk, expanding who may request
it and what behavior may be restrained. The revised adult-at-risk
restraining order may be petitioned for by an (elder) individual at
risk, his or her guardian, an interested person acting on behalf of an
individual at risk, or an (elder) adult-at-risk agency. If, however,
someone other than the (elder) adult at risk petitions for a restraining
order, the person must notify the individual at risk and the court must
then appoint a guardian ad litem. Actions that may be enjoined include:
interfering with the investigation or provision of services, actions or
threats to engage in abuse, financial exploitation, neglect, harassment,
stalking of an individual at risk, and mistreating the animal of an
(elder) adult at risk.106
Confidentiality requirements. The law clarifies
confidentiality requirements and differentiates between "reports" and
"records," specifying to which individuals and entities reports and
records can be released. In brief, "records" involve the entire case
file while "reports" are documentation of an agency's response to a
report, including a summary of the case. Reports will be releasable to
various government agencies that need the reports to carry out
responsibilities of protecting adults at risk and to reporters of abuse
who made the report in a professional capacity, regarding the actions
taken to protect or provide services. A holder of the report may not
release it, however, if to do so might cause harm to the subject
individual or jeopardize an on-going civil or criminal investigation.
107
Records may be released only to: an (elder) adult at risk who is the
named victim; the victim's legal guardian, conservator, or other legal
representative (unless that person is the alleged abuser); law
enforcement officials and district attorneys for their purposes; the
DHFS and law enforcement for death investigations required under law;
the county department providing services to determine if the victim
should be transferred to a less restrictive or more appropriate
treatment modality; the victim's attorney or guardian ad litem to
prepare for certain court hearings; the DHFS for management, audit, and
monitoring purposes; the state's protection and advocacy agency staff; a
coroner, pathologist, or other professional investigating deaths in
unexplained or suspicious circumstances; the probation or parole agency
that is supervising an alleged perpetrator in certain circumstances; and
grand juries, courts, and administrative agencies under Wis. Stat.
section 968.26.108
Conclusion
These new laws, all of which will become effective by the end of
2006, represent the most sweeping set of changes to laws affecting
adults at risk in Wisconsin's history. Attorneys and advocates for
Wisconsin's vulnerable elders and other adults can take great pride in
the progress Wisconsin has made in creating a coordinated,
collaborative, and modernized system, but they must carefully learn the
law to best be prepared to help these vulnerable populations.
Endnotes
Wisconsin Lawyer
