55.08 Protective services or protective placement: standards.

(1) Protective placement. A court may under s. 55.12 order protective placement for an individual who meets all of the following standards:

(a) The individual has a primary need for residential care and custody.

(b) The individual is a minor who is not alleged to have a developmental disability and on whose behalf a petition for guardianship has been submitted, or is an adult who has been determined to be incompetent by a circuit court.

(c) As a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others. Serious harm may be evidenced by overt acts or acts of omission.

(d) The individual has a disability that is permanent or likely to be permanent.

(2) Protective services. A court may under s. 55.12 order protective services for an individual who meets all of the following standards:

(a) The individual has been determined to be incompetent by a circuit court or is a minor who is alleged to have a developmental disability and on whose behalf a petition for a guardianship has been submitted.

(b) As a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.

History: 2005 a. 264 ss. 119 to 122, 158; 2005 a. 387 s. 111; 2005 a. 388 s. 164; 2007 a. 45.

Under s. 55.17, the court may order a termination of a protective placement only if the standards in s. 55.08 (1) are no longer met; if they are met, the court must order a continuation, though it may change the placement if the person is not in the least restrictive setting. Nowhere does s. 55.17 provide that the court may terminate an order for protective placement if under s. 55.055 (1) the person could remain in the facility without a protective order. Jackson Co. Department of Health and Human Services v. Susan H. 2010 WI App 82, 326 Wis. 2d 246, 785 N.W.2d 677, 09-1997.

“Care" in sub. (1) (c) means that the person's incapacity to provide for his or her daily needs creates a substantial risk of serious harm to the person or others. The only reasonable construction of the “custody" alternative in sub. (1) (c) is that the person cannot provide for himself or herself the protection from abuse, financial exploitation, neglect, and self-neglect that the control and supervision by others can provide. Jackson Co. Department of Health and Human Services v. Susan H. 2010 WI App 82, 326 Wis. 2d 246, 785 N.W.2d 677, 09-1997.