Defined under Chapters 54 and 55 of Wisconsin Statutes, Guardianships and Protective Orders are legal methods for appointing an alternative decision-maker and specifying required services for individuals who are legally incompetent. While beneficial outcomes usually result, these legal processes limit or remove rights to which individuals in our society are normally entitled. Care must be taken to protect each individual’s rights while assuring that people who are legally incompetent receive the support and services they need.
Under Wisconsin Statutes Chapter 54.
A guardian is a court-appointed decision-maker for an individual who is not able to make their own decisions due to cognitive impairments related to a degenerative brain disorder, developmental disabilities, serious and persistent mental illness, or other like incapacities. An individual’s incapacity must be permanent, or likely to be permanent, and is unlikely to resolve with treatment. The court may appoint a guardian of person to make decisions related to health care, a guardian of estate to make decisions related to finances, or both. In order for the court to order guardianship, a medical doctor or licensed psychologist must complete an examination of the individual and submit a report to the court stating the individual no longer has capacity, and be available to testify if the guardianship is contested.
A Petition for Guardianship, Protective Placement or Protective Services must be filed with the Dane County Probate Court to initiate Guardianship, Protective Placement or Protective Services. Families may file petitions pro se (without an attorney), but due to the complexities of the law and legal documents involved, it is recommended that families retain an attorney to assist in filing the petitions and representing them throughout the proceedings. Dane County’s Adult Protective Services Adult Guardianship Unit is also able to file Petitions for Guardianship or Protective Placement or Protective Services if an individual is indigent and receives services or support through a community agency, such as a Managed Care Organization.
Under Wisconsin Statutes Chapter 55.
A court can issue order for a person who has a guardian of person to receive protective services or protective placement. The statutory standard is that, without the protective services or protective placement, the individual is so totally incapable of providing for their own care and custody that it creates a substantial risk of serious harm to themselves and/or others.
Protective services may be ordered for an individual who lives in his or her own home or apartment or adult family home. A wide range of services may be ordered including, but not limited to, case management, in-home care, nursing services, and adult daycare.
A protective placement order is required for anyone under guardianship of person who lives in a licensed facility of more than 16 beds. Protective placements must be in the least restrictive setting necessary to meet the individual’s needs. Protective placement orders are reviewed annually by the court.
The responsibilities of the Dane County Department of Human Services' Adult Protective Services Adult Guardianship Unit include, but are not limited to:
Wisconsin Guardianship Support Center, operated by the Coalition of Wisconsin Aging Groups.