Section 55.15. Transfer of an individual under a protective placement order.

 

(1)   Transfers authorized. An individual under a protective placement order may be transferred between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility. The individual may not be transferred, under the protective placement order, to any facility for which commitment procedures are required under ch. 51 .

(2)   Who may transfer. A guardian, a county department or agency with which it contracts under s. 55.02 (2) that provided protective placement to the individual pursuant to the order of the court, the department, or a protective placement facility may transfer an individual under a protective placement order under the requirements of this section, notwithstanding the fact that a court order has named a specific facility for the protective placement of the individual.

(3)   Consent of guardian required. No individual may be transferred under this section without the written consent of the individual's guardian, except in the case of an emergency transfer under sub. (5) (b) .

(4)   Consent of county department. No individual may be transferred under this section to a facility that is more costly to the county without the written consent of the county department, except in the case of an emergency transfer under sub. (5) (b) .

(5)   Notice of transfer.

(a) Nonemergency transfer. A person or entity who initiates a transfer shall provide 10 days' prior written notice of a transfer to the court that ordered the protective placement and to each of the other persons and entities specified in sub. (2) who did not initiate the transfer. The notice of transfer shall include notice of the right of the individual under a protective placement, the individual's attorney, if any, or other interested person to petition the court for a hearing on the transfer.

(b) Emergency transfer. If an emergency makes it impossible to provide the notice specified in par. (a) or to obtain the prior written consent of the guardian specified in sub. (3) , the individual may be transferred without the prior written consent of the guardian and without the notice specified in par. (a) . Written notice shall be provided immediately upon transfer to each of the persons and entities specified under sub. (2) who did not initiate the transfer. Notice shall also be provided to the court that ordered the protective placement within a reasonable time, not to exceed 48 hours from the time of transfer. The notice shall include notice of the right to file with the court under sub. (6) a petition objecting to the emergency transfer.

(6)   Petition. An individual under protective placement, the individual's guardian, the individual's attorney, if any, or any other interested person may file a petition with the court objecting to a proposed transfer or to an emergency transfer made under sub. (5) (b) . The petition shall specify the reasons for the person's objection to the transfer.

(7)   Hearing.

(a) The court shall order a hearing within 10 days after the filing of a petition under sub. (6) .

(b) The court shall notify the petitioner, the individual under protective placement, the individual's guardian, the individual's attorney, if any, and the county department of the time and place of the hearing.

(c) A guardian ad litem shall be appointed to represent the individual under protective placement at the hearing. If the individual is an adult who is indigent, the county in which the hearing is held shall be liable for guardian ad litem fees. If the individual is a minor, the individual's parents or the county in which the hearing is held shall be liable for guardian ad litem fees as provided in s. 48.235 (8) .

(cm) The court shall refer the individual under protective placement for appointment of legal counsel as provided under s. 55.105 if the individual, the individual's guardian ad litem, or anyone on the individual's behalf requests that counsel be appointed for the individual.

(d) The petitioner, individual under protective placement, the individual's guardian, the individual's guardian ad litem, and the individual's attorney, if any, have the right to attend the hearing and to present and cross-examine witnesses.

(8)   Standard for transfer. In determining whether to approve a proposed transfer or an emergency transfer made under sub. (5) (b) , the court shall consider all of the following:

(a) Whether the requirements of s. 55.12 (2) and (6) are met.

(b) Whether the protective placement is in the least restrictive environment consistent with the requirements of s. 55.12 (3) , (4) , and (5) or, if the transfer is to an intermediate facility or nursing facility, is in the most integrated setting, as defined in s. 46.279 (1) (bm) .

(c) Whether the protective placement is in the best interests of the person under protective placement.

(9)   Order relating to transfer. Following the hearing under sub. (7) , the court shall do one of the following:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's proposed protective placement does not meet the standards for transfer under sub. (8) , the court shall issue an order prohibiting the transfer. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards under sub. (8) in support of the denial of the transfer.

(b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the proposed transfer meets the standard under sub. (8) , the court shall approve the proposed transfer. The court may order protective services along with transfer of protective placement. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards in s. 55.08 (1) in support of the need for continued protective placement.

(c) If the court finds that the individual no longer meets the standards under s. 55.08 (1) , the court shall terminate the protective placement, as provided in s. 55.17 .

2005 a. 264 ; 2007 a. 20 , 45 . Based on principles of comity and the orderly administration of justice, this case sets forth standards for Wisconsin courts to follow when confronted with the transfer of interstate guardianships. Grant County Department of Social Services v. Unified Board of Grant and Iowa Counties, 2005 WI 106 , 283 Wis. 2d 258 , 700 N.W.2d 863 , 03-0634 . Section 55.06 (9) (b), 2003 stats., did not authorize a guardian to move the ward out of state, change the ward's domicile, and transfer the guardianship to Connecticut, all without prior approval. Linda L. v. Collis, 2006 WI App 105 , 294 Wis. 2d 637 , 718 N.W.2d 205 , 05-0494 .

Note

The above annotations relate to protective placements under ch. 55, stats., prior to the revision of that chapter by 2005 Wis. Act 264 . Microsoft Windows NT 6.1.7601 Service Pack 1