Authority and Limitations of Guardians

Legal Role of Guardians:

• Ensure the client's physical needs are met re: food, shelter, clothing, etc.
• Ensure there is a service and treatment plan that is appropriate for the individual's needs
• Serve as an "advocate" for the ward re: care and services, personal needs, etc.
• Provide necessary consents. In addition to general consents, e.g. for the services or treatment plan [ISP], or ordinary and customary medical care, the guardian's written informed consent is usually required for: 
  • psychotropic medications (see below) and most other medical treatment/ procedures;
  • behavior support plans, including any "non-emergency" use of restrictive measures which may be used in the context of a positive behavior support plan;
  • filming, taping, and some releases of confidential treatment records

Standard for guardian actions and decision-making: (ss. 54.18(4), Wis. Stats.)

• Apply the good faith + best interests of ward + "ordinarily prudent person" standard
• Decisions do not have to be "perfect", but they do need to be well-reasoned.

Others with a role in planning and decision-making are the treatment team including:

• Program staff, e.g., county case manager or community support staff
• Residential provider, health care providers, vocational or day services staff
• Sometimes attorney(s), involved guardian ad litem, or the court with jurisdiction
• Someone others are, or might be expected to assume the role of "advocate
• Relatives, family and friends may also provide input (and advocacy), and make requests of providers and caregivers, but do not have decision-making authority other than as noted above.

Guardian duties:

• In exercising powers and duties, guardians are to place the least possible restrictions on the individual's personal liberty and exercise of constitutional and statutory rights, and promote the greatest possible integration of the individual into his or her community, consistent with meeting the individual's essential requirements for health and safety, and protection from abuse, exploitation, and neglect. (ss. 54.25(2)(d)3, Wis. Stats.)
• Guardianship orders after 12/1/06 must address the individual's capacities, and applicable rights to be retained and exercised by the individual. This may in some cases clarify the scope of a guardian's decision-making authority on behalf of the person under guardianship. (ss. 54.18, Wis. Stats.)
• Other Related Issues and Constitutional Rights:

Other Related Issues and Constitutional Rights:

There are various issues within a "gray area" including, but not limited to the following:

• Individual's preferences, e.g., of clothes, food, drink, use of items / possessions, etc.
• Lifestyle choices, recreation, leisure, or religious activities (freedom of expression)
• Friendships and association (visits/calls) with others (freedom of association)
• Community access, mobility, and community involvement (freedom of movement)

In these areas, individual rights and choices are to be respected and promoted as much as possible. The "Declaration of policy" for Ch. 55 states that services and placement are to place the least possible restrictions on personal liberty and exercise of constitutional rights, while protecting the individual from abuse, financial exploitation, neglect and self-neglect. For example, a guardian generally cannot unilaterally dictate who should be able to visit a person in a residential setting. Team assessment (including a "risk management" analysis) and documentation of any client rights limitation or denial is necessary.

Psychotropic Medications for Individuals Under Guardianship

A guardian can (unless limited by a Ch. 54 guardianship order) provide informed consent for voluntary psychotropic medications, if the medications are in the best interests of the ward. In deciding whether or not they are in the ward's best interests, the guardian must consider the invasiveness, the likely benefits, and the side effects of the psychotropic medication.

The guardian must have first made a good faith attempt to discuss with the ward the ward's voluntary receipt of the medications, and assess that the ward does not "protest" the medications. The definition of "protest" means for the ward to make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other "proffering" of voluntary receipt of medications. "Protest" does not mean a discernible negative response to a proposed method of administration of the meds. If a ward does protest (as defined above), a guardian may consent to involuntary administration of psychotropic medications only with a court order. ss. 54.25(2)(d)2.a, Wis. Stats.

Involuntary administration of psychotropic medication" means any of the following:

• Placing the medications in the individual's food or drink (to conceal them) with the knowledge that the individual protests (see above) receipt of the medications.
• Forcibly restraining an individual to enable administration of the medications.
• Requiring the individual to take meds as a condition of receiving privileges or benefits.

Involuntary administration of psychotropic medications can be court-ordered as a protective service only under ss. 55.14, stats. To obtain a court order, it must be shown that a physician prescribed it, that the individual is incompetent to refuse it, and one of the standards of the subsections in ss. 55.14, Wis. Stats., has been met.

Note: There are other requirements for the petition to involuntarily administer medications. The summary provided above is to give guardians and providers a general sense of how the new Ch. 54 and Ch. 55 laws view voluntary and involuntary medication and to notify them that there are new standards for obtaining a court order for administering them.

Last Updated: July 12, 2010