1.28.030 Incompetency; Appointment of Guardian

(a) Whenever it is proposed to appoint a guardian on the ground of incompetency a licensed physician or licensed psychologist, or both shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination. A copy of the statement shall be provided to the proposed ward, guardian ad litem and attorney. The person shall also be informed that he or she has right to remain silent and that the examiner is required to report to the court even if the person remains silent. The issuance of such a warning to the person prior to each examination establishes a presumption that the person understands that he or she need not speak to the examiner.

(b)(1)(A) The proposed ward has the right to counsel whether or not present at the hearing on determination of competency. The court shall in all cases require the appointment of a guardian ad litem or if, at least 72 hours before the hearing, the alleged incompetent requests; the guardian ad litem or any other person states that the alleged incompetent is opposed to the guardianship petition; or the court determines that the interests of justice require it. The proposed ward has the right to a trial by a jury if demanded by the proposed ward, attorney or guardian ad litem, except if notice of the time set for the hearing has previously been provided to the proposed ward and his or her counsel, a jury trial is deemed waived unless demanded at least 48 hours prior to the time set for the hearing. The number of jurors shall be six in number. The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (a). The attorney or physician or psychologist at least 48 hours in advance of the hearing. Any final decision of the court is subject to the right of appeal.

(B) If the person requests but is unable to obtain legal counsel, the court shall appoint legal counsel.

(2) If requested by the proposed ward or anyone on the proposed ward's behalf, the proposed ward has the right at his or her own expense, or if indigent at the expense of the tribe to secure an independent medical or psychological examination relevant to the issue involved in any hearing under this chapter, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

(3) The hearing on a petition which contains allegations that the person is refusing psychotropic drugs shall be held within 30 days after the date of filing of the petition, except that if a jury trial demand is filed the hearing shall be held within either 30 days after the date of filing of the petition or 14 days after the date of the demand for a jury trial, whichever is later. A finding by the court that there is probable cause to believe that the person is a proper subject for guardianship has the effect of filing a petition.

(4) Every hearing on a petition shall be open, unless the proposed ward or his or her attorney acting with the proposed ward's consent moves that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

(c) In a finding of limited incompetency, guardianship of the person shall be limited in accordance with the order of the court accompanying the finding of incompetence. If the proposed incompetent has executed a power of attorney for health care the court shall give consideration to the appointment of the health care agent for the individual as the individual's guardian. The court shall make a specific finding as to which legal rights the person is competent to exercise. Such rights include but are not limited to the right to vote, to marry, to obtain a motor vehicle operator's license or other state license, to hold or convey property and the right to contract. The findings of incompetence must be based upon clear and convincing evidence. The court shall determine if additional medical or psychological testimony is necessary for the court to make an informed decision respecting competency to exercise legal rights. The guardian, ward or any interested person may at any time file a petition with the court requesting a restoration of any such legal right, and specifying the reasons therefore. Such petition may request that a guardianship of the person be terminated and a guardianship of property be established.

(d) When it appears by clear and convincing evidence that the persons is incompetent, the court shall appoint a guardian.

(e)(1) If the court finds by clear and convincing evidence that the person is not competent to refuse psychotropic medication and the allegations are proven, the court shall appoint a guardian to consent to or refuse psychotropic medication on behalf of the person as provided in the court order under par. (b).

(2) In any case where the court finds that the person is not competent to refuse psychotropic medication and appoints a guardian to consent to or refuse psychotropic medication on behalf of the person, the court shall do all of the following:

(A) Order the appropriate mental health professional to develop or furnish, to provide to the ward, and to submit to the court, a treatment plan specifying the protective services, including psychotropic medication as ordered by the treating physician, that the proposed ward should receive.

(B) Review the plan submitted by the mental health professional and approve, disapprove or modify the plan.

(C) If the court modifies the treatment plan under sub. (b), the court shall order the mental health professional to provide the modified treatment plan to the ward.

(D) If the court modifies the treatment plan under sub. (b), the court shall order the appropriate mental health professional to provide the modified treatment plan to the ward.

(E) Order protective services.

(F) Order the appropriate mental health professional to ensure that protective services, including psychotropic medication, are provided in accordance with the approved treatment plan.

(f) If a person substantially fails to comply with the administration of psychotropic medication, if any, ordered under the approved treatment plan under sub. (e), the court may authorize the person's guardian to consent to forcible administration of psychotropic medication to the person, if all of the following occur before the administration:

(1) The Tribal Attorney or the person's guardian files with the court a joint statement by the guardian and the director or the designee of the director of the treatment facility that is serving the person a designated mental health professional stating that the person has substantially failed to comply. The statement shall be sworn to be true and may be based on the information and beliefs of the individuals filing the statement.

(2) Upon receipt of the joint statement of noncompliance, if the court finds by clear and convincing evidence that the person has substantially failed to comply with the administration of psychotropic medication under the treatment plan, the court may do all of the following:

(A) Authorize the person's guardian to consent to forcible administration by the treatment facility to the person, on an outpatient basis, of psychotropic medication ordered under the treatment plan.

(B) If the guardian consents to forcible administration of psychotropic medication as specified in sub. (a), authorize the sheriff or other law enforcement agency, in the county in which the person is found or in which it is believed that the person may be present, to take charge of and transport the person, for outpatient treatment, to an appropriate treatment facility.

(3) If the court authorizes the tribal police or other law enforcement agency to take charge of and transport the person as specified in par. (2)(B), a staff member of the treatment facility, tribal police department or other law agency enforcement and shall attempt to convince the person to comply voluntarily with the administration of psychotropic medication under the treatment plan.

(g) In appointing a guardian, the court shall take into consideration the opinions of the alleged incompetent and of the members of the family as to what is in the best interests of the proposed incompetent. However, the best interests of the proposed incompetent shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision. The court shall also consider potential conflicts of interest resulting from the prospective guardian's employment or other potential conflicts of interest. If the proposed incompetent has executed a power of attorney for health care the court shall give consideration the appointment of the health care agent for the individual as the individual's guardian.

(h) All court records pertinent to the finding of incompetency are closed but subject to access as determined by the court. The fact that a person has been found incompetent is accessible to any person who demonstrates to the court a need for that information.

(i) A finding of incompetency and appointment of a guardian under this subchapter is not grounds for involuntary protective placement.