Citation Numbers: 76 Op. Att'y Gen. 103
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 5/1/1987
Status: Precedential
Modified Date: 4/15/2017
JAMES J. DUVALL, District Attorney Buffalo County
You ask three questions relating to protective placements under chapter 55, Stats. Several of the issues you have raised are discussed in 65 Op. Att'y Gen. 49 (1976).
Your first question is as follows: "1. What is the definition of `residence' for venue purposes in Chapter 55?"
In my opinion, the definition of residence for venue and other purposes under chapter 55 is physical presence plus intent to remain in a place of fixed habitation.
Section
In addition, the definition of residence contained in section
In connection with your first inquiry, you also state the following:
Individual people have, of their own will, while competent and not pursuant to a court order, moved to certain counties which possess facilities which they find desirable. At times these people then become incompetent and proper subjects for Chapter 55. The counties with such facilities have taken a hard-line, stating that these persons retained "residency" in the county from which they originated despite their voluntary move and have refused Chapter 55 placement or services.
In 65 Op. Att'y Gen. at 52, it was stated that the definition of residency contained in what is now section
First, in enacting chapters 51 and 55, it seems likely that the Legislature did not contemplate the occurrence of the type of "facility shopping" which you describe. Second, both sections
Under the circumstances, it might have been preferable if the Legislature had used the term domicile, rather than residence, in chapters 51 and 55. See generally 61 Op. Att'y Gen. 245 (1972).Also see Estate of Daniels,
Although your factual description is very general in nature, given the definition of residence selected by the Legislature, in situations where the subject of the protective placement is physically present, intent to remain in a place of fixed habitation is the controlling factor in determining residence.Compare Miller v. Sovereign Camp W. O. W.,
In connection with your second question, you state that "[other] counties have maintained Chapter 55 actions based on `residence' in the venue section of Chapter 55, but then found them nonresidents for placement purposes and either placed them to the board of another county or placed them to their own board but assigned the cost of providing care to another county." You then pose the following question: "2. May the court placing the individual under Chapter 55 either place such individual through another county's board or, in the alternative, place the individual through its own [county's] board, but assign financial responsibility for such placement to another county?" *Page 106
It is my opinion that a court may place an individual through another county's board, but that any such placement order is not binding on another county and may be collaterally attacked if that county did not receive notice and an opportunity to be heard. However, it is also my opinion that the assignment of financial responsibility between counties by the court is not contemplated in protective placement proceedings.
Preliminarily, it should be noted that the venue provision contained in section
The court's final order may nevertheless have certain consequences with respect to the assignment of financial responsibility for non-emergency services. Section
In 65 Op. Att'y Gen. at 52, 53, it was stated:
In order to comply with the letter and spirit of sec. 51.002 and the entire mental health act as revised, information concerning the person's place of residence should be procured at the earliest possible time . . . .
. . . . *Page 107
In all commitments or admissions, every effort should be made to resolve differences of opinion relative to an applicant's place of residence as soon as possible.
If time is not of the essence and it appears certain that the subject of the protective placement petition possesses residence in another county, the preferred course of action would be to transfer venue to that county. Compare Shopper Advertiser,
In rare cases, a change of venue may not be feasible, and an inter-county dispute as to residency may have to be resolved prior to the issuance of the court's final order. Absent future legislative direction to the contrary, in such situations those counties which might potentially be affected by the court's residency finding should be provided with notice and an opportunity to be heard pursuant to section
To alleviate the potential problems posed by the last of these situations, it has been "suggest[ed] to the Department of Health and Social Services that a need exists for prompt legislative action to establish a method for resolving such disputes." 65 Op. Att'y Gen. at 53. To date, there has been no such legislation. The department *Page 108
also has not attempted to address this problem pursuant to its rulemaking powers under sections
On December 1, 1982, the department did, however, issue the enclosed policy memorandum concerning residency for the purpose of funding human services. The memorandum addresses many situations where residency disputes might arise and also provides for a mechanism for resolving such disputes. The provisions of this memorandum, which does not have the force of law, have been voluntarily followed by a number of counties. Your county may wish to do the same.
Your third question is as follows: "3. If the placing court has authority to assign financial responsibility, what county is responsible for the cost of placement, county of residence, county of legal settlement, or whatever county initially places the individual?"
Except in the case of emergency services, it is my opinion that the county of residence is responsible for the cost of placement.
Section
County liability. The county board of supervisors has the primary responsibility for the well-being, treatment and care of the mentally ill, developmentally disabled, alcoholic and other drug dependent citizens residing within its county and for ensuring that those individuals in need of such emergency services found within its county receive immediate emergency services. County liability for care and services purchased through or provided by a county department of community programs established under this section shall be based upon the client's county of residence except for emergency services for which liability shall be placed with the county in which the individual is found. For the purpose of establishing county liability, "emergency services" includes those services provided under the authority of s.
51.15 ,51.45 (11)(a) or (b) or (12),55.05 (4) or55.06 (11)(a) for not more than 72 hours.
Similarly, section
Since legal settlement determinations were not intended to play a part in the
DJH:FTC *Page 110
Fuentes v. Shevin , 92 S. Ct. 1983 ( 1972 )
Estate of Daniels , 53 Wis. 2d 611 ( 1972 )
Columbia County v. Board of Trustees of Wisconsin ... , 17 Wis. 2d 310 ( 1962 )
Opinion No. Oag 22-76, (1976) , 65 Op. Att'y Gen. 49 ( 1976 )
Opinion No. Oag 71-77, (1977) , 66 Op. Att'y Gen. 249 ( 1977 )
(1972) , 61 Op. Att'y Gen. 245 ( 1972 )