Frequently Asked Questions (FAQ) about Guardianship of Adults with Developmental Disabilities in Dane County, Wisconsin
Guardians are important and necessary for many people in Dane County with developmental disabilities. Guardians have a key role in decision-making for their wards in many areas. Historically, guardians in Dane County have received little guidance on what the expectations are of them in their role. Guardians and agencies that support the ward often do not know how they can find more information about the many facets of guardianship. Sometimes conflicts arise between guardians and those who support their ward due to this lack of information.
This document was developed to answer frequently asked questions by adults with developmental disabilities, their relatives, providers of developmental disabilities services for teens and adults, legal people, and school personnel regarding guardianship. It is intended to help guardians and others understand how to assist the person under guardianship with supported decision-making, while preserving individual rights. The answers are based on the laws of Wisconsin and policies in Dane County that govern guardianship and protective placement.
TABLE OF CONTENTSGuardianship
Guardianship is a legal relationship created by a county court pursuant to Chapter 880 of the Wisconsin Statutes, between a person called the ward and another person(s) called the guardian. The purpose of guardianship is to provide informed consent on behalf of the ward and to advocate for the ward’s rights and best interests.
The Dane County Court (608-266-4331) can answer questions about guardianship and the court process. The Coalition of Wisconsin Aging Groups 608-224-0606 or 800-488-2596 or e-mail firstname.lastname@example.org operates the Guardianship Support Center which provides information about guardianship.
What laws govern guardianship
Chapter 880 (guardianship), Chapter 46 (social services), Chapter 51 (Alcohol and Other Drug Abuse/Developmental Disabilities/Mental Health), Chapter 55 (protective service system)
A person will need a guardian if he/she is declared legally incompetent to make certain decisions. However, guardianship should never be the only form of decision-making support. The ward should be included in any plan that addresses decision-making support. How involved a ward will become depends on his/her capabilities.
Who can be a guardian
Any competent adult (18 years or over) is eligible to serve as a guardian. Typically, this includes family members, friends or advocates. There generally is a conflict of interest for a paid support staff to assume the role of a guardian.
What are the alternatives to full guardianship
In Wisconsin, there are a number of ways to individualize decision-making supports. These options include: Limited Guardianship, Wisconsin Durable Power of Attorney (POA) for Health Care, Durable Power of Attorney for Finances, Representative Payee, Conservator, trusts, dual signature bank accounts, and Power of Attorney accounts. For more information on options call the Guardianship Support Center at 608-224-0606 or 800-488-2596, or email email@example.com. In addition, individualized planning is an excellent resource for exploring options to support individual decision-making and alternatives to guardianship.
What does the word ward mean?
Ward is a legal term for a person under guardianship. To be concise and for simplicity, we use the word ward in this document.
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What is Full Guardianship?
A full guardianship is when a Guardian of the Person or a Guardian of the Estate or both is appointed by the court, and the court does not limit the powers of the guardian in the area in which they are appointed. Full Guardianship is used only when it is not realistic for the ward to retain rights and duties because he/she is unable to care for his/her property or self. A ward may need only one type of guardianship or both. Similarly, a court may appoint different individuals as guardians for the two roles or the same individual for both roles.
What is Limited Guardianship?
In a Limited Guardianship, the ward retains more rights than in a Full Guardianship, except for the specific rights granted to the guardian. As with Full Guardianship, the ward is adjudicated incompetent. The Court is willing to consider tailoring guardianship to the abilities of a ward.
What is Guardianship of the Person?
The Guardian of the Person has responsibility for overseeing the care and living situation of the ward, as well as medical decision-making. The guardian’s role is to assist the ward in making decisions about the support services the ward will receive, where the ward will reside, and medical treatment for the ward. If the ward is unable to make decisions, even with assistance, the guardian of the person has the authority to make decisions for the ward.
What is Guardianship of the Estate?
The Court will order a Guardianship of the Estate for a ward who is unable to handle his/her property and financial obligations. The Guardianship of the Estate may be full, with the guardian exercising a great deal of authority over the ward’s financial and property matters, or a ward may be able to handle some of his/her finances or property.
What is Limited Guardianship of the Property?
In a Limited Guardianship of the Property, the guardian manages the ward’s assets that do not come from wages or earnings. The ward continues to have the right to receive and spend all wages and other earnings from employment and to make contracts for sums up to the greater of one month’s earnings or $300. Unless the Court specifically orders other limitations on the ward, there are no other limits to the ward’s rights.
What is a Standby Guardian?
The Standby Guardian is a person who has the same responsibilities as the appointed guardian, but only assumes responsibility if the appointed guardian dies, becomes incapacitated or resigns. It is best to designate a Standby Guardian at the initial guardianship hearing. At the time he/she is to assume responsibility, the Court must find the Standby Guardian acceptable, after which letters of guardianship will be issued.
How does a Standby Guardian become activated?
The Standby Guardian must notify the Court to activate the Standby Guardianship.
What is a Successor Guardian?
The Successor Guardian takes on responsibilities that were handled by the appointed guardian. If, at the initial guardianship hearing, a Standby Guardian was not appointed, a new proceeding to replace the appointed guardian must occur. The person appointed at this later time is the Successor Guardian.
What is Temporary Guardianship?
Temporary Guardianship is one that is limited to a specific period of time. By law, the Temporary Guardianship is limited to 60 days with the possibility of one extension of another 60 days if the Court allows it. Temporary Guardianship may avoid the more serious results of Full Guardianship. The statute allows the Court to appoint a Temporary Guardian when the welfare of a person requires immediate attention. If authorized and the ward doesn’t protest, the Temporary Guardian is then able to have the ward put in a hospital, nursing home or elsewhere for short-term care. This type of guardianship is used primarily for medical emergencies. Temporary Guardianship also can be limited in scope of authority. For example, the Temporary Guardian may be appointed for the sole purpose of consenting to medications during the ward’s hospital stay.
What is Co-Guardianship?
Two people are appointed as guardian for the same ward. Generally, Co-Guardianship of the ward requires the Co-Guardians to be spouses, and/or the parents of an adult with developmental disabilities. A potential pitfall of this type of guardianship is when Co-Guardians disagree about the care of the ward.
What is a Corporate Guardian?
A professional guardianship agency that is independent of any other services for the ward becomes the guardian. Corporate Guardians are regulated by the Wisconsin Department of Health and Family Services.
Who are Corporate Guardians in Dane County?
The Arc-Dane County 608-257-9728 or email firstname.lastname@example.org operates a corporate guardianship program.
What is the difference between a guardian and a Representative Payee for Supplemental Security Income (SSI) or Social Security Disability Income (SSDI)?
The Social Security Administration (SSA) can appoint a Representative Payee for someone who receives SSI or SSDI benefits if this would be in the person’s best interests due to mental or physical incapacity. Appointing a Representative Payee avoids a finding of legal incompetence and is limited to only handling the funds from the government benefits. The payee is to use the money for the person’s benefit and is accountable to the SSA on how the funds are used. In general, the Representative Payee helps a person pay his/her monthly bills, balance his/her checkbook, file taxes, do banking, assist with personal spending, and create a budget. The Guardian of the Estate is not required to be the Representative Payee. However, the Guardian of the Estate should serve as an advocate and auditor related to expenditures on behalf of the ward.
What is a Power of Attorney (POA) for Health Care and how does it affect guardianship?
The POA is a document that a person can complete while they are still competent regarding future medical treatment and care. In the document, he/she names another person to make healthcare decisions when and if he/she becomes incapable of making his/her own decisions. He/she can also direct the types of decisions made, including short-term admission to a nursing home, end of life healthcare decisions, types of medications and other treatments to be administered. This is a formal document, which requires witnesses and certain content spelled out in the Wisconsin Statutes. A person under guardianship (full or of the person) does not generally need a POA for Healthcare. The POA for Healthcare supercedes the Guardian of the Person for healthcare decisions when the Court has ordered that the POA should remain in full force and effect. Standard forms and instructions for POA for Healthcare may be obtained from the Elder Law Center of the Coalition of Wisconsin Aging Groups (608-224-0606 or 800-488-2596, or email email@example.com.
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What is incompetence?
The legal standard for incompetence is when the Court finds that a person is substantially incapable of managing his/her property or caring for him/herself because of mental impairment caused by the aging process, or because of a developmental disability, or because of conditions, like mental illness or alcoholism, having similar effects. When a person is incompetent, he/she does not have the ability to understand the consequences of his/her decisions and actions, and make choices based on available information.
Who decides if a person is incompetent?
A medical doctor (M.D.) or a Ph.D. level psychologist must conduct an evaluation of a person’s competence. The Court ultimately determines the individual’s incompetence. An M.D. or psychologist who knows the person well should make the recommendation. A clinician who has experience working with people with developmental disabilities will be in a better position to know what the individual’s capacity is to care for himself/herself and to make decisions with available supports.
Can a person regain competency after guardianship?
Yes, the individual, or any interested party, may request that the Court reconsider the person’s competency to make his/her own decisions about his/her life. The ward should seek an M.D. or Ph.D. level psychologist to re-evaluate his/her competence. In Dane County, the Court makes the determination of competence and incompetence.
If the ward is found incompetent in Court, does it mean that he/she is incompetent to stand trial in a criminal case?
No, a separate standard for competence is used in a criminal trial.
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How does a person apply for guardianship?
A person applies for guardianship by filing a petition with the Dane County Court. The contents of the petition are described in 880.07 of the Wisconsin Statutes.
What does the guardianship process entail?
Once the petition has been brought before the Court, the judge or commissioner will appoint a Guardian Ad Litem (GAL) to review the case and to make recommendations to the Probate Court. The GAL must inform the proposed ward of his/her right to contest the petition. The petitioner or his attorney must notify all interested parties, such as family members and service providers of the guardianship petition and court hearing. The Court will make a ruling on the guardianship petition at the hearing.
What rights does the proposed ward have during the guardianship process?
The proposed ward has the right to his/her own attorney if contesting the petition, to have an independent medical examination, to refuse to cooperate with the petitioner’s doctor unless court ordered, to call and cross examine witnesses, and to have a jury trial.
Who is a Guardian Ad Litem (GAL)?
A GAL is an attorney appointed by the Court to make recommendation to the Court regarding the appropriateness of the proposed guardianship and guardian. The GAL is responsible for advocating for what is in the best interest of the ward during the Court proceedings, but they do not have to agree with the ward's wishes or opinions.
Are there costs associated with guardianship?
Yes, the proposed ward and petitioner may incur costs for filing fees, hiring an attorney, a Guardian Ad Litem, and a doctor’s or psychologist’s evaluation.
Is an attorney necessary to apply for guardianship?
An attorney is recommended, although not legally required.
Can a person who lives out of Dane County be appointed guardian?
A person living outside of Dane County could be appointed guardian, although that person would need to assure the Court that he/she will remain involved and be available for important decision-making on behalf of the ward.
How can the ward protest the initial or ongoing guardianship?
The ward can at any time during or after the initial guardianship proceeding protest any part of the guardianship by requesting a review by the Court. The Court will usually appoint or reappoint a Guardian Ad Litem to meet with the ward and make recommendations to the Court.
How can a person protest the need for guardianship or the appointment of a specific guardian?
Anyone can protest or raise concerns by contacting the Court. The Court generally prefers that these concerns be stated in a letter to the Court. The right to participate in the guardianship hearing is at the discretion of the Court.
How can a Limited Guardianship be tailored to the individual needs of the ward?
The guardianship petition allows for guardianship to be limited so the ward retains all rights except specific rights given to the guardian. As with Full Guardianship the ward is adjudicated incompetent.
How does a person bring concerns about a guardianship before the Court?
Anyone may request the Court review specific issues or concerns about a guardianship and/or the actions of a guardian. Any concerns should be put in writing to the specific county probate court where the guardianship was originally granted. This may be a different county than the one in which the ward currently resides. If people want a more formal route, visit with APS where concerns will be shared with the guardian.
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What is protective placement?
Protective placement is when Dane County Human Services places a ward in a specific setting for the primary purpose of providing care and custody. The placement must be in the least restrictive environment necessary to provide the care and custody. Dane County Human Services, a provider agency, a guardian, or any interested party may petition the Court to provide protective placement for an individual who: 1) Has a primary need for residential care and custody, and; 2) Has been determined to be incompetent, and; 3) Has a disability that is permanent or likely to become permanent, and; 4) As a result of developmental disabilities, infirmities of aging, chronic mental illness or other like incapacity, is so totally incapable of providing for his/her own care and custody as to create a substantial risk of serious harm to self or others.
Is everyone under guardianship protectively placed?
No, protective placement is a separate issue from guardianship. However, protective placement cannot be ordered without a finding of incompetence and the appointment of a guardian of the person.
What is a WATTS review?
A WATTS review is an active yearly review performed by the Court making the protective placement. This annual review, named after the WATTS Wisconsin Supreme Court decision, evaluates whether the protective placement continues to be appropriate and is the least restrictive environment for the ward given his/her current needs.
What is the role of Adult Protective Services (APS) in protective placement cases?
An APS social worker is assigned to each protective placement case to complete a multi-disciplinary evaluation and court report. The social worker speaks with the proposed ward, service providers, the proposed guardian and stand-by guardian, family members and interested parties, and makes recommendations to the Court regarding the need for protective placement. APS is involved in guardianship-only cases where the county is the petitioner.
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What rights does the ward retain under guardianship?
Wards under guardianship retain basic constitutional and civil rights, and also have client rights. Limitations or restrictions on these rights can occur when there is a well-documented significant risk of harm to self or others.
What rights can a ward retain in Limited Guardianship?
Rights can be retained (or restored) with a Court finding of limited incompetence. These include the right to contract, vote, marry, obtain a motor vehicle operator’s license or other state license, and hold or convey property.
What rights are lost with Full Guardianship that can be regained later?
At any time a ward or other interested party may petition the Court to request a review and re-instatement of certain rights. The Court will likely appoint a GAL to review the situation and make recommendations to the Court.
Can a person challenge a guardianship?
Any interested party may challenge a guardianship and/or ask the Court to review a guardianship. The Court will likely appoint a GAL to review the situation and make recommendations to the Court.
What are the rights of a ward regarding sexual expression?
The central issue is the ward’s capacity to appraise his/her personal and sexual conduct. If the ward’s capacity in this area is subject to debate or controversy, an assessment should be made, possibly involving a therapist. A guardian is part of the support team and should provide input. However, a guardian cannot consent to sexual activity on behalf of the ward, nor unreasonably attempt to prevent all sexual expression. This is a complex issue, requiring careful consideration and discussion.
Can a guardian require service providers to restrict the food intake or comply with dietary restrictions of the ward?
A ward has the right to express his/her choices in what he/she eats. A plan to encourage and support healthy choices does not mean others can forcibly deny food to a ward. An exception may be a situation where significant and imminent harm to the ward or others could occur. In this case, a treatment plan should be developed by the support team, which includes the guardian. The plan should be designed to help the ward understand the consequences of certain food choices. The use of any restrictive interventions should be documented and reviewed regularly.
Can a person under guardianship sign a rental lease, or any other legal contract?
If Guardianship of the Person and Estate has been granted, the ward should not sign any legal contracts. It is possible under Limited Guardianship for the ward to retain certain rights if the Court has so ordered. If those rights aren’t retained by the ward, the guardian should be asked to sign the lease or contract.
Who supports the ward in making decisions?
Guardians, advocates, families, support staff, case managers/brokers, and friends all have a role in supporting and advocating for the ward’s interests and assisting him/her with decision-making.
How is self-determination affected by guardianship?
For an excellent overview of this topic, please see the following web site: http://www.wcdd.org/Publications/making_a_difference.PDF (Specifically the last page: "Guiding Principles")
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What is the standard of care for a guardian?
A guardian must be able to demonstrate that his/her decisions regarding a ward are in the ward’s best interest and made in good faith. In providing informed consent for treatment, a guardian must show prudence in reviewing any relevant “risk and benefit” information related to treatment, medications, and medical interventions. Informed consent decisions need to be made on a timely basis.
What is the guardian’s role on the support team?
The guardian should play a key and active role on the support team and participate in finding solutions and compromises when differences occur. A guardian should be supportive of the ward’s role on the team and help the team understand the desires and choices of the ward. The Guardian of the Person should leave a contact number with the support agency or team when he/she goes out of town so he/she can be reached in the event of an emergency.
Does a Guardian of the Estate incur expenses of the ward?
No, expenses of the ward are paid out of his/her income and/or government benefits.
What are the rights of the ward to spend his/her own money?
A ward should have control over his/her own finances to the extent of his/her abilities. Generally, government benefit checks and work income are used to pay monthly living expenses within the scope of the county order. A Guardian of the Estate needs to ensure the ward is receiving his/her personal spending money each month to use at the ward’s discretion. If the guardian is also the Guardian of the Person, he/she advocates for the personal needs of the ward.
What is the role of the guardian in estate planning for the ward?
The guardian should have a role in estate planning. The guardian can seek legal advice about estate planning on the ward’s behalf so that the ward can take advantage of areas allowed by law or allowed only with court approval.
Whose responsibility is it to set up a burial trust and who pays for it?
Burial trusts are not mandatory. If one is desired and funds are available, the Guardian of the Estate or Representative Payee is responsible for creating the burial trust and paying for it out of the ward’s funds. It is considered exempt as an asset by the Social Security Administration.
Can the guardian be involved in roommate matches for the ward?
In a roommate match for the ward, the Guardian of the Person needs to be consulted. The ward’s choice should be encouraged and strongly considered. A guardian and a residential provider might not always agree on the potential roommate. A trial living period could be used to see if the ward and the potential roommate are compatible. Most people with developmental disabilities served by Dane County Adult Community Services are supported in two person households.
What is the role of the guardian in medication and healthcare issues?
Medical providers require informed consent from the Guardian of the Person before medication or other healthcare procedures, such as surgery, are administered. Medical providers are required to provide treatment for emergencies and life threatening medical situations with or without guardian approval. This is the same standard that applies to a person who does not have a guardian and is unable to give consent. The Guardian of the Person should be available for routine and acute healthcare decisions as they arise, and should leave a contact number with the provider agency or team when he/she goes out of town so he/she can be reached in event of an emergency.
What is the role of the guardian in supporting the ward’s vacations or travels?
A guardian should support the ward’s desire to take a vacation or travel. A guardian must be notified when the travel will happen and should ensure that adequate support is in place for the ward prior to leaving.
Whom should a guardian contact if the ward is a victim of a crime?
If it is an emergency, the guardian should call 911. The guardian should in all crime cases inform the Abuse and Neglect Contact of the crime at Dane County Adult Community Services (608-242-6200).
Whom should a guardian contact if the ward has committed a crime?
If there is imminent danger, the guardian should call 911. It is best for the guardian to work with the criminal justice system to ensure that the ward receives due process under the laws. For consultation, contact Dane County Adult Community Services (608-242-6200).
What is the role of the guardian in planning for the ward’s participation in the Community Options Program (COP) and Medical Assistance (MA) waiver programs (e.g.: CIP 1-A)?
The guardian must review and approve both initial and annual plans for the COP and MA waiver programs.
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Under what circumstances must the provider involve the guardian in the daily life of the ward?
A provider must involve the guardian whenever an informed consent is required. Communication between a provider and the guardian is important to assure that the ward‘s best interests are being met. A provider and the guardian should agree upon the extent of guardian notification and involvement in the daily life of the ward.
How does a provider help the ward make decisions?
A provider should take the time necessary to understand and respect the needs and wishes of the ward. A provider has a responsibility to assure that the ward is aware of options and opportunities available to him/her. The ward should be helped to understand to the best of his/her ability the consequences of any given decision.
How can a provider find out if a parent or other interested party is seeking guardianship of a person?
To find out if a guardianship petition has been filed, contact Dane County Court or Adult Protective Services (608-242-6200). A request to the Court must be in writing. Requests to APS may be made over the phone. In either case the person making the request may be asked to provide a reason for needing this information. Guardianship files are not readily available to the public.
How can a provider find out the type of guardianship of the ward or if the ward is protectively placed?
To find out the type of guardianship or information on the protective placement status of the ward, contact Dane County Court (608-266-4331) or Adult Protective Services (608-242-6200). The provider may be required to demonstrate the need for such information. Guardianship files are not readily available to the public.
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Usually, a provider and the team of people supporting the ward are in close contact with the guardian. Consensus between a provider and the guardian should be the general rule. When disagreements are difficult to resolve, the parties could bring in an impartial mediator, ask the Client Rights Specialist or Ombudsman at the County to mediate, or hold a meeting of the service team, broker, ward, and guardian to resolve the differences. In some cases, our “Experts on Call” (see end of website) would offer an opinion on the issue. In rare circumstances where informal means have not been successful, contact Adult Protective Services (608-242-6200) for assistance. A guardian must provide informed consent on a timely basis whenever informed consent is required.
What if the guardian and provider disagree about how to spend the ward’s disposable income?
Those on the support team, which will include the Guardian of the Estate and the ward, need to express their views on how and why the ward’s income should be spent. (Refer to above answer for ideas on resolving disagreements.)
What if the guardian and provider disagree about medications for the ward?
The guardian and provider should research information about medication for the ward, including potential benefits and risks. They should also obtain the medical provider’s opinion and reasons for prescribing the medication. If necessary, the guardian and provider could get a second opinion from another medical provider. Using this information, the guardian and provider should attempt to resolve the disagreement in the best interest of the ward. In all cases, the guardian and provider should correctly administer the prescribed medication until a resolution can be reached.
If the guardian is perceived to be unreasonable, unsafe, or not acting in the best interest of the ward, what can a provider do?
The provider should attempt to talk with the guardian to resolve the concerns. The provider needs to maintain written documentation of the concerns and attempts to resolve the issues. If the concerns remain unresolved, the provider should consult with Adult Protective Services (608-242-6200).
What can the provider do if the guardian is unavailable or non-responsive to the needs of the ward?
If, after good faith attempts have been exhausted to locate and communicate with the guardian, the provider should contact Adult Protective Services (608-242-6200) with written documentation of concerns and attempts to locate and communicate with the guardian.
Who should be called if there are concerns about a guardianship?
Consultation may be sought from Adult Protective Services (608-242-6200), from the Court (608-266-4331), or by contacting the “Experts on Call” (see bottom of this page.)
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Who can I call if I have questions about Individual Rights? Contact Girard Gierl, J. D. at 608-266-3102, or email the "Clients Rights Office" at firstname.lastname@example.org.
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Guardianship of Adults: A Decision-Making Guide for Family Members, Friends, and Advocates, Roy Froemming, J. D., Betsy Abramson, J. D. (2000)
Making a Difference: Thinking About Decision-Making Support in the Transition Process, Roy Froemming, J.D., (2002).
The Basics of Guardianship, Ellen Henningsen, J.D., The Elder Law Center of the Coalition of Aging Groups, (n.d.). The Good Guardian: A Guide for Guardians in Wisconsin, Diane Herman, Helen Marks Dicks, J.D., Betsy Abramson J.D., The Center for Public Representation, (2001).
Guardianship, Dianne Greenley, J.D., Wisconsin Coalition for Advocacy, (n.d.) One Step Ahead: Resource planning for people with disabilities who rely on Supplemental Security Income and Medical Assistance, Roy Froemming, J.D., Wisconsin Council on Developmental Disabilities, (1997).
Provisions: Sample language for Supplemental Needs Trusts, Roy Froemming, J.D., Wisconsin Council on Developmental Disabilities, (1998).
If you wish to receive a copy of any of the above documents, please contact 608/265-9440 or email: email@example.com.
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Guardianship FAQs Workgroup
We are grateful for the hard work and dedication of a workgroup made up of agency staff, legal professionals and family members/guardians. Two members of the workgroup, Christine White and Pat Wilson, spent many hours proofreading and revising to make the document better organized and clearer. Members of the workgroup are listed at the end this document along with a bibliography of the source material we used in developing the document. Finally, we wish to acknowledge our appreciation to Dane County Court Commissioner David Flesch and to Probate Court Administrator Susan Podebradsky for their thorough review and comments on earlier drafts of the FAQ’s.
Maya Fairchild, Dane County Developmental Disability Services
Atty. Roy Froemming, Private Practice
Atty. Gerard Gierl, Dept of Health and Family Services (DHFS)
Atty. Ellen Henningsen, Coalition of Wisconsin Aging Groups (CWAG)
Jim Hessler, Waisman Center
Ken Hobbs, The Arc-Dane County
Duncan McNelly, Waisman Center
Amy Melton-White, Rise-Up
Martha Mock, Waisman Center, Wisconsin Health & Ready to Work Project
Amy Schmook, Dane County Adult Protective Services
Christine White, Access to Independence
Pat Wilson, Guardian and Support Broker