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    Landmark Guardianship and Adult Protective Services Reforms Signed into Law

    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.

    Jane A. Raymond

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    Wisconsin LawyerWisconsin 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

    Aelderly manttorneys 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. AbramsonBetsy 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 RaymondJane 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

    1A"reconciliation bill," 2005 S.B. 731, was drafted to resolve a few technical conflicts that exist among the bills. The main bills passed the Legislature late in the 2005-2006 session, providing inadequate time for consideration of the reconciliation bill. There also was insufficient time for consideration in the very limited July 2006 session. Accordingly, the Legislature will have to consider a new version of the reconciliation bill in the next floor period, beginning January 2007.

    2A multitude of attorneys was extensively involved in creating the drafts. Members of the Elder Law Section subcommittee that did the lion's share were attorneys Barbara Hughes, James Jaeger, Barbara Becker, Bruce Tammi, and Betsy Abramson.

    3See, e.g., Wis. Stat. § 880.01(5) ("infirmities of aging").

    4See Wis. Stat. § 880.01(4) ("incompetence").

    5See Wis. Stat. section 880.33(5) and (8), addressing health care powers of attorney. There is no provision in the guardianship statute addressing financial powers of attorney. Wis. Stat. section 243.07(3), however, permits a guardian to revoke a durable power of attorney.

    6See, e.g., Wis. Stat. §§ 880.19, .21, .38.

    7All subsequent references to Wis. Stat. chapter 54 are to the chapter as created by 2005 Wis. Act 387, which becomes effective on Dec. 1, 2006.

    8Wis. Stat. § 54.01(6), (18), (30), (31), (17).

    9Wis. Stat. § 54.01(17)(a), (b).

    10Wis. Stat. § 880.01(4).

    11Wis. Stat. § 54.01(16).

    12Wis. Stat. §§ 54.10, .12.

    13Wis. Stat. §§ 54.10(2)(a), .44(2).

    14Wis. Stat. § 54.10(3)(a).

    15Wis. Stat. § 54.10(3)(e), (3)(a)4.

    16Wis. Stat. § 54.10(3)(a)2.

    17Wis. Stat. § 54.10(3)(a)3.

    18Wis. Stat. § 54.10(2)(b), (c).

    19Wis. Stat. § 54.15.

    20See Wis. Stat. § 880.33(5), (8)(b) (2003-04).

    21Wis. Stat. § 54.15.

    22Wis. Stat. § 54.18(1), (2), (2)(c).

    23Wis. Stat. § 54.19, (8).

    24Wis. Stat. § 54.19(3), (6).

    25Wis. Stat. § 54.20(2).

    26Wis. Stat. § 54.21. Impending changes to Wisconsin's Medicaid law will require attorneys and courts to be extremely careful in approving any transfer of the ward's assets to not unintentionally jeopardize future eligibility. See James B. Noble & James A. Jaeger, A New World for Medical Assistance Planning, 79 Wis. Law. 8 (May 2005).

    27Wis. Stat. § 54.25(1), (1)(b). There is no definition of "regular" and clearly this will differ depending on the ward. For example, a ward receiving active treatment in an acute care setting may need significantly more visits than a ward in a more stable situation.

    28Wis. Stat. § 54.25(2)(b)2.

    29Wis. Stat. § 54.25(2), (3).

    30Wis. Stat. § 54.25(2)(c).

    31Wis. Stat. § 54.25(2)(a).

    32Wis. Stat. § 54.25(2)(b)3.

    33Revised OAG 5-99, Dec. 18, 2000.

    34Wis. Stat. § 54.25(2)(d)2.

    35Wis. Stat. § 55.14 as created in 2005 Wis. Act 264. All references to chapter 55 in this article are to the chapter as affected by 2005 Wis. Act 264.

    36Wis. Stat. § 54.25(2)(d)2.c, 2.d.

    37Wis. Stat. § 54.25(2)(d)3.a, 3.c.

    38Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant & Iowa Counties, 2005 WI 106.

    39Wis. Stat. § 54.34.

    40Wis. Stat. § 51.40(2)(f).

    41Wis. Stat. § 54.36.

    42Wis. Stat. § 54.40.

    43Wis. Stat. § 54.40(4)(c), (d).

    44Wis. Stat. § 757.48(1)(a).

    45Wis. Stat. § 54.44(1), (3).

    46Wis. Stat. § 54.44(4).

    47Wis. Stat. § 54.46(1)(a)2, (2)(b)-(c), (3)(a)4.

    48Wis. Stat. § 54.50.

    49Wis. Stat. § 54.60(3). The court may extend or reduce the time period to file the estate inventory.

    50Wis. Stat. § 54.64, .64(2).

    51Wis. Stat. § 54.68. Unfortunately, guardians do not always make decisions in a ward's best interests and courts therefore must be prepared to intervene and remove them. See, e.g., Linda L. v. Collis, 2006 WI App 105, __ Wis. 2d __, __ N.W.2d __; Guerrero v. Cavey, 2000 WI App 203.

    52Wis. Stat. § 54.62.

    53Wis. Stat. § 54.72.

    54"Recodification" of a body of a law usually includes: 1) reorganizing statutes in a manner that is logical and makes them as easy to use as possible; 2) modernizing statutory language to reflect current drafting style and word usage; 3) resolving ambiguities in the language of current law; 4) reconciling conflicts in the current law; 5) filling gaps in specific substantive areas where the law is silent; 6) codifying relevant supreme court and court of appeals decisions and past attorney general opinions interpreting the laws in question; and 7) making substantive changes deemed necessary or desirable.

    55Watts v. Combined Community Servs., 122 Wis. 2d 54, 362 N.W.2d 104 (1985).

    56Wis. Stat. §§ 55.01(2v) and 51.01(4t), respectively.

    57Wis. Stat. §§ 55.06, .10(1).

    58Wis. Stat. § 55.14(7).

    59Wis. Stat. § 55.11.

    60Wis. Stat. §§ 55.075, .08, .09, .10.

    61Wis. Stat. § 55.18(1), (4), (5).

    62Wis. Stat. §§ 55.10(4)(b), .18(2).

    63Wis. Stat. § 55.15.

    64Wis. Stat. §§ 55.16 (modification), .17 (termination).

    65Wis. Stat. § 55.10(2).

    66Wis. Stat. §§ 55.05(2)(b), .09, .11, .18.

    67Wis. Stat. § 55.075(4)(a).

    68Wis. Stat. § 55.055(1)(c).

    69Wis. Stat. § 55.055(1)(d).

    70Wis. Stat. § 55.055(1)(c), (d).

    71Wis. Stat. § 55.055(1)(b).

    72Id.

    73See new Wis. Stat. § 55.135(1).

    74Wis. Stat. § 55.02(2)(b).

    75Wis. Stat. § 51.10(8).

    76Wis. Stat. § 55.12(2).

    77Watts, 122 Wis. 2d 54, 362 N.W.2d 104 (1985).

    78Wis. Stat. § 55.14.

    79See Wis. Stat. § 54.25(2)(d)2.a. A "psychotropic medication" is "a prescription drug, as defined in s. 450.01 (2), that is used to treat or manage a psychiatric symptom or challenging behavior." Wis. Stat. § 55.15(1)(d). "Involuntary administration of psychotropic medication" includes hiding medications in food or drink with knowledge of the ward's protest, forcible restraint to administer, and requiring administration as a condition to receive privileges or benefits. Wis. Stat. § 55.14(1)(a). "Protest" means more than one discernible negative response and more than silence. Wis. Stat. § 55.14(1)(c).

    80Wis. Stat. § 55.14, .14(3).

    81See Wis. Stat. § 880.44(4m), (4r) (2003-04) and new Wis. Stat. § 55.14(8), (9).

    82Wis. Stat. § 50.02(2)(ad).

    83Wis. Stat. § 48.981.

    84Wis. Stat. § 46.90.

    85K. Pillemer K. & D. Finkelhor, Causes of Elder Abuse: Caregiver Stress versus Problem Relatives, 59 Am. J. Orthopsychiatry 179-87 (1989); E. Podineks, National Survey on Abuse of the Elderly in Canada, 4 J. Elder Abuse & Neglect 5-57 (1992).

    86Wis. Stat. §§ 46.90(2) and 55.043(1d), respectively.

    87Wis. Stat. § 46.90(1)(br).

    88Wis. Stat. § 55.01(1e).

    89Wis. Stat. §§ 46.90(1)(a), 55.01(1).

    90Wis. Stat. § 46.90(1)(cm), (1)(gd), respectively; Wis. Stat. § 55.01(1).

    91Wis. Stat. § 46.90(1)(a)4., (1)(a)5., with specific definitions in (1)(h) and (1)(i), respectively; Wis. Stat. § 55.01(1).

    92Wis. Stat. §§ 46.90(1)(ed); 55.01(2s).

    93Wis. Stat. §§ 48.981(2)(c) (child abuse); 46.90(4)(ar); 55.043(1m)(br).

    94Wis. Stat. §§ 46.90(4)(ar); 55.043(1m). Employees of financial institutions were originally included in A.B. 539, but were removed by Assembly Amendment 6. These professionals remain voluntary reporters and are permitted by federal law to report suspected financial exploitation (or other abuse). Federal law provides a "safe harbor" ("Any financial institution that makes a disclosure of any possible violation of law or regulation or a disclosure pursuant to this subsection or any other authority, and any director, officer, employee, or agent of such institution, shall not be liable to any person under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the person involved in the transaction or any other person of such disclosure."). 31 U.S.C. § 5318(g)(3).

    95Wis. Stat. §§ 46.90(4)(ad); 55.043(1m)(b).

    96Wis. Stat. §§ 46.90(4)(ae); 55.043(1m)(be).

    97Wis. Stat. §§ 46.90(4)(ar), (c); 55.043(1m)(d).

    98Wis. Stat. §§ 46.90(9)(d); 55.043(1m), (9m).

    99Wis. Stat. §§ 46.90(4)(b)1cm; 55.043(1m)(c).

    100The Wisconsin Supreme Court's draft revision to SCR 20, issued March 15, 2006, is online at www.wisbar.org/ethics2000.

    101Wis. Stat. §§ 46.90(5)(a)1; 55.043(1r)(a)1g.

    102Wis. Stat. §§ 46.90(5)(a)2., (b);

    55.043(4)(b)3., 5.

    103Wis. Stat. §§ 46.90(5)(b); 55.043(1r)(b).

    104Wis. Stat. §§ 46.90(5m)(br)2., 3., 4., 5.; 55.043(4)(b)2., 3., 4., 5.

    105Wis. Stat. §§ 46.90(5)(d); 55.043(3).

    106Wis. Stat. § 813.123.

    107Wis. Stat. §§ 46.90(6)(ac), (b), (br); 55.043(6)(a), (b), (br).

    108Wis. Stat. §§ 46.90(6)(bt); 55.043(6)(bt). Wisconsin's protection and advocacy agency is Disability Rights Wisconsin (formerly the Wisconsin Coalition for Advocacy), 16 N. Carroll St., Suite 400, Madison, WI 53703; (608) 267-0214; www.disabilityrightswi.org.




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