On Point: C. Ch. 55, Protective placement

Winnebago County v. L.J.F.G., Case No. 22Ap1589, District 2, 04/12/2023 (one-judge opinion, ineligible for publication); case activity

L.J.F.G.’s (Emily’s) appeal concerned a stayed order for involuntary administration of psychotropic medication under Wis. Stat. § 55.14. While the court affirms the order and concludes that the evidence was sufficient to satisfy the statutory standard, it also noted that “the County certainly could have done a better job presenting evidence” and that the testimony was “hardly a model of clarity and does not put much meat on the bones.” (Opinion, ¶15). Moreover, the court added an observational footnote that “strongly encourages not only this county but other counties as well to take more care” presenting evidence at evidentiary hearings under Chapters 51 and 55. (Id., ¶16, n.3). The court further opined from its “singular perspective that much time could be saved for everyone in ‘the system’ if such additional time and care was employed at the petition and hearing stages.” (Id.).

Waukesha County DHHS v. M.A.S., 2022AP877, District 2, 3/22/23 (one-judge decision; ineligible for publication); case activity

R.B. (Rose), a daughter of M.A.S. (Mary), filed an appeal of an order granting the County’s petition for a protective placement of Mary. The court of appeals holds Rose doesn’t have standing to appeal the order.

The filing of an Emergency Protective Placement petition under §55.135(1) triggers a probable cause hearing within 72 hours. Once the court finds probable cause it may order a temporary protective placement for up to 30 days pending a hearing on a permanent protective placement. Wis. Stat. §55.135(5). Sometimes the client wants to exercise her right to an independent comprehensive evaluation under §55.10(4)(e) and §55.11(2), yet has trouble finding a doctor who can complete it within 30 days. May the client stipulate to extend the temporary protective placement so that she can obtain the evaluation?

J.C. v. R.S., 2022AP1215 , 2/16/23, District 4, (1-judge opinion, ineligible for publication); case activity

In a rare Chapter 55 reversal, the court of appeals held that the petitioner failed to prove that the individual under review had a degenerative brain disorder that was likely to be permanent.

Racine County v. P.B., 2022 WI App 62; case activity

Section 54.42(5) and 55.10(4) give a person undergoing guardianship and protective placement the “right to  be present” a the final hearing. Sections 54.44(4)(a) and 55.10(2) further require the county to ensure that the person “attends” the final hearing, unless the GAL waives attendance. In a published decision, the court of appeals holds that these statutes protect the person’s right to be physically present. Attendance by phone or video under §§885.58 and 885.60 does not suffice.

Sauk County v. W.B., 2021AP322, 9/9/22, District 4, (1-judge opinion, ineligible for publication; case activity

This decision should strike fear in the hearts of those who have executed a healthcare power of attorney or who hold an HPOA for a loved one. According to the court of appeals, when a court declares a person incapacitated and activates his HPOA, his agent may admit him to a nursing home. But the incapacitated person retains the power to revoke his HPOA and leave the nursing home. To prevent this result, a court must order a guardianship and protective placement for him.

Clark County v. R.F., 2022AP481, District 4, 9/1/22, (1-judge opinion, ineligible for publication); case activity

Too bad this decision isn’t recommended for publication.  The court of appeals reversed an order continuing a ch. 55 protective placement because the County failed to offer clear and convincing evidence that the continuation of protective placement would provide the least restrictive environment consistent with R.F.’s needs.  And because the County failed to respond to R.F.’s requested remedy, the court of appeals granted it. It remanded the case with directions to order the County to transition R.F. to protective services.

Clark County v. R.D.S., 2022AP229, District 4, 8/18/22; (1-judge opinion, ineligible for publication); case activity

Ch. 55 practitioners take note! This is one of a few Wisconsin decisions reversing the continuation of a ch. 55 protective placement due to insufficient evidence. Here, the County failed to prove that due to R.D.S.’s disability he was incapable of caring for himself and posed a substantial risk of serious harm to himself or others. And because the County did not address R.D.S.’s requested remedy (an order allowing him to live with his parents), the court of appeals granted it.

Waukesha v. L.J.E., 2022AP292, 10/5/22, District 2, (1-judge opinion, ineligible for publication); case activity

“Evans”  was diagnosed with bipolar disorder with psychotic features, a condition considered permanent but manageable with medication. When the County sought to commit her under the 5th standard, she argued that it failed to prove that she did not satisfy one of the “exclusions” to the 5th standard. Specifically, the 5th standard does not apply where the individual may be provided protective placement or services under ch. 55. The court of appeals rejected that argument.

Portage County v. K.K., 2021AP1315, 2/10/22, District 4, (1-judge opinion, ineligible for publication); case activity

This opinion has alarming implications for disabled people. The circuit court issued a summary judgment order continuing K.K.’s protective placement. She appealed and argued that summary judgment is not allowed in Chapter 55 cases. The court of appeals refused to reverse. It predicted that this due process violation would never recur, dismissed the appeal as moot, and thus ensured that the due process error can recur.