Court-Ordered Guardianships and Protective Services
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 individuals who are legally incompetent receive the support and services they need.
A guardian is a court-appointed decision-maker for an individual who is not able to make their own decisions based on memory losses, developmental disabilities, mental illness or other condition. The court may appoint the guardian as the guardian of the person, guardian of the person’s estate, or both. To proceed with guardianship, a medical doctor or licensed psychologist must complete an examination of the individual, find that the individual is no longer competent and be available to testify if the guardianship is contested.
A court can issue orders for a person who has a guardian 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 or others.
Protective services may be ordered for an individual who lives in their own home or apartment or in a residential facility. A wide range of services may be ordered including, but not limited to, case management, in-home care, nursing services, and adult day care.
Protective placement is required for anyone under guardianship 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.
Filing a Petition for Guardianship or Protective Order with the Probate Court
Families and other interested parties may initiate court action by filing a petition for Guardianship, Protective Services or Protective Placement with the Dane County Probate Court. Given the complexities of the law and legal documents, it is recommended that individuals wishing to file a petition retain an attorney to assist in drafting petitions and representing them during the legal process.
Role of DCDHS’s Adult Protective Services Unit
The responsibilities of DCDHS’s Adult Protective Services Unit include, but are not limited to:
- Providing the general public and others with information regarding guardianships and protective orders;
- Consulting with hospitals, agencies and other entities regarding whether a guardianship or protective order may be appropriate in a given situation;
- Consulting with guardians and professionals regarding their responsibilities and authority in situations involving guardianship and protective orders;
- Completing comprehensive evaluations to assist the Probate Court in determining appropriate dispositions of petitions;
- Conducting annual reviews of all individuals under a protective placement order; and
- Petitioning the court for protective orders when:
- other strategies for protecting the individual have failed or are unreasonable, and
- no other petitioner is available.