Guardianship and Protective Placements: Watts Hearings

By John DiMotto

As a Milwaukee County Circuit Court judge, I am assigned to a split calendar. 75% of my caseload involves civil cases and the remaining 25% involves probate cases. The civil cases run the gamut from personal injury to contract to medical malpractice to foreclosures/confirmations to money judgment cases. The probate cases include estate cases, mental commitments, individual at risk injunction hearings and guardianship/protective placement cases. For the most part, the civil cases involve "monetary issues" whereas the probate cases involve "people issues."

When a person is placed under a guardianship and protective placement, that person is entitled to an annual review of the protective placement. This procedure was mandated by the Wisconsin Supreme Court in the Watts case. Every year the court must make certain that the person is in the least restrictive environment consistent with their condition.

Placements run the gamut from locked facilities like the Milwaukee Mental Health Complex - Hilltop to nursing homes to CBRFs to supervised apartments. It is up to the courts to make sure the person is appropriately placed.

A guardianship is a condition precedent to a protective placement. A guardianship is only appropriate when a person is incompetent as that term is set forth in Chapter 54. A protective placement is only appropriate when a person is incompetent and poses a danger to themselves or others as these terms are set forth in Chapter 55.

Most of these cases are resolved via summary hearings because it is undisputed that the guardianship should continue and the placement is appropriate. They are handled by our Probate Court Commissioner Patrice Baker. However, when the subject challenges the continuation of the guardianship and the protective placement, the case comes before a Probate judge like myself. An attorney is appointed for the individual and an independent psychological evaluation is usually ordered. Sometimes there is also a request for an independent comprehensive evaluation. The psychological evaluation addresses competency and the comprehensive evaluation addresses the placement. The matter is then set for a contested hearing. The burden is on the County to establish by clear and convincing evidence that both the guardianship and protective placement are warranted.

These are usually sad cases. Many of the subjects under the guardianship and protective placement just want to live on their own and think they are in the past when they could do so. We carefully look at all the circumstances of their life and are guided by the evidence.

I make a special effort to connect with the subject regardless of how debilitated the subject may be. These individuals want someone to listen to them and recognize them. I do that. The fact that a person suffers from dementia and needs a guardian and needs to be protectively placed does not mean they should be forgotten. We do not forget them.