Right to counsel

Generally

Individuals have the right to counsel regardless of indigency at hearings on petitions for protective services or protective placement if certain delineated factors are met.  In other matters, such as those related to transfer of the individual and annual reviews, the adult has the right to counsel if a request for counsel is made.  The right to counsel is classified as “qualified”, since certain factors must be present to trigger the appointment.

Hearings on petitions for protective services or protective placement

Right to counsel if certain factors present

For a hearing on a petition for protective services or protective placement under Wis. Stat. Ann. § 55.10, “the individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition.”  Wis. Stat. Ann. § 55.10(4)(a).  The court must require “representation by full legal counsel” if:  (1) the petition states that the individual is not competent to refuse psychotropic medication; (2) the individual requested counsel 72 hours before the hearing; (3) the guardian ad litem or any other person states that the individual is opposed to the petition; or (4) the court determines the interests of justice require it.  Wis. Stat. Ann. § 55.10(4)(a).  See also Wis. Stat. Ann. § 55.105(1) (individual must be referred “as soon as practicable to the state defender, who shall appoint counsel” without determination of indigency); Wis. Stat. Ann. § 55.107(1) (at or after conclusion of proceedings, court “may inquire as to the individual’s ability to reimburse the state for the costs of representation” by public defender and may order individual to reimburse the state).

Transfer of an individual under a protective placement order

Right to counsel upon request

If there is a petition for transfer of an individual in protective placement and the individual, the individual’s guardian ad litem, or anyone on the individual’s behalf requests counsel for the hearing on the petition, the court shall refer the individual to counsel as provided under Wis. Stat. Ann. § 55.105. Wis. Stat. Ann. § 55.15(7)(cm); see also Wis. Stat. Ann. § 55.105 (“In any situation under this chapter in which an adult individual has a right to be represented by legal counsel, the individual shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the individual under s. 977.08 without a determination of indigency.”).

Annual review of protective placement

Right to counsel upon request

During the annual review of a protective placement, the guardian ad litem must orally notify the individual and their guardian of their right to counsel, Wis. Stat. Ann. § 55.18(2)(b)(2), and, within 30 days after appointment, file with the court a written report indicating whether the “individual or the individual’s guardian requests or the guardian ad litem recommends that legal counsel be appointed for the individual.”  Wis. Stat. Ann. § 55.18(2)(f)(3).  The court must refer the individual to legal counsel if the court determines that legal counsel is necessary or if the guardian ad litem requests it.  Wis. Stat. Ann. § 55.18(3)(c).