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The Individual-at-Risk Restraining Order statute (WI State Stat. 813.123)
provides a separate set of remedies that can be used to prevent abuse,
neglect and exploitation of individuals at risk and to facilitate
investigation and other responses. An individual at risk may file the
petition for a restraining order or someone else may file the petition on
behalf of the individual at risk. The court may order appointment of a
guardian ad litem for the individual at risk if needed [Wis. Stat. §
813.123(3)(b)]. If someone other than the individual at risk files the
petition for the temporary restraining order, the court must appoint a
guardian ad litem to investigate the situation and report to the court as
to whether issuance of the restraining order would be in the best
interests of the individual at risk. While there are no fees associated
with the filing of a petition for an IAR restraining order, there are no
provisions regarding payment of guardian ad litem fees.
Adults-at-Risk Restraining
Order and Injunction Checklist
Find more information about living wills and power of attorney forms here
 Power of Attorney for Finances
and Property - Updated September 2010
Revoking a Power of Attorney for Finances
Q: How do I revote a Power of Attorney for Finances?
A: Step by step instructions for revoking a power of attorney for
finances.
Out-of-State Powers of Attorney for Health Care
Q: Are out-of-state powers of attorney for health care effective
in Wisconsin? Can they be used
for nursing home admission?
A: In general, yes. Valid powers of attorney for health care created in
another state are recognized in Wisconsin as long as the authority granted
to the health care agent complies with Wisconsin law.
Q: Do the confidentiality requirements of the Family Care
program prohibit elderly benefit specialists and disability benefit
specialists from reporting abuse, neglect or financial exploitation?
A: No. Elderly Benefit Specialists are permissive
reporters under Wisconsin Stats. §§ 46.90(4)(ar) and 55.043(1m)(br).
Disability Benefit Specialists are permissive reporters under Wisconsin
Administrative Emergency Rule HFS 10.23(2)(d)2
Q: Are disability benefit specialists and elderly benefit
specialists limited required reporters?
A: No. Although some benefit specialists hold a
professional license as a registered nurse or social worker, they do not
see clients "in the course of the person's professional duties"
in their licensed capacity. They are not employed to work as a nurse or a
social worker; they are employed as a benefit specialist and are to serve
in that capacity when seeing clients. For more information:
Q: If a benefit specialist holds a professional license or
credential that requires reporting of abuse, neglect or financial
exploitation, are they limited required reporters?A: No. A
benefit specialist who is licensed as a social worker, nurse, counselor,
etc. is not serving in that capacity when seeing clients.
Benefit specialists are permissive reporters (see above).
Q: Who can receive information about a report of abuse,
neglect or exploitation to an elder adult/adult-at-risk? What provisions restrict information to
an alleged abuser? What information can be released to an alleged abuser?
What information can be released to the individual who reported the abuse,
neglect or exploitation?A: Wisconsin statutes 55.043 (6) and 46.90 (6) outline
the release of information about reports of abuse, neglect and financial
exploitation. The Chapter
55 Manual Chapter II, Section H provides some helpful information. This
memo
from DHS Legal Counsel may also be helpful.
Q: What does a county elder adults/adults-at-risk agency need
to do when it determines that the county cannot conduct an unbiased
response to a report of abuse, neglect or financial exploitation?
A: If a county determines that it needs to transfer an
investigation based on the judgment that another county's elder
adults/adults-at-risk agency would be better able to conduct an impartial
investigation, Wisconsin State Statute §55.043(1r)(a)2. and
§46.90(5)(a)2 require the county to notify the Department of Health
Services. To simplify this process, the state has developed a form
that can be e-mailed or faxed for immediate authorization. For more
information, see DLTC
Memo 2008-01.
A non-profit corporation that serves as a corporate guardian must be first
approved by the Department of Health Services Division of Quality
Assurance.
That criteria is established in administrative rule, DHS
85. The Division of Quality Assurance web site has more
information on corporate
guardians and a list of providers by county.
Q: What are the duties of a corporate guardian of the person
with regard to visits and other contact with the ward on an annual basis
(i.e., yearly)?
A: Pursuant to Wis. Stat. § 54.25(1)(b)(1), all guardians of
the person, corporate and non-corporate (e.g., family, friends), are
required to engage in "regular inspection, in person, of the ward's
condition, surroundings, and treatment." However, there are more
specific requirements for corporate guardians. Corporate guardians are
required to "have face-to-face contact with the ward at least once
every three months and more often as needed to meet the needs of the
ward." Corporate guardians must visit the ward in his or her
residence at least annually. This is a minimum standard imposed by DHS §
85.14(7).
Under certain circumstances depending on the ward's needs and desires,
compliance with the minimum standard by corporate guardians may be
insufficient as a matter of law. Contact once every three months may
itself be insufficient (e.g., the ward is being actively treated in an
acute care facility or is in some other unstable situation requiring more
frequent visits).
Contact may also be insufficient as the result of factors other than or
in combination with frequency. In addition to the frequency of contact,
the setting in which contact occurs and the quality of the contact between
the ward and the corporate guardian must be appropriate. It is important
that the setting in which contact occurs ensures the ward and the guardian
are able to focus on the ward's concerns and wishes without distraction.
This, in turn, will affect the quality of the contact.
What is appropriate will differ depending on the ward. However, in all
cases, the guardian is responsible for acting in the best interest of the
ward and for ensuring that the ward's needs and desires are met.
Complaints about corporate guardians are often brought by members of the
ward's family or the facility where the ward resides and questions about
the frequency and quality of contact have been raised by county APS
agencies with regard to requirements for agency contracts with corporate
guardian entities. If corporate guardians fail to act accordingly, the
guardian is at risk not only of being replaced in a particular case, but
of losing his or her status as a corporate guardian.
Questions or concerns about the actions of corporate guardians should
be directed to Dinh Tran in the Division of Quality Assurances. Mr. Tran
can be reached by email at dinh.tran@wi.gov or by phone at (608) 266-6646.
Q: Can Elder Abuse Funds be used for Durable Medical
Equipment?
A: Guidelines for Durable Medical Equipment and Elder Abuse Funding
Initial Criteria:
- The need for Durable Medical Equipment (DME) must be
associated with an actual report of abuse or neglect.
- DME cannot be purchased for prevention purposes.
If the initial criteria is met AND you can answer YES to all the
following questions, send a request to your Area Agency on Aging or to the
Department of Health Services for a decision. Include information about
where the report or complaint came from and who did the
investigation.
- Did the investigation identify a need for durable medical equipment
(i.e. lift chair, wheelchair)
- Was it directly related to the abuse or neglect allegation?
- Did you substantiate the finding?
- Is there no other funding source?
- Do you have a certificate of medical necessity from a physician?
Q: The federal Gramm-Leach-Bliley Act prohibits the release of “non-public
personal information” except “to protect against or prevent actual or
potential fraud, unauthorized transactions, claims and other liability”.
Does this exception apply to Elder Adults/Adults-at-Risk agency response
to financial exploitation of adults at risk of any age?
A: Wisconsin’s Chapter 46 language protecting elder adults at
risk from financial exploitation is identical to the Chapter 55 language
protecting younger adults at risk. Therefore, the clarification from the
federal government on release of information provides the same protections
to ALL adults at risk, regardless of their age. See SafetyNetworks #5,
July 2008 for more information about responding to reports of financial
exploitation.
For more information about responding to reports of financial
exploitation, see SafetyNetworks
#5. More information:
- Sample
MOU between elder adults/adults-at-risk agency and financial
institutions. (under SafetyNetworks #5)
- Sample financial information request
form (under SafetyNetworks #5)
Federal Law: The federal Right to Financial Privacy Act of 1978
does not apply to reports made to state or local authorities.
31 U.S.C. sec. 5318 (g) (3): Any financial institution that makes a
disclosure of any possible violation of law or regulations or a disclosure
pursuant to this subsection or any other authority, and any director,
officer, employee, or agent of such institution, shall not be liable to
any person under any law or regulation of the United States or any
constitution, law, or regulation of any State or political subdivisions
thereof, for such disclosure or for any failure to notify the person
involved in the transaction or any other person of such disclosure.
12 U.S.C. 3403 (c): Nothing in this title shall preclude any financial
institution, or any officer, employee or agent of a financial institution,
from notifying a Government authority that such institution or officer,
employee, or agent has information which may be relevant to a possible
violation of any statute or regulation. Such information may involve only
the name or other identifying information concerning any individual,
corporation or account involved in and the nature of any suspected illegal
activity… Any financial institution, or officer, employee, or agent
thereof…shall not be liable to the customer under any law or regulation
of the United States or any constitution, law or regulation of any State
or political subdivision thereof, for such disclosure of or any failure to
notify the customer of such disclosure.
In 1999 the Financial Services Modernization Act (often known as the
Gramm-Leach-Gliley Act) was passed. This Act contains strong privacy
protection and requires notification to customers before disclosures of
their records and an opportunity to disapprove the proposed disclosure.
However Section 502(e) of the Act contains exceptions to this privacy
protection. Three are relevant to state reporting programs:
- (e)(3)(B) permits disclosure "to protect against or prevent
actual or potential fraud, unauthorized transactions, claims, or other
liability."
- (e)(5) permits disclosure "to the extent
specifically permitted or required under other provisions of law…to law
enforcement agencies…or for an investigation on a matter related to
public safety."
- (e)(8) permits disclosure "to comply with
Federal, State, or local laws, rules, and other applicable legal
requirements."
Flow Chart of Elder Adults/Adults-at-Risk Process. See SafetyNetworks #9, February 2009
Q: Can a foreign (out-of-state) guardian admit a person to a
nursing home in Wisconsin?
A: Yes. Transfer
of Wisconsin Foreign Guardianship
Financial institutions operating in Wisconsin may release financial
information without violating privacy provisions under the Graham Leach
Bliley Act based on this legal
analysis (exit DHS) from federal financial regulators.
Q: With new guardianship laws in effect under Chapter 54,
what happens to pre-existing 880 guardianships?
A: Guardians retain the powers specified in the original
order but the new laws relating to their duties and standard of conduct
take effect. New court permission requirements are also in effect.
General Duties and Powers of Guardian under Chapter 54
All
guardians are required to do all of the following [54.18 (2)]:
-
Exercise the degree of care, diligence, and good faith when acting on
behalf of a ward that an ordinarily prudent person exercises in his or her
own affairs. § 54.18 (2) (a).
- Advocate for the ward's best
interests. § 54.18 (2) (b).
- Exhibit the utmost degree of
trustworthiness, loyalty, and fidelity in relation to the ward. § 54.18
(2) (c).
- Notify the court of any change of address of the guardian
or ward. § 54.18 (2) (d).
Chapter 54 includes a new section on rights retained by wards. [54.25
(2) (b)] Another new section limits the authority of a guardian to consent
to participation in experimental treatment [54.25 (2) (d) 2. d.]
Use this form when petitioning the court on involuntary administration of psychotropic drugs.
Q: Before the law changes in 2006, Act 187 governed
involuntary admissions to facilities. Do these requirements still exist?
A: Yes. The laws governing involuntary admissions into a
facility can now be found in Wisconsin
Statutes 50.06 (exit DHS).
Q: Who is a Limited Required Reporter? Are they
mandatory reporters?
A: Abuse, neglect and financial exploitation must be
reported by limited required reporters defined as:
- An employee of any entity that is licensed, certified, or approved
by or registered with the department.
- A health care provider, as defined in s. 155.01 (7).
- A social worker, professional counselor, or marriage and family
therapist certified under Ch. 457.
A limited required reporter must report if the adult at risk has
requested the person to make the report, or if the person has reasonable
cause to believe that any of the following situations exist:
- The elder adult at risk is at imminent risk of serious bodily harm,
death, sexual assault, or significant property loss and is unable to
make an informed judgment about whether to report the risk.
- An elder adult at risk other than the subject of the report is at
risk of serious bodily harm, death, sexual assault, or significant
property loss inflicted by a suspected perpetrator.
Limited Required Reporters are not mandatory reporters. Wisconsin law does not require reporting if the limited required
reporter does not think a report would be in the best interest of the
adult at risk or if religious/spiritual treatment or communications
restrict reporting. For more information, see:
If you have questions about Medicaid divestment or other public funding
fraud, you may wish to contact your local fraud
specialist.
List of Wisconsin Dementia Diagnostic Clinic (PDF, 19KB) locations and contact information. For more information about
Alzheimer's, contact your area Alzheimer's
Association Chapter.
Find your Board on Aging and Long-Term Care Regional Ombudsman program. The Board on Aging and Long Term Care provides service to persons age 60 and
older who are consumers of Wisconsin long term care programs. The Ombudsman
Program has authority to obtain access to all residents and tenants
of Wisconsin nursing homes, Community Based Residential Facilities (CBRF's),
Residential Care Apartment Complexes (RCAC"s), and persons served by the
Community Options Program and Family Care/Partnership programs.
Q: How does an elder adults/adult-at-risk agency use photographic
evidence? What documentation is needed?A: See SafetyNetworks
#1, June 2007 or find more information in this Power
Point presentation from the 2007 Adults at Risk Conference.
Emergency transfers and transfers to a more restrictive setting
require a Notice of Transfer of Protective Placement. Send Wisconsin Circuit Courts form GN-4340
to the Wisconsin Department of Health Services, Attn: Kevin Bailey, Office of
Legal Counsel, PO Box 7850, Madison WI 53707-7850
See
SafetyNetworks
#7, September 2008 for justification for maintaining Adult Protective
Services and Elder Adults/Adults-at-Risk agencies and functions in the public sector (county government).
Q: When should you refer/report to Elder Adults/Adults-at-Risk Agency?
A: For help with referral decision-making, see SafetyNetworks
#10, February 2009
Q: How to make a determination of the county of residency of persons
age 18 years and older in need of services under Chapters 46, 51, and 55.
A: See DHS Residency
Manual, January 2007
Q: What role do elder adults/adults-at-risk staff have in keeping
individuals in the community safe from unreasonable confinement and
restraint?
A: See SafetyNetworks #8, October 2008
Q: Is there a limit on the number of wards for an individual or
organization?
A: Yes, guardians of the person are limited to 5 wards: No
individual may have guardianship for more than 5 adult wards
who are unrelated to the individual, except as deemed appropriate by the
court - Wis. stats. 54.15 (9). However, the number of wards allowed
to a guardian of the estate is not addressed in the statutes. An
approved corporation or association is not limited in the number of adult
wards for which the corporation or association may accept appointment by a
court as guardian.
Q: Who can sign as a witness to a Power of Attorney for Health
Care? What nursing home staff can serve as a witness?A: Persons designated as a social worker or chaplain by
the facility qualify as a witness. Other employees do not. Section
155.10 (2), Wis. Stats. lays out the requirements for being a witness to a
POAHC. A witness cannot be:
(d) An individual who is a health care provider who is serving the
principal at the time of execution, an employee, other than a chaplain or
a social worker of the health care provider or an employee, other than a
chaplain or social worker, of an inpatient health care facility, in which
the principal is a patient.
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