April 5, 2017 – Life expectancies in the United States are close to the highest they’ve ever been. Rates of dementia disorders and mental illnesses are rising. As a result, chances are you have a relative, friend, or business associate who is struggling with living independently or with caring for an individual with a disability, as in the scenario below.
Imagine this Situation
George, a family friend, whose estate planning documents you prepared several years ago, arrives in your office for an appointment. George explains that Dolores, his wife of many years, has Alzheimer’s disease, and George feels he can no longer care for her at home. He’d like to move her to a nursing home, even though Dolores doesn’t even want to leave the house and gets agitated when she is in other settings.
George says that he’d like you to look over some of the couple’s financial documents because he has concerns about how to pay for the nursing home.
You offer sympathy to George about the burden he and his family have endured and then move on to the matter at hand: what can be done to help George and Dolores during this life transition.
Moving Incompetent Individuals to Nursing Homes Requires a Special Procedure
As explained by authors Maren Beermann and Gretchen Viney in Guardianship and Protective Placement, published by State Bar of Wisconsin PINNACLE®, a competent individual has the right to admit himself or herself to whatever type of facility he or she desires and, conversely, to refuse admission. Protective services, such as residence in a nursing home, may be received voluntarily by an individual without a court order.
If an individual is not voluntarily willing to move to a particular placement, and such a move becomes necessary, a protective placement order is required and a petition for guardianship of the person must accompany it if not already in place.
It seems unlikely that Dolores will voluntarily consent to the move to the nursing home. So if George wants to proceed with the move, he must seek a determination that Dolores is incompetent and appointment of a guardian. For purposes of appointment of a guardian of the person, incompetency means “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.” Wis. Stat. § 54.10.
You tell George that, based on his description of Dolores’s behavior, a court probably would find her incompetent and, thus, in need of a guardianship of the person.
The Quickest Process is Not Necessarily the Best
George frowns when you explain that admitting Dolores to a nursing home will require appointment of a guardian. He says that he’s at the end of his rope, and now that he’s made the decision, he wants to move Dolores as quickly as possible. He has already spoken with staff members at a particular facility, and they said they have a room available. George asks if he can get the guardianship today. The short answer is, “no.”
You summarize to George the typical guardianship procedure, which Guardianship and Protective Placement lays out, including the documents that must be filed and the orders that must be obtained. You emphasize to George the importance of the petition being complete and accurate and the likelihood that it will take several days or weeks to carry out the orders (for appointment of a guardian ad litem, for a hearing, and for an evaluation of Dolores). George says, “Can’t we do this right now? It’s an emergency!”
As authors Beermann and Viney explain in Chapter 9 of Guardianship and Protective Placement, the Wisconsin Statutes do permit emergency placements, but it is unlikely that this situation with Dolores qualifies. The standard for the taking of a person into emergency custody and transporting them to an appropriate facility is that a designated official conclude, “based on personal observation (or a reliable report made by a person who identifies himself or herself), that it appears probable that an individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others as a result of … a degenerative brain disorder … or other like incapacities if not immediately placed.” Although you empathize with George’s frustration, it does not appear that Dolores is at risk of harming herself if not immediately taken to the nursing home, so the emergency procedures cannot be used.
Avoiding Conflicts of Interest Protects All Parties’ Interests
George sighs. “OK, let’s get started with a regular guardianship. What do we do first?” You respond, “First, I have to figure out if I can be your lawyer in this matter, George.” According to Guardianship and Protective Placement, “[r]ecognizing that the attorney represents the petitioner, the rules of professional conduct may disqualify the attorney from that representation if the attorney has represented the proposed ward in the past. … In general, if the attorney has represented the proposed ward in the past in estate planning matters, the attorney most likely will not be able to later represent a petitioner seeking to impose guardianship and protective placement.”
You gently tell George that because you prepared estate planning documents for him and Dolores, you probably are barred from representing him in this matter because you must avoid a conflict of interest with your former client, Dolores. But you immediately offer him a list of other lawyers whose services you can recommend.
The How-to Guide No Matter Who You Represent
The revised fourth edition of Guardianship and Protective Placement of the Elderly in Wisconsin is an essential resource for Wisconsin lawyers, whether representing petitioners or potential wards or serving as guardians ad litem. The book takes the reader through the guardianship and protective placement procedures, focusing on striking the balance between ensuring vulnerable individuals’ health and safety and preserving their autonomy.
The book’s many checklists help attorneys ensure that they comply with all requirements of the often dense Wisconsin laws (contained in Wis. Stat. chapters 54 and 55). The authors’ practice tips highlight unresolved issues and provide suggestions for avoiding and resolving problems that may arise during guardianship and protective placement proceedings. The authors also have included sample forms to help attorneys with procedural steps not covered by the mandatory court forms, which are cross-referenced when relevant.
How to Order
Guardianship and Protective Placement for the Elderly in Wisconsin is available in both print and online via Books UnBound®, the State Bar’s interactive online library. The print book costs $89 for members and $109 for nonmembers. Electronic forms from the book are available online to print book owners and to Books UnBound subscribers.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing).
For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.