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Guardian's Role in Treatment Decisions

Treatment related rights:

  • Clients [and thus their guardians] have a right to participate in the planning of the individual's treatment and care. (ss. 51.61(1)(fm), Stats.)
  • Clients have a right to receive prompt and adequate treatment, habilitation or rehabilitation, and educational services appropriate for their condition. (ss. 51.61(1)(f), Stats. and HFS 94.08, Wis. Admin. Code)
  • Clients have a right to a humane psychological and physical environment, which includes specified rights to social, recreational and leisure time activities. (DHS 94.24(3), Wis. Admin. Code (exit DHS) - Patient Rights and Resolution of Patient Grievances)
  • Clients in ICFs/MR have the right to receive "a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services… that is directed toward - - (i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status. (42 Code of Federal Regulation ss. 483.440(a)(1))

Chapter 55 [Protective Service System] Declaration of Policy:

  • "The legislature recognizes that many citizens of the state, because of serious and persistent mental illness, degenerative brain disorder[s], developmental disabilities or like incapacities, are in need of protective services or protective placement. …the protective services or protective placement should, to the maximum degree of feasibility ... allow the individual the same rights as other citizens, and at the same time protect the individual from financial exploitation, abuse, neglect, and self-neglect. This chapter is designed to establish those protective services and protective placements and assure their availability to all persons when in need of them, and to place the least possible restriction on personal liberty and the exercise of constitutional rights consistent with due process and protection from abuse, financial exploitation, neglect and self-neglect." (ss. 55.001, Wis. Stats., emphasis added.) 
    • (Note: This policy is applicable to all clients receiving services through county agencies and contracted providers)

The guardian's duties:

  • A guardian needs to endeavor to secure any necessary care or services that are in the ward's best interests, and be involved as required pursuant to ss. 54.25(1)(b), Stats.
  • A guardian needs to be aware of and, when applicable, advocate for the client's rights under ss. 50.09 and ss. 51.61, Wis. Stats., and should advocate for the least possible restrictions on the ward's liberty and exercise of Constitutional and statutory rights, pursuant to ss. 54.18(2) and ss. 54.25(2)(d)3, Wis. Stats.
  • If the guardianship is individualized, with a number of the client's "capacities" identified by the court, then the guardian will have limited power over those areas, and will need to carefully review the court findings and determinations in the order appointing the guardian, and ensure that any rights retained by the individual are reviewed with the ward, and exercised by the ward. (ss. 54.25(2)(d), Wis. Stats.)

Questions for the guardian to consider in advocating for a client's care and treatment:

  • What is prompt and adequate treatment or services for the individual's conditions and needs?
  • How are the individual's treatment needs assessed? Are they prioritized? Are they re-assessed at appropriate intervals?
  • Has the guardian been encouraged to be involved in developing a treatment/service plan and viewed as a "team member" in other similar processes?
  • What kind of "functional assessments" may have been completed? Are they timely and relevant?
  • For a less verbal person, are the person's communication needs and styles being assessed, documented and facilitated as necessary?
  • What goals are identified as part of the "Individualized Service / Care Plan"?
  • Are there proper supports or approaches identified and put into place in order to help the person meet their treatment goals?
  • Has an "Essential Lifestyle Plan" or "Person-Centered Plan" been completed?
  • Are there regular team meetings where plans/goals are reviewed?

Last Updated: February 27, 2013