LRB-0027/1
DAK:kjf:jf
2005 - 2006 LEGISLATURE
October 17, 2005 - Introduced by Senators Olsen, Miller, Roessler, Darling,
Erpenbach, Risser, Harsdorf, Plale and Wirch, cosponsored by
Representatives Townsend, Krusick, Kestell, Krawczyk, Hines, Gielow,
Musser, Hahn, Ott, Berceau, Sherman, Seidel, Sheridan and Lehman.
Referred to Committee on Health, Children, Families, Aging and Long Term
Care.
SB391,5,18
1An Act to repeal 32.64, 51.20 (7) (d) 1. a., 51.20 (7) (d) 1. b., 51.40 (1) (h), chapter
2880 (title), subchapter I (title) of chapter 880 [precedes 880.01], 880.01 (intro.),
3880.01 (4), 880.01 (5), 880.01 (6), 880.03, 880.07 (1m), 880.07 (3), 880.07 (4),
4880.075 (title), 880.08 (1) (title), 880.08 (2), 880.08 (3) (title), 880.08 (3) (e),
5880.09 (1) (title), 880.09 (3) (title), 880.09 (4), 880.09 (5), 880.09 (7) (title),
6880.12, 880.125, 880.13 (3), 880.15 (title), 880.15 (1m), 880.15 (2), 880.16,
7880.173 (title), 880.173 (2), 880.175 (title), 880.19 (title), 880.19 (1) (title),
8880.19 (2) (title), 880.19 (3) (title), 880.19 (4) (title), 880.19 (5) (title), 880.19 (5)
9(d), 880.19 (6), 880.191 (title), 880.192, 880.21, 880.22 (title), 880.22 (1) (title),
10880.22 (2) (title), 880.23 (title), 880.24 (title), 880.24 (1), 880.25 (title), 880.251,
11880.26 (title), 880.295, 880.31 (title), 880.33 (title), 880.33 (2) (d), 880.33 (3),
12880.33 (4), 880.33 (4m) and (4r), 880.33 (8) (intro.), 880.33 (8) (a), 880.34 (3),
13880.34 (6), 880.37, 880.38 (1), 880.39 (title), subchapter II (title) of chapter 880
14[precedes 880.60], subchapter III (title) of chapter 880 [precedes 880.61],
1subchapter IV (title) of chapter 880 [precedes 880.75] and subchapter V (title)
2of chapter 880 [precedes 880.81];
to renumber 880.06 (title), 880.07 (1) (a),
3880.07 (1) (c), 880.07 (1) (e), 880.07 (1) (f), 880.07 (1) (g), 880.13 (title), 880.13
4(2) (title), 880.157 (title), 880.18 (title), 880.24 (3) (a) 1. to 3., 880.24 (3) (a) 4.,
5880.331 (4) (intro.), 880.331 (5) (d), 880.331 (5) (g), 880.36 (title), 880.65,
6880.665, 880.675, 880.69, 880.75, 880.82, 880.825, 880.84, 880.85, 880.86,
7880.865, 880.875, 880.88 and 880.885;
to renumber and amend 51.20 (7) (d)
81. (intro.), 51.40 (2) (b) 2. a., 51.40 (2) (b) 2. b., 51.40 (2) (b) 2. c., 51.40 (2) (b) 2.
9d., 880.01 (1), 880.01 (2), 880.01 (3), 880.01 (7), 880.01 (7m), 880.01 (8), 880.01
10(9), 880.01 (10), 880.02, 880.04 (title), 880.04 (1), 880.04 (2), 880.04 (2m), 880.04
11(3), 880.05, 880.06 (1), 880.06 (2), 880.07 (title), 880.07 (1) (intro.), 880.07 (1) (b),
12880.07 (1) (d), 880.07 (1) (h), 880.07 (1) (i), 880.07 (1) (j), 880.07 (2), 880.075,
13880.08 (intro.), 880.08 (1), 880.08 (3) (am) (intro.), 880.08 (3) (am) 1., 880.08 (3)
14(am) 2., 880.08 (3) (am) 3., 880.08 (3) (am) 4., 880.08 (4), 880.09 (intro.), 880.09
15(1), 880.09 (2), 880.09 (3), 880.09 (6), 880.09 (7), 880.10, 880.13 (1), 880.13 (2)
16(a), 880.13 (2) (b), 880.14, 880.15 (1), 880.15 (1s), 880.15 (3), 880.155, 880.157
17(1), 880.157 (2), 880.17, 880.173 (1), 880.175, 880.18, 880.19 (1), 880.19 (2) (a),
18880.19 (2) (b), 880.19 (3), 880.19 (4) (a), 880.19 (4) (b), 880.19 (4) (c), 880.19 (5)
19(a), 880.19 (5) (b), 880.19 (5) (c), 880.191 (1), 880.191 (2), 880.195, 880.215,
20880.22 (1), 880.22 (2), 880.23, 880.24 (2), 880.24 (3) (title), 880.24 (3) (a) (intro.),
21880.24 (3) (b), 880.245, 880.25 (1), 880.25 (2), 880.25 (3), 880.25 (4), 880.25 (5),
22880.252, 880.253, 880.26 (1) (intro.), 880.26 (1) (a), 880.26 (1) (b), 880.26 (1) (c),
23880.26 (2) (intro.), 880.26 (2) (a), 880.26 (2) (b), 880.26 (2) (c), 880.26 (2) (d),
24880.26 (3), 880.27, 880.28, 880.29, 880.31 (2), 880.31 (3), 880.31 (6), 880.32,
25880.33 (1), 880.33 (2) (a) 1., 880.33 (2) (a) 2., 880.33 (2) (a) 3., 880.33 (2) (b),
1880.33 (2) (e), 880.33 (5), 880.33 (5m), 880.33 (6), 880.33 (7), 880.33 (8) (b),
2880.33 (9), 880.331 (title), 880.331 (1), 880.331 (2), 880.331 (3), 880.331 (4) (a),
3880.331 (4) (b), 880.331 (4) (c), 880.331 (4) (d), 880.331 (4) (e), 880.331 (4) (f),
4880.331 (5) (intro.), 880.331 (5) (a), 880.331 (5) (b), 880.331 (5) (c), 880.331 (5)
5(e), 880.331 (5) (f), 880.331 (6), 880.331 (7), 880.331 (8), 880.34 (title), 880.34 (1),
6880.34 (2), 880.34 (4), 880.34 (5), 880.35, 880.36 (1), 880.36 (2), 880.38 (title),
7880.38 (2), 880.38 (3), 880.39, 880.60, 880.61, 880.615, 880.62, 880.625, 880.63,
8880.635, 880.64, 880.645, 880.655, 880.66, 880.67, 880.68, 880.685, 880.695,
9880.70, 880.705, 880.71, 880.715, 880.72, 880.76, 880.81, 880.815, 880.83,
10880.835, 880.845, 880.855, 880.87, 880.89, 880.895, 880.90 and 880.905;
to
11consolidate, renumber and amend 880.31 (1) and (7) and 880.31 (4) and (5);
12to amend 6.03 (1) (a), 6.03 (3), 17.03 (6), 19.32 (1m), 29.161, 29.164 (3) (e),
1329.171 (1), 29.173 (1), 29.182 (4m), 29.184 (6) (c) 1r., 29.184 (6) (c) 2., 29.231 (1),
1429.235 (1), 29.512 (1), 32.05 (4), 32.06 (4), 32.06 (7), 32.075 (3) (b), 32.22 (6) (b),
1536.27 (2) (a) 5., 40.08 (9), 45.36 (1) (b), 46.011 (intro.), 46.27 (1) (e), 46.977 (1)
16(a), 46.977 (2) (a), 46.977 (2) (b) 1., 46.977 (2) (c) 2., 48.14 (2) (b), 48.14 (11),
1748.345 (intro.), 48.347 (intro.), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (8),
1848.978 (7), 49.001 (8), 49.498 (3) (a) 1., 49.498 (3) (c), 50.03 (14) (c) 8. e., 50.06
19(2) (intro.), 50.06 (2) (c), 50.09 (3), 50.94 (2) (intro.), 50.94 (6), 51.01 (5) (a), 51.01
20(14), 51.03 (3) (a) 6., 51.05 (2), 51.10 (8), 51.22 (4), 51.30 (4) (b) 8m., 51.30 (4) (b)
2118. a., 51.30 (4) (b) 18. c., 51.30 (4) (b) 20. (intro.), 51.30 (4) (dm) 2., 51.30 (4) (f),
2251.30 (5) (a), 51.30 (5) (b) 1., 51.30 (5) (e), 51.35 (7), 51.40 (title), 51.40 (1) (e),
2351.40 (1) (f), 51.40 (1) (g) 1., 51.40 (2) (intro.), 51.40 (2) (a) 1., 51.40 (2) (a) 2.,
2451.40 (2) (b) (intro.), 51.40 (2) (b) 1., 51.40 (2) (b) 2. (intro.), 51.40 (2) (g) 1., 51.45
25(2) (e), 51.45 (10) (a), 51.45 (10) (c), 51.45 (13) (c), 51.45 (13) (e), 51.61 (1) (o),
151.61 (1) (w) 3., 55.02, 55.03, 55.05 (2) (d), 55.05 (5) (b) 1., 55.05 (5) (b) 2., 55.06
2(1) (intro.), 55.06 (1) (a), 55.06 (2) (b), 55.06 (3) (c), 55.06 (4), 55.06 (5), 55.06 (6),
355.06 (8) (c), 55.06 (10) (c), 55.06 (14), 55.06 (17) (b), 58.05 (2), 66.0915 (1),
466.0915 (2), 71.07 (3m) (a) 1. e., 71.28 (2m) (a) 1. e., 71.47 (2m) (a) 1. e., 71.58
5(1) (f), 75.03 (title), 75.521 (8), 75.521 (12) (b), 75.521 (13) (b), 88.04 (2), 88.10,
692.03 (4) (intro.), 93.11 (6) (a) 1., 114.135 (2), 115.76 (12) (b) 2., 115.797 (1) (c),
7115.807 (intro.), 146.34 (1) (d), 146.81 (5), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9.
8c., 146.83 (4) (b), 154.07 (2), 154.13 (2) (c), 155.05 (1), 155.60 (1), 155.60 (2),
9155.65 (2) (c), 179.65, 180.0103 (11), 181.0103 (14), 186.10 (2), 214.37 (4) (k) 1.,
10215.14 (9) (title), 215.26 (8) (e) 1., 223.03 (6) (intro.), 223.10, 243.07 (3) (a),
11243.07 (3) (b), 252.15 (2) (a) 4. a., 252.15 (2) (a) 4. b., 252.15 (2) (bm) (intro.),
12252.15 (5) (a) 15., 253.10 (3) (c) 7., 343.31 (title), 343.31 (3) (a), 403.308 (1),
13565.30 (2), 609.65 (1) (intro.), 628.10 (1), 705.04 (2), 706.03 (4), 706.09 (1) (f),
14753.30 (1), 757.48 (1) (a), 757.48 (3), 757.69 (1) (h), 758.19 (6) (a), 758.19 (6) (d)
151., 758.19 (6) (d) 2., 765.11 (1), 766.51 (7), 767.29 (3) (a), 786.01, 786.02, 786.03,
16786.04, 786.05, 786.06 (intro.), 786.06 (1), 786.06 (2), 786.07, 786.08 (1) (a),
17786.08 (1) (b), 786.08 (2), 786.10, 786.13, 786.14, 786.15, 786.16, 786.17 (1),
18786.18 (1), 786.19, 786.20, 786.21, 786.25 (1), 786.25 (2), 786.25 (3), 801.11 (2)
19(intro.), 801.11 (2) (b), 802.10 (1), 803.01 (3) (title), 803.01 (3) (a), 803.01 (3) (b)
202., 803.01 (3) (b) 3., 803.01 (3) (b) 4., 803.01 (3) (b) 5., 803.01 (3) (b) 6., 803.01
21(3) (c) (title), 803.01 (3) (c) 2. (intro.), 803.01 (3) (c) 2. a., 803.01 (3) (c) 2. b., 803.10
22(2), 804.02 (1) (b), 806.04 (4) (intro.), 807.10 (title), 807.10 (1), 807.10 (2), 807.10
23(3), 807.13 (2) (intro.), 808.075 (4) (f) (intro.), 808.075 (4) (f) 1., 808.075 (4) (f) 2.,
24808.075 (4) (f) 3., 808.075 (4) (f) 4., 808.075 (4) (f) 5., 808.075 (4) (f) 6., 808.075
25(4) (f) 7., 808.075 (4) (f) 8., 808.075 (4) (f) 9., 808.075 (4) (f) 11., 808.075 (4) (f) 12.,
1808.075 (4) (f) 13., 813.12 (5) (d), 813.123 (3) (b) 1., 814.61 (12) (a) 1., 814.66 (1)
2(b) 2., 814.66 (1) (m), 842.25, 851.72 (2), 851.72 (3), 851.73 (1) (a), 854.08 (5)
3(title), 854.13 (2) (f), 854.17, 857.15, 860.13, 862.03 (title), 862.03 (1), 862.03 (4),
4863.43, 863.45, 865.02 (1) (b) 1., 865.03 (1), 867.03 (1c), 878.07 (4), 879.09,
5879.11, 879.13, 879.15 (1), 879.19, 879.23 (1), 879.23 (4) (a), 879.23 (4) (c),
6879.23 (5), 879.26, 879.27 (4), 879.27 (5), 879.57, 885.17, 905.04 (4) (a), 905.04
7(4) (am), 938.02 (20m) (a) 5., 938.345 (1) (e), 949.04 (1) (b), 950.02 (4) (a) 5.,
8968.20 (1m) (a) 1. and 992.08;
to repeal and recreate 51.40 (2) (f); and
to
9create 29.024 (2u), 50.02 (2) (ad), 51.01 (4g), 51.01 (4r), 51.01 (14t), 51.20 (13)
10(g) 4., 51.40 (1) (em), 51.40 (1) (hm), 51.40 (1) (m), 51.40 (2) (b) 2. g., 51.40 (2)
11(g) 6., chapter 54, 55.01 (1v), 55.01 (6t), 55.01 (6v), 55.06 (3) (d), 55.14, 55.19,
1255.195 (7), 55.195 (9), 155.40 (2m), 243.10 (7) (c), 343.06 (1) (L), 343.31 (2x),
13440.121 and 814.66 (1) (n) of the statutes;
relating to: guardianships,
14conservatorships, and wards; involuntary administration of psychotropic
15medication; protective placements and protective services; powers of attorney
16for health care; durable powers of attorney; venue, residence, and county of
17responsibility; requiring the exercise of rule-making authority; and providing
18a penalty.
Analysis by the Legislative Reference Bureau
Current guardianship law
Current guardianship law specifies standards and procedures for
determinations by courts that certain individuals are proper subjects for
guardianship or conservatorship because of incompetency, spendthriftiness, or
minority. For such an individual, after presentation of evidence in a hearing, the
court may approve a petition for guardianship and appoint a guardian of the person
or guardian of the estate, or both, may dismiss the petition, or, for small estates, order
that certain payments be made on behalf of the individual without appointment of
a guardian. A court may consider a petition for appointment of a temporary guardian
and, after presentation of evidence in a hearing, appoint a temporary guardian for
a period not to exceed 60 days or may consider a petition for limited guardianship of
property and, after presentation of evidence in a hearing, appoint such a limited
guardian of property. As an alternative to guardianship, a court may after
presentation of evidence in a hearing, appoint a conservator for an adult who feels
unable to manage his or her own property and has applied for a conservatorship. No
adult may be protectively placed or receive protective services unless he or she has
been determined incompetent under the guardianship laws.
Determination of incompetence and appointment of guardian
Jurisdiction and venue; county of residence
Currently, the circuit courts have jurisdiction over all petitions for
guardianship; petitions must be directed to the circuit court of the county of
residence of the proposed ward or of the county in which the proposed ward is
physically present. For nonresidents, the petition may be directed to the circuit court
of a county in which the nonresident or his or her property may be found. The court
in which a petition is first filed must determine venue for a nonresident.
This bill also permits a petition for guardianship to be directed to the county in
which the petitioner proposes that the proposed ward reside.
Under current law, for purposes of determining responsibility for funding the
provision of social services, mental health and alcohol and other drug abuse services,
and protective placements and protective services, the county of residence of
individuals aged 18 or older with developmental disability or chronic mental illness
in state facilities or nursing homes is determined under numerous criteria. As an
exception to these criteria, the individual's county of residence is that of his or her
guardian if the individual is incapable of indicating intent and has a parent or sibling
who serves as his or her guardian or if the individual's guardian states that the
individual is expected to return to the guardian's county of residence when the
purpose of entering the state facility or nursing home has been accomplished or when
needed care and services can be obtained in the guardian's county of residence. An
individual, an interested person on his or her behalf, or a county may request that
the Department of Health and Family Services (DHFS) make a determination of the
county of responsibility of the individual. The decision is binding on the individual
and on any county that received notice of the proceeding. Currently, under the laws
relating to protective placements and protective services, a petition for appointment
of a guardian and for protective services or protective placement for an individual
must be filed in the county of residence of the individual to be protected. Currently,
under the laws relating to guardianship, all petitions for guardianship must be
directed to the circuit court of the county of residence of the proposed ward or of the
county in which the proposed ward is physically present. For a nonresident, the
petition may be directed to the circuit court of any county in which the nonresident
or his or her property may be found. The court in which the petition is first filed must
determine venue and must order the record certified to the proper court in another
county if it is determined that venue lies in that county. If a guardian or a ward
changes residence to another county, the circuit court for the county in which the
ward resides may appoint a new guardian and may order the guardianship accounts
settled and the property delivered to the new guardian.
With respect to determining a county of residence, the bill clarifies that a
determination may be made for adults with developmental disabilities, serious and
persistent mental illnesses, degenerative brain disorders, or other like incapacities
who reside in any place, other than a hospital that is licensed, registered, certified,
or approved by DHFS or a county under certain laws. The bill also clarifies that a
court that issues an order for involuntary commitment or protective placement or
protective services may, after notice and an opportunity for affected counties and
parties to be heard have been provided, make a specific finding of a county of
residence. If an affected county or party objects, the county or party may request that
DHFS make a determination and a transfer of venue may be suspended until the
determination of DHFS is final. The bill modifies the criteria for determining a
county of residence and authorizes a guardian to declare a county of residence under
certain circumstances. The bill requires that the county that is determined to be the
county of residence reimburse any other county, under specified time limits, for all
social services, mental health, alcohol and other drug abuse, protective placement,
and protective services care, treatment, and services.
For laws relating to protective placements or protective services and to
guardianship, the bill modifies requirements for filing a petition for protective
placement or protective services or guardianship to require filing either in the county
of residence or, under certain circumstances, where the individual to be protected is
physically present. If a person has not previously received services or has
established residence in a different county after receiving and terminating services,
the court may determine the individual's county of residence. The bill also requires
that the court in which a petition for protective placement or protective services is
first filed determine venue, after notice to and an opportunity to be heard by
potentially affected counties. If an affected county or party objects to the court's
determination, the court may refer the issue to DHFS for determination and may
suspend ruling on a motion for change of venue until the DHFS determination is
final.
Petition for guardianship
Currently, any person may petition for the appointment of a guardian for an
individual. Each petition must state certain information about the individual. If the
petition alleges that the individual is not competent to refuse psychotropic
medication, the petition must also allege certain matters concerning the necessity
for involuntary administration of psychotropic medication.
The bill eliminates the petition requirements concerning the involuntary
administration of psychotropic medication. The bill requires that certain additional
information be included in a petition for guardianship, including whether the
proposed ward is a recipient of a public benefit, the agent under any power of
attorney for health care or financial power of attorney executed by the proposed
ward, and whether a full or limited guardian is requested and, if limited, the specific
guardian authority or limitation on the ward's rights that is sought.
Examination of proposed ward
Under current law, when a guardian is proposed to be appointed for a ward on
the ground of alleged incompetency, a physician or psychologist, or both, must
furnish a written statement, based on an examination, concerning the proposed
ward's mental condition. The proposed ward must be informed that his or her
statements may be used as a basis for a finding of incompetency and for an order for
protective services, including the involuntary administration of psychotropic
medication, and that he or she may remain silent. The statement must be provided
to the proposed ward and his or her guardian ad litem and attorney.
The bill requires that the physician or psychologist examining the proposed
ward furnish a report, instead of a statement, stating his or her professional opinion
regarding the presence and likely duration of any medical or other condition causing
the proposed ward's incapacity. The petitioner must provide a copy of the report to
the petitioner's attorney, if any, as well as to the proposed ward and his or her counsel
and guardian ad litem. Either the guardian ad litem or the physician or psychologist
must inform the proposed ward that, absent a court order, he or she may refuse to
participate in the examination. The court must consider the recency of any such
report in determining its accuracy and the weight to be given to it. The bill also
authorizes submitting a petition to the court to order the proposed ward to submit
to an examination and permits access by the physician or psychologist to the
proposed ward's patient health care records and mental health treatment records.
Notice
Current law specifies differing requirements for provision of notice, time limits
for service of notice, and required recipients of notice for the appointment of a
guardian for an individual on the basis of incompetency, spendthriftiness, and
minority.
The bill requires that a notice be in writing and specifies requirements and
standards for the giving of notice. The bill requires that, for all notices of proposed
guardian appointment on the basis of incompetency or spendthriftiness, or for
rehearings, the petitioner provide notice to the proposed ward and existing guardian,
if any, and to the proposed ward's counsel, guardian ad litem, presumptive adult
heirs, any agent under a financial power of attorney or power of attorney for health
care, custodian, and proposed guardian; any agency, charity, or foundation from
which the proposed ward is receiving aid or assistance; and any other person
required by the court. Special requirements apply for notice of hearing for the
proposed guardianship of a minor and to a notice and hearing for temporary
guardianships.
Appointment of guardian ad litem
Currently, a court must appoint a guardian ad litem when appointment of a
guardian on the ground of incompetency is proposed, to protectively place or provide
protective services to an individual or review a protective placement or protective
services order, or to terminate a protective placement. An interested party in a
proceeding, who appears as counsel in a proceeding, or who is a relative or
representative of an interested person, may not be appointed as guardian ad litem
in that proceeding. A guardian ad litem has numerous duties, including
interviewing the proposed ward and explaining the hearing procedure, right to
counsel, and right to request or continue a limited guardianship; advising the
proposed ward of his or her rights; and presenting evidence concerning the proposed
ward's best interests.
The bill expands the circumstances under which a court must appoint a
guardian ad litem to include whenever a petition is brought for appointment of a
guardian, to review the scope of guardianship, to expand an order of guardianship,
to review incompetency and terminate a guardianship, and to review the conduct of
a guardian, and any other time that a court determines it necessary. The bill expands
the prohibition on appointment of an interested person, as defined in the bill, or a
relative or representative of an interested person, from appointment as guardian ad
litem in any proceeding that involves the same ward. The bill also expands duties
of the guardian ad litem, including requiring that the guardian ad litem interview
the proposed guardian, any proposed standby guardian, and any other person
seeking appointment as guardian and report to the court concerning the fitness of
each individual interviewed; review any power of attorney for health care or financial
power of attorney executed by the proposed ward and any other advance planning
for financial and health care decision making of the proposed ward; interview any
agent under such a power of attorney; inform the court if the proposed ward or ward
requests representation by counsel; and attend all court proceedings related to the
guardianship.
Rights of the proposed ward
Currently, a proposed ward has the right to counsel, the right to a trial by jury
if requested at least 72 hours before the hearing, the right to present and
cross-examine witnesses, the right to receipt of the physician's or psychologist's
report 96 hours in advance of the hearing, and the right to secure an independent
medical or psychological evaluation. A court must appoint a guardian ad litem and
require attorney representation if requested, if the involuntary administration of
psychotropic medication is proposed, if the proposed ward is opposed to the
guardianship, or if the interests of justice require it. If a guardian is appointed, a
court may allow payment of reasonable expenses incurred by the ward in contesting
the appointment.
The bill expands these rights to wards (for reviews of guardianships and other
matters) and provides to the proposed ward or ward the rights to be present at any
hearing regarding the guardianship and to have any such hearing conducted in a
location and manner that is accessible to the proposed ward. The bill allows a request
for a jury trial to be made at least 48 hours before a hearing. The bill clarifies that
expenses incurred by the ward in contesting the appointment are payable from the
ward's income or assets before other attorney or guardian ad litem fees.
Appointment of guardian; determination of incompetence
Under current law, a court may appoint a guardian to have care, custody, and
control of, or to manage the estate of, an individual who is determined by the court
to be incompetent, a spendthrift, or a minor. The standard for a finding of
incompetency includes substantial incapability of managing one's property or caring
for oneself by reason of infirmities of aging, developmental disabilities, or other like
incapacities; physical disability without mental incapacity is insufficient to establish
incompetence.
The bill changes the standard for a finding of incompetence and appointment
of a guardian of the person or a guardian of the estate, or both, for an individual, to
authorize the finding and appointment only if the court finds, by clear and convincing
evidence, that the individual is aged at least 17 years and nine months; that (for
purposes of appointment of a guardian of the person) because of an impairment, as
defined in the bill, 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; and that (for purposes of appointment of a guardian of the estate) 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, to the extent that the property will be dissipated,
the individual is unable to provide for his or her support, or the individual is unable
to prevent financial exploitation. Further, the individual's need for assistance in
decision making or communication must be 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. Unless the proposed ward is unable to communicate decisions effectively
in any way, this determination may not be based on mere old age, eccentricity, poor
judgment, or physical disability.
The bill requires that, in appointing a guardian, declaring incompetence of the
individual to exercise certain rights, or in determining the powers that are
appropriate for a guardian to exercise, the court consider numerous matters,
including the guardian ad litem report; the medical or psychological report and any
other evaluation; whether the proposed ward has engaged in any advance planning
for financial and health care decision making; whether appointment of a guardian
is the least restrictive means, as defined in the bill, to provide for the individual's
need; and the preferences of the individual with regard to personal needs or property
management. The court also must determine if additional medical, psychological,
social, vocational, or educational evaluation is necessary to make an informed
decision concerning the individual's competency to exercise legal rights. The court
must authorize a guardian to exercise only necessary powers and to exercise them
in a manner that is appropriate and that constitutes the least restrictive form of
intervention.
Exceptions to appointment of guardian
Currently, if a minor or an individual who is found incompetent is, except for
his or her incapacity, entitled to have personal property of $10,000 or less, a court,
without requiring the appointment of a guardian, may order the property be
deposited in a bank or other financial institution or invested, make payment to the
natural guardian or person having custody of the minor, make payment to the minor,
or make payment to the person with actual or legal custody of the individual found
incompetent or to the person providing for the care and maintenance of the
individual found incompetent. Similar provisions apply for possession by a minor or
individual found incompetent of $5,000 or less from an estate. The bill increases to
$20,000 the dollar limitation on personal property for these types of dispositions.
Nomination of guardian
Currently, a court must consider nominations for guardian that are made by
any interested person, by a minor over 14 years, by a parent in a will, and by an
individual for himself or herself in an anticipatory document. The court must also
consider the opinions of an individual who is alleged to be incompetent and of the
members of the individual's family, potential conflicts of interest, the appointment
of an individual's agent under a power of attorney for health care, and whether a
nonprofit corporation is qualified to serve as guardian. The court must appoint one
or both parents, if suitable and willing, of a minor or person with developmental
disabilities or other like incapacity. No person, except a nonprofit corporation, may
accept guardianship of the person of more than five adult wards who are unrelated
to the person, unless, up to a limit of ten, the additional guardianships are approved
by DHFS under rules promulgated by DHFS under the laws relating to protective
placement.
The bill requires, unless the court finds that the appointment is not in the
proposed ward's best interests, that the court appoint, as guardian of the estate, an
agent under a proposed ward's financial power of attorney; as guardian of the person,
the agent under a proposed ward's power of attorney for health care; and as guardian,
one or both parents of a minor, or an individual with developmental disability or with
serious and persistent mental illness, as defined in the bill. The bill limits the power
of a parent to nominate by will a guardian of the person or guardian of the estate for
the parent's minor child if the court finds that the appointment is not in the minor's
best interests. A private nonprofit corporation or an unincorporated association that
is approved by the court may be appointed as guardian if no suitable individual is
available and if DHFS, under rules promulgated under the guardianship laws, finds
the corporation or association suitable. The bill limits the number of adult wards for
whom an individual may have guardianship to five adult wards who are unrelated
to the individual, unless the limitation is waived by a court, and eliminates
restrictions on the number of adult wards for which a nonprofit corporation or
unincorporated association may accept guardianship. At least 96 hours before the
hearing the proposed guardian must submit to the court a sworn and notarized
statement as to whether, among other things, the proposed guardian is currently
charged with or has been convicted of a crime, has filed for or received protection
under the federal bankruptcy laws, has had a professional license suspended or
revoked, or is listed on the caregiver abuse registry.
Hearing
Under current law, a hearing on a petition for guardianship must be open
unless the proposed ward or his or her counsel moves that it be closed. If closed, only
certain persons may be present.
This bill requires that each hearing under the guardianship laws be closed
unless the proposed ward or his or her counsel moves that it be open. The bill
requires that petitions for guardianship, except for temporary guardianship and
petitions for protectively placed individuals in certain facilities, be heard within 90
days after they are filed; that court determinations of incompetency or
spendthriftiness be made by clear and convincing evidence; that the proposed
guardian and any proposed standby guardian be physically present at the hearing
unless excused by the court or unless the court permits their attendance by
telephone; and that an adult proposed ward attend the hearing unless the guardian
ad litem, under certain standards, waives attendance. If the proposed ward is unable
to attend the hearing because he or she resides in a facility or because of physical
inaccessibility or a lack of transportation, and the proposed ward, guardian ad litem,
advocate counsel, or other interested person so requests, the court must hold the
hearing in a place where the proposed ward may attend. A court that finds a
proposed guardian to be inappropriate must require another petition proposing a
suitable guardian, set a date for a subsequent hearing, and require the guardian ad
litem to investigate the suitability of a new proposed guardian.
Disposition of petition
Currently, if a proposed ward has executed a power of attorney for health care,
the court, in a determination of incompetency, may find that the power of attorney
should remain in effect and, if so, must limit the power of the guardian from making
health care decisions for the ward that the agent under the power of attorney may
make, unless the guardian is also the agent. The bill requires that such a health care
power of attorney remain in effect and permits a court to revoke it or limit the power
of the agent only for good cause shown. Unless the court makes a revocation or
limitation, the guardian is prohibited from making health care decisions for the ward
that may be made by the agent.
Currently, when a guardian is appointed, the court must award from the ward's
estate payment of the petitioner's reasonable attorney fees and costs, including those
related to protective placement, unless the court finds it inequitable to do so after
considering the petitioner's interest in the matter, including a conflict of interest, the
ability of the ward's estate to pay the fees and costs, whether the guardianship was
contested, and any other relevant factor. This award may not be made if the ward
had engaged in advance planning (by, among other things, executing a financial
power of attorney) to avoid guardianship. The bill eliminates payment, from the
ward's income and assets, of the costs of a protective placement and changes a finding
that the ward had engaged in advance planning for financial health care decision
making to be a factor in awarding payment of the petitioner's reasonable attorney
fees and costs, rather than a prohibition on that payment.
Currently, the court may require a bond from the person appointed guardian
of the estate of a ward and may require a "blanket bond" from a county institutional
employee who is appointed a guardian for numerous residents of county facilities.
The bill requires that the court order specify the bond amount, prohibits requiring
a bond for the guardian of the person of the ward, and eliminates the authority to
require "blanket bonds."
The bill clarifies the grounds under which a court must dismiss a petition for
guardianship. If a guardian is appointed, the bill specifies the joint decision making
powers of any coguardians appointed; specifies that any financial power of attorney
executed by the proposed ward remains in effect unless, only for good cause shown,
it may be revoked or the agent's powers limited, and prohibits the guardian from
making decisions for the ward that may be made by the agent; specifies that the
county in which the action is pending for the guardianship proceeding is the county
that is liable for guardian ad litem fees; and specifies circumstances in which the
proposed ward is not liable for fees due his or her legal counsel.
Involuntary administration of psychotropic medication
Under current law relating to guardianship, a petition for appointment of a
guardian may allege that the proposed ward is not competent to refuse psychotropic
medication and that the medication is, under several criteria, necessary as a
protective service. "Not competent to refuse psychotropic medication" is defined to
mean that, because of chronic mental illness and after advantages and
disadvantages of and alternatives to accepting psychotropic medication have been
explained to an individual, he or she is incapable of expressing an understanding of
the advantages and disadvantages or is substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives in order to make
an informed choice about acceptance or refusal. If, at hearing, the court finds that
the individual is not competent to refuse psychotropic medication and that the
medication is necessary, the court must appoint a guardian to consent to or refuse
the medication on behalf of the individual and order development of a treatment plan
for the person. The relevant county department must at least annually review and
evaluate the individual's status and, if appropriate, recommend discharge or change
in the treatment plan. The court also must annually appoint a guardian ad litem to
review the county department's evaluations, inform the individual and his or her
guardian of certain rights, and file a report with the court. The court must order an
independent evaluation and a hearing to continue, modify, or terminate the
guardianship, if requested or on the court's own motion. If the individual
substantially fails to comply with the treatment plan and if certain conditions are
met, the court may authorize the guardian to consent to the involuntary
administration of psychotropic medication to the individual.
For purposes of the guardianship laws, the bill defines "psychotropic
medication" and establishes a standard for the power of a guardian to give informed
consent (subject to the power of an agent under any power of attorney for health care
of the ward) to the ward's voluntary receipt of psychotropic medication.
The bill clarifies that a guardian may consent to the involuntary
administration of psychotropic medication only under a court order under the laws
relating to protective placement and protective services. Under these laws, the bill
establishes an exclusive procedure for involuntary administration of psychotropic
medication as a protective service to an individual who has been protectively placed.
Under this procedure, a petition for involuntary administration of psychotropic
medication must meet all requirements for a protective services petition and also
allege the condition, past behavior, and numerous other matters relating to the
individual's competence to refuse psychotropic medication. A guardian ad litem
must be appointed for the individual and must report to the court his or her
conclusions concerning the allegations, and the court must appoint legal counsel on
behalf of the individual. If requested, the individual may have an independent
medical or psychological evaluation that is relevant to his or her competency to
refuse the medication, the truth of the petition's allegations, and whether
involuntary administration is in the individual's best interests. After hearing, the
court may authorize a guardian to consent to involuntary administration of
psychotropic medication to a ward as a protective service, if the court or jury finds
that, by clear and convincing evidence, the requirements for the involuntary
administration are met. If the court issues such an order, the order must specify the
methods of involuntary administration to which the guardian may consent; require
the presence of certain medical personnel when administered; require the
maintenance of records concerning the methods of administration used; and require
development of a treatment plan. The bill specifies procedures for noncompliance
with the order, requires annual review of the order, and requires performance of
annual review of the status of the individual by the relevant county department.
Further, the bill requires the court to appoint a guardian ad litem after receipt of the
annual county department report and specifies responsibilities of the guardian ad
litem with respect to the ward. The bill requires the court that issued the order for
involuntary administration of psychotropic medication annually to review reports of
the county department and the guardian ad litem and order either a summary
hearing or full due process hearing, after which the court must terminate, modify,
or order continuation of the order.
Duties and powers of a guardian; limitations
Currently, no guardian may lend guardianship funds to himself or herself and
a guardian is limited in purchasing property of the guardian's ward. A guardian
must pay just debts of the ward from the ward's estate and its income.
The bill specifies in detail numerous powers and duties of a guardian (either a
guardian of the person or a guardian of the estate) and clarifies that a guardian's
powers are limited to those authorized by statute or court order, that a ward retains
all rights that are not assigned to the guardian or otherwise limited by statute, and
that a guardian's powers are limited to those necessary to provide for the personal
needs or property management of the ward in a manner that is appropriate to the
ward and that constitutes the least restrictive form of intervention. Under the bill,
a guardian may not lend the ward's funds to another unless the court first approves
the terms, rate of interest, and any requirement for security, and may purchase
property of the ward only at fair market value and with the approval of the court.
The requirement to pay legally enforceable debts of the ward, including by filing tax
returns and paying taxes owed is, under the bill, made a duty of a guardian of the
estate.
Duties and powers of a guardian of the estate
Currently, although the title to the ward's estate remains the ward's, the
guardian of the estate must take possession of and protect and preserve the ward's
property; rents, income, and other benefits from the property; and any proceeds
arising from the sale or other actions to the property. The bill specifies numerous
duties of the guardian of the estate, and requires that the guardian of the estate, after
following any applicable requirements concerning petitioning the court for the
authority to sell, mortgage, pledge, lease, or exchange the ward's property, perform
these duties so as to provide the ward with the greatest amount of independence and
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 in light of the ward's personal wishes and preferences.
Currently, in exercising powers, the guardian of the estate must use the
judgment and care exercised by persons of prudence, discretion, and intelligence in
the management of their own affairs. Currently, after submittal of a petition and
under court order, assets of a ward may be transferred to the trustee of an existing
revocable living trust for the benefit of the ward or dependents or to the trustee of
a trust for the benefit of a minor ward or, if the minor dies, to his or her estate. A
guardian of the estate appointed for a married ward may exercise, with court
approval, management and control rights over marital or nonmarital property and
the ward's business affairs, join in a transaction for which joinder of both spouses is
required, or execute a marital property agreement, but not make, amend, or revoke
a will. The guardian of the estate may also, if specified in the court's order, continue
the business of a ward, and may apply to the court for adjustment of claims of the
ward. The guardian of the estate may, with court approval, retain real or personal
property of the ward or that the ward acquires by gift or inheritance. The guardian
of the estate may, without court approval, do numerous things on behalf of the ward,
including entering into contracts and applying for public and private benefits.
The bill requires that the guardian of the estate, in exercising powers, consider,
consistent with the functional limitations of the ward, the ward's understanding of
the harm that he or she is likely to suffer as the result of his or her inability to manage
property and financial affairs, the ward's personal preferences and desires, and the
least restrictive form of intervention for the ward. The bill requires that certain
actions specified in current law and numerous others specified in the bill may be
performed by the guardian of the estate with respect to the ward's income and assets
only with the court's prior written approval following any petition and upon any
notice and hearing that the court requires. Further, the bill specifies a detailed
procedure that a guardian of the estate must follow in order to transfer any of a
ward's assets to or for the benefit of another person. The bill also specifies numerous
powers, in addition to those in current law, which the guardian of the estate may
perform without first receiving the court's approval.
Duties and powers of guardian of the person
Under current law, a guardian of the person of a ward must annually report on
the ward's condition to the court and the relevant county department, and must
endeavor to secure necessary care or services on behalf of the ward. If a court finds
that an individual for whom a determination of incompetency is proposed is not
capable of understanding the objective of the elective process, the court may find the
individual ineligible to register to vote or to vote in an election.
The bill requires that a guardian of the person endeavor to secure care or
services that are in the ward's best interests by, among other things, regular
inspection, in person, of the ward's condition, surroundings, and treatment;
examination of the ward's patient health care records; and inquiry into alternatives
to treatment for the ward if drastic or restrictive treatment is proposed.
The bill specifies that a guardian of the person has only those rights and powers
that he or she is specifically authorized to exercise by statute, rule, or court order;
any other right is retained by the ward, unless the ward has been declared by a court
incompetent to exercise a right or the guardian of the person has been authorized by
a court to exercise certain rights usually retained by the ward. The bill specifies
numerous rights that are retained by individuals who are determined incompetent,
specifies a proceeding in which a court may find, by clear and convincing evidence,
that an individual has incapacity to exercise specified rights, including the right to
register to vote or vote and the right to consent to organ donation. A guardian of the
person may not exercise a right on behalf of a ward who is declared not competent
to exercise that right, unless so authorized by a court. The bill specifies the standard
under which a court may make this authorization, including the power to give
informed consent, if in the ward's best interests, to voluntary or involuntary
administration of psychotropic medication. Lastly, the bill specifies a standard that
the guardian of the person must follow in exercising powers and duties delegated to
the guardian of the person by a court.
Temporary guardianships
