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Guardianship Update

Guardianship Update. Attorney Susan M. Fisher Wisconsin Guardianship Support Center Greater Wisconsin Agency on Aging Resources, Inc. (GWAAR). What Will B e Covered T oday?. Case L aw Update Legislation: Passed & Failed Systemic Update: Dementia Care Redesign

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Guardianship Update

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  1. Guardianship Update Attorney Susan M. Fisher Wisconsin Guardianship Support Center Greater Wisconsin Agency on Aging Resources, Inc. (GWAAR)

  2. What Will Be Covered Today? • Case Law Update • Legislation: Passed & Failed • Systemic Update: Dementia Care Redesign • ConsiderationsforPro Se Guardianships

  3. Something to Consider…

  4. Case Law Update

  5. Case Law Update • Four important WI Supreme Court cases were decided in 2013 in the areas powers of attorney, guardianships, WI Stat. Ch. 51, and WI Stat. Ch. 55. • In re the Matter of Mental Commitment of Melanie L.: Outagamie County v. Melanie L, 2013 WI 67. • In re the Matter of Mental Commitment of Samuel J. H.: Manitowoc County v. Samuel J.H., 2013 WI 68. • In the Estate of Nancy Ellen Lauebenheimer: Joseph McLeod v. Patricia Mudlaff et al, 2013 WI 76. • In re the Matter of Mental Commitment of Mary F. – R.: Milwaukee County v. Mary F.-R., 2013 WI 92.

  6. In re the Matter of Mental Commitment of Melanie L. • Issues Decided: • First Issue: Did the testifying expert sufficiently address the statutory standard within his testimony? • Second Issue: Did the court misapply the burden of proof by using “clear greater weight of the evidence” rather than “clear and convincing?”

  7. In re the Matter of Mental Commitment of Melanie L., Cont’d • Facts: • Melanie was the subject of a mental health commitment under Wis. Stat. Ch. 51. She was committed to outpatient care. • She did not contest the initial commitment. • Under that order, Melanie had certain requirements to meet, including taking 3 prescribed drugs and meeting with particular professionals. • Melanie disliked 1 of the 3 drugs as well as her designated psychiatrist. • She stopped taking the one drug and started seeing another mental health professional. (She still met with the first psychiatrist.) Other than these two things, she generally met the terms of the commitment order’s treatment conditions.

  8. In re the Matter of Mental Commitment of Melanie L., Cont’d • Facts, cont’d • The county petitioned to extend the commitment order. • The county relied, in particular, on one psychiatrist’s expert testimony. That psychiatrist testified • That he discussed the disadvantages and advantages and alternate treatment, but • He opined, “that she’s [not] capable of applying the benefits of the medication to her advantage.” • The circuit court found by the “clear greater weight of the evidence” that Melanie was incapable of applying an understanding of the advantages/ disadvantages of not taking psychotropic medication. • The circuit court extended the commitment order for another 6 months.

  9. In re the Matter of Mental Commitment of Melanie L., Cont’d • By longstanding WI and other law, one is able to refuse medication unless one is incompetent to refuse medication. • Competency and mental illness are not the same. One may be clinically psychotic but able to make a competent decision to refuse medication. • Significant liberty interests involved when an individual is given psychotropic medicine by force and/or by court order. • County’s burden to prove incompetency to refuse medication, not the individual's, even at an extension hearing

  10. In re the Matter of Mental Commitment of Melanie L., Cont’d • Specific WI Law: • Wis. Stat. § 51.61(1)(g)(4) For purposes of a determination under subd. 2. or 3., an individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true: a. The individual is incapable of expressing an understandingof the advantages and disadvantages of accepting medication or treatment and the alternatives. b. The individual is substantially incapable of applying an understandingof the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

  11. In re the Matter of Mental Commitment of Melanie L., Cont’d • Holding and Outcome: The Supreme Court overturned the circuit court. Reasons: • The circuit court used the incorrect standard of proof – the correct standard is “clear and convincing” and not “clear greater weight of the evidence.” • The testifying psychiatrist did not testify in manner expressly compliant with Wis. Stat. § 51.61(1)(g)(4)(b). • Medical experts must apply the standards set out in the competency standard. • Specifically, he changed the standard to “applying the benefits of the medication to her advantage” from whether she was making an informed choiceafter receiving an explanation of the advantages, disadvantages, and alternatives to the medication.

  12. In re the Matter of Mental Commitment of Melanie L., Cont’d • Wake of Melanie L. • Multiple cases stemming from this case and at least two overturned cases on the appellate level • Winnebago County v. Donna H., 2013 AP 80 (Wis. Ct. App. July 13, 2013) (published). • The county failed to prove individual had received any discussion about the disadvantages, advantages, and alternatives to medication – must have before making an informed choice to take/refuse medication. • (Note: Protective services case) • Eau Claire County v. Mary S., 2013 AP 2098 (Wis. Ct. App. Jan. 28, 2014) (unpublished). The appellate court held that • County has burden of proving individual incompetent to refuse medication • Before an individual may express a refusal (i.e., make an informed choice), the individual must receive a reasonable explanation under statute about the medication.

  13. In re the Matter of Mental Commitment of Samuel J. H. • Issue: Whether a review hearing must be held within 10 days of the transfer for transfers to a more restrictive environment or facility under Wis. Stat. Ch. 51 (when the transfer was made, not because of a violation of treatment conditions, but because of reasonable medical and clinical judgment). • Facts: • On May 31, 2011, Samuel was committed under a Ch. 51 mental health commitment. • Originally, he was in outpatient care, but he became increasingly delusional and violent. • On September 22, 2011, he was transferred to an impatient facility. • At time of transfer, informed of his rights but issues with the notice • On November 7, 2011, Samuel wrote a letter to the court saying he was “disturbed that [his] outpatient status was changed to inpatient without due procedure.” The court then sent a copy to corporation counsel. • On November 22, 2011, a public defender was appointed, and on November 30, 2011, Samuel petitioned the court for a review of his transfer. • At the review hearing, the circuit court found the transfer was made because of Samuel’s increasingly delusional behavior using reasonable medical and clinical judgment. • Samuel appealed. The Court of Appeals certified the case and it was heard by the WI Supreme Court.

  14. In re the Matter of Mental Commitment of Samuel J. H., cont’d • Applicable law: Wis. Stat. § 51.35(1)(e)1: • (e) 1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 51.60, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.

  15. In re the Matter of Mental Commitment of Samuel J. H., cont’d • Wis. Stat. § 51.35(1)(e)2: • 2. In addition to the rights and requirements specified in subd. 1., within 24 hours after any transfer which results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days and if the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the department or the county department specified under par. (a) shall ensure that the patient is provided a written statement of the reasons for the transfer and the facts supporting the transfer and oral and written notice of all of the following: • a. The requirements and rights under subds. 3. to 5. • b. The patient's right to counsel. • c. The patient's right to have counsel provided at public expense, as provided under s. 51.60. • d. The rights of the patient's counsel to investigate the facts specified in the written statement of reasons for the transfer, to consult with the patient prior to the patient's waiving a hearing under subd. 3., to represent the patient at all proceedings on issues relating to the transfer, and to take any legal steps necessary to challenge the transfer. • 3. Within 10 days after the transfer specified in subd. 2., a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under subd. 2….

  16. In re the Matter of Mental Commitment of Samuel J. H., cont’d • Holding: Wis. Stat. § 51.35(1)(e)2 only required hearings within 10 days when the transfer was for (a) a period longer than 5 days and (b) the transfer was initiated because of a violation of treatment conditions. • Remember: Medical need was the reason for the transfer and not a violation of treatment conditions • However, an individual may petition for court review per Wis. Stat. § 51.35(1)(e)1 regardless of the reason for the transfer.

  17. In re the Matter of Mental Commitment of Samuel J. H., cont’d • Important: Manitowoc County improved its practices during the course of this litigation. • Areas of concern and/or improved practice: • Written and oral notification required of rights under this Wis. Stat. § 51.35(1)(e) was and is still given. • Written notification should not include any language about indigency – appointment of counsel is a right without any determination of indigency. • Referrals to be made to the public defender as soon as practicable • Review hearings given within 10 days regardless of reason and not just for violations of treatment conditions.

  18. In re the Estate of Nancy Laubenheimer • Issue: Whether the marriage of a deceased individual can be declared void (after death) • Note: Subjects involved in this case include powers of attorney, guardianships, probate and estate matters.

  19. In re the Estate of Nancy Laubenheimer, Cont’d • Facts: • Nancy and Luke were married for 30 years when he died in 2001. He had three children from a prior marriage, and they were not adopted by Nancy. • In 1999, Nancy executed a will giving the bulk of her estate to Luke; but if he predeceased her, the bulk would go to Luke’s three children. She never altered her will after Luke’s death. • Sometime before March 2007 Nancy met Joseph McLeod and he came to live with her.

  20. In re the Estate of Nancy Laubenheimer, Cont’d • Facts, cont’d • In 2007, Nancy’s health started to fail. • On October 1, 2008, she was admitted to a hospital. Two doctors noted her diminished mental capacity. • October 11, 2008, a “Statement of Incapacity” was signed and her HCPOA was activated. Evidence shows her mental state never improved and her HCPOA was in effect until her death. • On October 13, 2008, Nancy was checked into a NH. • On October 27, 2008, McLeod checked her out to obtain a marriage license. He removed her again on November 3rd when they were married. McLeod told no family, friends, doctors, or social workers about the wedding. Nancy’s insurer told the NH staff about the marriage. • On January 12, 2009, a stepdaughter, Patricia, filed for guardianship and protective placement. A temporary guardianship was ordered. Within the petition, Patricia alleged that Nancy had a cognitive disability due to several strokes and that McLeod continues to interfere with the HCPOA, including checking her out of the nursing home. • On February 5, 2009, Nancy died.

  21. In re the Estate of Nancy Laubenheimer, Cont’d • Facts, cont’d: • On June 9, 2009, McLeod filed a petition for formal administration of Nancy's estate, requesting that (a) he be appointed personal representative and (b) a right to a share in Nancy’s estate. • The circuit court held it could not annul a marriage after one party’s death and it did not believe it could enter a declaratory judgment on whether the marriage was void. • The appellate court certified this to the WI Supreme Court.

  22. In re the Estate of Nancy Laubenheimer, Cont’d • Holding: The WI Supreme Court held a marriage may be declared void (via a declaratory judgment) post death if the person was not competent to consent to the marriage upon entry.

  23. In re the Estate of Nancy Laubenheimer, Cont’d • Law and Analysis: • Per Wis. Stat. § 765.02(1), only competent adults may marry (and minors with permission). • Marriage is a civil contract – the consent of the parties capable in law of contracting is essential. See Wis. Stat. § 765.01. • Per Wis. Stat. § 765.03, a marriage may not be contracted for in WI if • Already married; • Between person of closer kin than 2nd cousins; • If either party has such a want of understanding as renders him or her incapable of consenting to marriage; or • Previously divorced within 6 months of the new marriage.

  24. In re the Estate of Nancy Laubenheimer, Cont’d • If a marriage occurs under the prohibited conditions, it is void and not voidable. • The marriage can be validated by the removal of an impediment to marriage, but • Death before removal (i.e., ratification) is a fatal flaw to the marriage. • The capacity to enter into marriage is “somewhat analogous to a person’s capacity to make or revoke a will.” (The “sound of mind” standard) • Because the holding was a marriage could be voided if a party was not able to give consent to marry, the matter was remandedto review this issue.

  25. In re the Matter of Mental Commitment of Mary F. – R. • Issue: Whether an individual committed under Wis. Stat. Ch. 51( State Alcohol, Drug Abuse, Developmental Disabilities, and Mental Health Act) has his or her equal protection rights violated by only having the choice of a 6 -member jury (requiring a 5/6 vote) while individuals committed under Wis. Stat. Ch. 980 (Sexually Violent Person Commitment) have a 12-member jury and that decision must be unanimous.

  26. In re the Matter of Mental Commitment of Mary F. – R., cont’d • Facts: Mary was committed under a Ch. 51 mental commitment. • At the probable cause hearing, she requested orally and in writing a 12-person jury. She fired her attorney so the hearing was adjourned. • At the next probable cause hearing, she renewed her request for a 12-person jury. Request for jury granted but not for 12. • At initial commitment hearing, 6-person jury empaneled. Mary did not object. • A jury found grounds existed to commit Mary. • Mary appealed and claimed her equal protection rights were violated because those committed under Wis. Stat. 980 have the right to have a 12-person jury and an unanimous decision.

  27. In re the Matter of Mental Commitment of Mary F. – R., cont’d • Holding: The WI Supreme Court affirmed the circuit court and held that there was no violation of equal protection rights because of the jury differences between Wis. Stat. Ch. 980 and 51 (i.e., commitment of a sexually violent person vs. commitment of an individual with a mental illness, a developmental disability, or who is drug dependent). • The different purposes for each type of commitment (protection of public vs. individual), the varied legislative schemes, and the range of liberty interests involved [length of time committed and least restrictive environment (?)] provided a rational basis for the difference in jury requirements.

  28. Legislative Update

  29. Legislative Update • Passed: • WI Assembly Bill 360 (Now 2013 WI Act 158) • WI Assembly Bill 710 or the “Silver Alert” bill (Now 2013 WI Act 264) • WI Assembly Bill 488 (Now 2013 WI Act 340) • Failed • WI Assembly Bill 428* • WI Assembly Bill 575 • WI Senate Bill 127

  30. Passed: WI Assembly Bill 360 (2013 WI Act 158) • New changes include: • Generally, relates to emergency detention (ED) and involuntary commitment for treatment of persons who are mentally ill, developmentally disabled or drug dependent • Requires a determination to be made that the ED is the least restrictive alternative appropriate • Law enforcement can make the determination at the time of the incident • Once done, the individual is “in custody.” • Approval of ED when one reasonably believes the individual will not consent to evaluation, diagnosis, and the treatment is necessary to stabilize and remove the probability of harm. • Provides a clear purpose statement about why the emergency ED treatment is being given

  31. Passed: WI Assembly Bill 710 (2013 WI Act 264) • Creation of “Silver Alert” system for missing adults at risk • Law enforcement agencies to use integrated alert network to disseminate reports of missing adults at risk • Adults at Risk: Individual with a developmental disability, who suffers from Alzheimer’s disease or dementia, or who suffers from or could without medication a cognitive impairment that may render the adult incapable of getting to a familiar location

  32. Passed: WI Assembly Bill 488 (2013 WI Act 340) • About corporation counsel and three-person petitions under Wis. Stat. Ch. 51 • Previous / Current Law: • Three-person petitions may be used to involuntarily commit an individual. • Three-person petitions require a clear and concise statement articulating the grounds for the petition. • Corporation Counsel must represent the interests of the public in mental health proceeding under Ch. 51

  33. Passed: WI Assembly Bill 488 (2013 WI Act 340), Cont’d • New Law: Corporation Counsel may make a limited appearance when the petition may not be appropriate for the individual involved. • If so, corporation counsel shall inform the person seeking the petition he or she may discontinue seeking the petition or request that corporation counsel makes a limited appearance. • If so, provide notice to the petitioner about corporation counsel’s scope in the action and file the petition • May include statement that the person seeking the petition believes facts constitute probable cause • Court review also required within 24 hours of filing, not including weekends and legal holidays

  34. Failed Legislation • 2013 WI Assembly Bill 575: Post Helen E. F. legislation that was to create alternative procedures under Ch. 55 for individuals with dementia to be protectively placed in an emergency situation • 2013 WI Assembly Bill 428: Proposed expansion of Family Care to Brown, Door, Kewaunee, Marinette, Menominee, Oconto and Shawano Counties. • NOTE: On April 21, 2014, Governor Walker announced the expansion of Family Care to Brown, Door, Kewaunee, Marinette, Menominee, Oconto and Shawano Counties.

  35. Systemic Update

  36. DHS Dementia Care Redesign • What is it: A systemic overhaul of WI’s dementia care system initiated by the WI Department of Health Services (DHS) • Dementia Care Redesign (DCR) • Catalyst: • The population who is aging is increasing and will greatly increase in the next several decades • WI Supreme Court holding in In re the Mental Commitment of Helen E.F. • Creation of a special legislative committee on legal matters effecting those with Alzheimer's disease and related dementias

  37. DCR: Helen E. F Background • In re the Mental Commitment of Helen E.F. : • Helen was involuntarily committed under Wis. Stat. Ch. 51. She had a diagnosis of Alzheimer's Disease with symptoms including progressive dementia and memory loss. She had no diagnosis of mental illness. • The Ch. 51 was converted to a Ch. 55 with a 30-day protective placement order. The 30-day order expired and the county refiled the matter as a Ch. 51. At the Ch. 51 commitment hearing, the court granted the petition for a mental health commitment and Helen was ordered to be in a locked psychiatric unit. • Helen appealed. The WI Court of Appeals reversed but then the County petitioned for WI Supreme Court review.

  38. DCR: Helen E. F Background, Cont’d • WI Supreme Court Holding: • As Helen had dementia and her condition could not be rehabilitated, her mental health commitment under Ch. 51 was inappropriate. Protective placement was the appropriate avenue. • Brief Review of Statutory Purposes of Ch. 51 and Ch. 55. • Ch. 51: To facilitate the treatment of those who capable of being rehabilitated with no finding of incompetency • Ch. 55: To provide treatment but with no significant possibility of rehabilitation and with a finding of incompetency

  39. DCR: Helen E. F Background, Cont’d • Helen E. F resulted in significant concern/change/controversy because many others were being held through Ch. 51 mental health commitments and not Ch. 55 protective placements • Many wanted guidance and were unsure how to proceed.

  40. DCR: DHS Dementia Care Redesign Plan • Dementia Care Redesign*(DCR) • Timeline: • Formally started January 2014 (stakeholder summit in fall 2013) and go through 2017, most of it will be implemented in 2014-2015 • The Plan: Consists of 5 main priorities • Community Awareness & Services • Facility-Based Long Term Care • Care for People with Significant Challenging Behaviors • Dementia Care Standards & Training • Research & Data Collection

  41. DHS DCR: Community Awareness Priority • Efforts include for expanded outreach and community education, increased screening and early detection, and additional support for caregivers • Creation of Dementia Care Specialists (DCS) program • DCS provide cognitive screening for early detection, assistance with connecting individuals with appropriate medical professionals, and provide programs for people with dementia and their caregivers • DCS are currently found within ADRCs • Initial pilot program of 5 DCS • 2/28/14 announcement to expand to another 10 ADRCs • 11 ADRC applications approved and are to be implemented May 2014

  42. DHS DCR: Facility-Based Long-Term Care • Increased education or training • Review of facilities with best/promising practices • Promote dementia – friendly design

  43. DHS DCR: Care for People with Significant Challenging Behaviors • Care for People with Significant Challenging Behaviors • Promote/expand mobile crisis response programs to ensure dementia-capability capacity • *Clarification of Ch. 55’s emergency protective placement rules and Ch. 51’s rules on mental health commitment to extent • Address shortage of facilities that may accept emergency protective placement • **Work to increase designation of emergency placement protective placement facilities • Identify obstacles to designating emergency placement protective placement facilities • Create consistent standards and training related to caring for individuals exhibiting challenging behavior

  44. DHS DCR: Dementia Care Standards and Training • Identify and catalog existing dementia care training programs • Research existing standards and best practices • Develop voluntary training standards for those who work with people with dementia • Develop voluntary training standards for facilities and home care agencies • Create incentives for adoption of standards • Increase training for caregivers and other professionals • Develop data collection plan to help measure quality of dementia care and inventory of providers

  45. DHS DCR: Timeline and Resources • As indicated somewhat by the timeline, • This plan is still being implemented, and • This plan is still evolving and stakeholder/public feedback may modify the current plan. • Where to find more information: • DHS Website: • Alzheimer’s and Dementia Resources: http://www.dhs.wisconsin.gov/aging/Genage/ALZFCGSP.HTM • Dementia Care Redesign: http://www.dhs.wisconsin.gov/aboutdhs/initiatives/Dementia/index.htm

  46. Pro Se Considerations

  47. Pro Se Considerations • Significant Issue: The lack of knowledge about local practice • Suggestion: If not already done, memorialize your local practice(s) into a format that can be found by a guardian • Considerations about local county practices: • Are local probate practices/rules made available in writing to the public in any fashion? Are they identified in the county’s court rules? • Are there local probate forms? Are they readily available to the public? • Fee and payment considerations: • What fees do petitioners have to pay at the time of filing? • For example: GAL fee deposits or county payment upon appointment? • How are they informed of this? Local rules? • Are petitioners aware of Form CV-410: Petition for Waiver of Fees and Costs - Affidavit of Indigency and Order? • Post appointment matters: For example, guardian of estate- keep submit all receipts and statements when submitting an annual account or make them available if needed

  48. Questions?

  49. Guardianship Support Center • The Wisconsin Guardianship Support Center (GSC) is a statewide resource that works with vulnerable adults, their families and friends, guardians and other legally authorized representatives, and professionals working with vulnerable adults. • Through a toll-free helpline, the GSC provides information on the following subjects: • Guardianships, • Powers of attorney, • Protective placement, • Other advance directives, and • More. • Other services include a free quarterly newsletter, other publications, an APS listserv available to professionals working with vulnerable adults, and presentations on these topics throughout the state

  50. Guardianship Support Center • How to reach the GSC? • By phone: (855) 409-9410 • By email: guardian@gwaar.org • By fax: (866) 561-2652 • Address: Elder Law and Advocacy Center 1414 MacArthur Road Suite #306 Madison, WI 53714

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