Report Title:
Social Services; Dependent Adult Protective Services
Description:
Amends dependent adult protective services law by: (1) deleting definition of "dependent adult"; (2) extending protections to persons between 18 and 74 years of age if they meet the definition of "vulnerable adult"; (3) adding definition of "elder" to extend protections to persons 75 years or older; (4) enabling the department of human services to investigate and the court to have jurisdiction when reason exists to believe that an elder or vulnerable adult has been abused or is threatened with imminent abuse; and (5) making conforming amendments for style, consistency, and clarity.
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THE SENATE |
S.B. NO. |
1184 |
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TWENTY-FOURTH LEGISLATURE, 2007 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to adult protection.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 346, part X, Hawaii Revised Statutes, is amended by amending the title to read as follows:
"[[]PART
X.[] DEPENDENT] ADULT PROTECTIVE SERVICES"
SECTION 2. Section 346-221, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-221[]] Purpose;
construction. The legislature recognizes that citizens of the State who
are elder [and], or mentally or physically [impaired] disabled,
constitute a significant and identifiable segment of the population and are
particularly subject to risks of abuse, neglect, and exploitation.
[The legislature also recognizes that it is
a person's dependency status, not age, which is often encountered in cases of
abuse, neglect, and exploitation.] While advanced age, or mental or
physical disability, alone is not sufficient reason to intervene in a
person's life, the legislature finds that many [elders] of these
citizens have become [subjects] victims of abuse [and],
neglect[.], and exploitation. Substantial public interest exists
to ensure that this segment of the population receives [protection.] protective
services.
The legislature declares that the State shall
develop and promote community services for the economic, social, and personal
well-being and protection of [its elder citizens who are mentally or
physically impaired.] this segment of the population.
In taking this action, the legislature intends to place the fewest possible restrictions on personal liberty and to permit the exercise of constitutional rights by adults consistent with protection from abuse, neglect, and exploitation."
SECTION 3. Section 346-222, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-222[]]
Definitions. For the purposes of this part:
"Abuse" means actual or imminent
physical injury, psychological abuse or neglect, sexual abuse, financial and
economic exploitation, negligent treatment, or maltreatment [as further
defined in this chapter].
Abuse occurs where:
(1) [Any dependent] An elder or a
vulnerable adult exhibits evidence of:
(A) Substantial or multiple skin bruising or any other internal bleeding;
(B) Any injury to skin causing substantial bleeding;
(C) Malnutrition;
(D) A burn or burns;
(E) Poisoning;
(F) The fracture of any bone;
(G) A subdural hematoma;
(H) Soft tissue swelling;
(I) Extreme physical pain; or
(J) Extreme mental distress [which] that
includes a consistent pattern of actions or verbalizations including threats,
insults, or harassment, that humiliates, provokes, intimidates, confuses, and
frightens the [dependent] elder or the vulnerable adult;
and the injury is not justifiably explained, or where the history given is at variance with the degree or type of injury, or circumstances indicate that the injury is not the product of an accidental occurrence;
(2) [Any dependent] An elder or a
vulnerable adult has been the victim of nonconsensual sexual contact or
conduct, including [but not limited to]:
(A) Sexual assault, molestation, sexual fondling, incest, prostitution;
(B) Obscene or pornographic photographing, filming, or depiction; or
(C) Other similar forms of sexual exploitation;
(3) [Any dependent] An elder or a
vulnerable adult is not provided in a timely manner with adequate food,
clothing, shelter, psychological care, physical care, medical care, or
supervision;
(4) [Any dependent] An elder or a
vulnerable adult is provided with a dangerous, harmful, or
detrimental [drugs] drug as defined by section 712-1240; [however,]
provided that this paragraph shall not apply [when such] to
drugs that are provided to [the dependent] an elder or a
vulnerable adult pursuant to the direction or prescription of a
practitioner[,] as defined in section 712-1240;
(5) There has been a failure to exercise that degree
of care toward [a dependent] an elder or a vulnerable adult [which]
that a reasonable person with the responsibility of a caregiver would
exercise, including[, but not limited to,] the failure to:
(A) Assist [in] with personal
hygiene;
(B) Provide necessary food, shelter, [and]
or clothing;
(C) Provide necessary health care, access to health care, or prescribed medication;
(D) Protect [a dependent adult] from
health and safety hazards; or
(E) Protect against acts of abuse by third parties;
(6) [Any dependent] An elder or a
vulnerable adult appears to lack [sufficient understanding or]
capacity [to make or communicate responsible decisions concerning the
dependent adult's person,] and appears to be exposed to a situation or
condition [which] that poses an imminent risk of death or risk of
serious physical harm; or
(7) There is financial and economic exploitation. [For
the purpose of this part, "financial and economic exploitation" means
the wrongful or negligent taking, withholding, misappropriation, or use of a
dependent adult's money, real property, or personal property. "Financial
and economic exploitation" can include but is not limited to:
(A) Breaches of fiduciary
relationships such as the misuse of a power of attorney or the abuse of
guardianship privileges, resulting in the unauthorized appropriation, sale, or
transfer of property;
(B) The unauthorized taking of
personal assets;
(C) The misappropriation, misuse, or
transfer of moneys belonging to the dependent adult from a personal or joint
account; or
(D) The intentional or negligent
failure to effectively use a dependent adult's income and assets for the
necessities required for the person's support and maintenance.]
The [exploitations] financial and
economic exploitation may involve coercion, manipulation, threats,
intimidation, misrepresentation, or exertion of undue influence.
"Capacity" means the ability to
understand and appreciate the nature and consequences of making decisions
concerning one's person or to communicate [such] these decisions.
"Court" means the family court [having
jurisdiction over a matter under this part].
"Department" means the department of human services and its authorized representatives.
["Dependent adult" means any adult
who, because of mental or physical impairment is dependent upon another person,
a care organization, or a care facility for personal health, safety, or
welfare.]
"Director" means the director of human services.
"Elder" means a person age seventy‑five or older.
"Emergency medical treatment" means [those
services] any service necessary to maintain a person's physical
health and without which there is a reasonable belief that the person will
suffer irreparable harm or death.
"Financial and economic exploitation" means the wrongful or negligent taking, withholding, appropriation, or use of an elder's or a vulnerable adult's money, real property, or personal property, including:
(A) A breach of fiduciary responsibility such as the misuse of a power of attorney or the abuse of guardianship privileges resulting in the unauthorized appropriation, sale, or transfer of property;
(B) The unauthorized taking of personal assets;
(C) The misappropriation, misuse, or transfer of moneys belonging to the elder or the vulnerable adult from a personal or joint account; or
(D) The negligent failure to effectively use an elder's or a vulnerable adult's income and assets for the necessities required for the elder's or vulnerable adult's support and maintenance.
"Imminent abuse" means that [there
exists] reasonable cause exists to believe that abuse will occur or
recur within the next ninety days.
"Party" means [those persons, care
organizations, or care facilities] a person, caregiver, or care facility
entitled to notice of proceedings under [sections] section 346-237
[and 346‑238], including any state department or agency that is
providing services and treatment to [a dependent] an elder or a
vulnerable adult [in accordance with] pursuant to a
protective services plan.
"Protective services plan" means a
specific written plan, prepared by the department, [setting] that
sets forth the specific services and treatment to be provided to [a
dependent] an elder or to a vulnerable adult.
"Vulnerable adult" means a person between the ages of eighteen and seventy‑four years whose ability to meet essential requirements for mental or physical health or safety, or to protect the person's self from abuse, neglect, or exploitation is substantially impaired because of a physical, mental, or other disability, or incapacity."
SECTION 4. Section 346-223, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-223[]] Jurisdiction;
venue. The family court shall have jurisdiction [in] over protective
proceedings under this part [concerning any dependent] that concern
an elder or a vulnerable adult who was or is found within the judicial
circuit at the time [such] the facts and circumstances occurred,
were discovered, or were reported to the department, which constitute the basis
for a finding that the [person has been] elder or the vulnerable
adult was abused [and] or is threatened with imminent abuse;
provided that the protective proceedings under this part [are] shall
not be considered exclusive and shall not preclude [the use of]
any other criminal, civil, or administrative remedy. The protective
proceedings under this part shall be held in the judicial circuit in which the
[dependent] elder or the vulnerable adult resides at the time of
the filing of the petition or in which the [dependent] elder or the
vulnerable adult has assets."
SECTION 5. Section 346-224, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-224[]]
Reports. (a) The following persons who, in the performance of their
professional or official duties, know or have reason to believe that [a
dependent] an elder or a vulnerable adult has been abused [and]
or is threatened with imminent abuse shall promptly report the matter
orally to the department [of human services]:
(1) Any licensed or registered professional of the
healing arts and any health-related occupation who examines, treats, or
provides other professional or specialized services to [dependent adults,]
an elder or a vulnerable adult, including [but not limited to,]
physicians, physicians in training, psychologists, dentists, nurses,
osteopathic physicians and surgeons, optometrists, chiropractors, podiatrists,
pharmacists, and other health-related professionals;
(2) Employees or officers of any public or private agency or institution providing social, medical, hospital or mental health services, including financial assistance;
(3) Employees or officers of any law enforcement
agency including[, but not limited to,] the courts, police departments,
correctional institutions, and parole or probation offices;
(4) Employees or officers of any adult residential
care home, adult day care center, or similar institution; [and]
(5) Medical examiners or coroners[.]; and
(6) Social workers.
(b) The initial oral report required by
subsection (a) shall be followed as soon as possible by a written report to the
department; provided that [where] if a police department is the
initiating agency, a written report shall not be required unless the police
department [has declined] declines to take further action and the
department informs the police department that [it] the department
intends to [pursue the matter of the orally reported incident] investigate
the oral report of abuse. [All written reports] A written report
shall contain [the]:
(1) The
name and address of the [dependent] elder or the vulnerable adult
[and], if known;
(2) The
name and address of the [person who or care organization or care
facility which] party who is alleged to have committed or been responsible
for the [dependent adult] abuse, if known; [the]
(3) The
nature and extent of the [dependent] elder's or the vulnerable
adult's injury or harm; and [any]
(4) Any
other information the reporter believes [might] may be helpful in
establishing the cause of the [dependent adult] abuse.
(c) This section shall not prohibit any [of
the persons enumerated in subsection (a)] person from reporting [incidents
which those persons have] an incident that the person has reason to
believe [involve] involves abuse [which] that came
to [their] the person's attention in [any] a
private or nonprofessional capacity.
(d) Any [other] person who has reason
to believe that [a dependent] an elder or a vulnerable adult has
been abused or is threatened with imminent abuse may report the matter orally
to the department.
(e) Any person who knowingly fails to report [as
required by this section] or who wilfully prevents another person from
reporting [pursuant to this section] shall be guilty of a petty
misdemeanor.
(f) The department shall maintain a central registry of reported cases."
SECTION 6. Section 346-225, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-225[]]
Confidentiality of reports. [All reports] A report made
pursuant to this part, including the identity of the reporting person[, as
well as] and all records of [such reports, are] the
report, is confidential and any person who makes an unauthorized disclosure
of a report or records of a report [under this part] shall be guilty of
a misdemeanor. The director [of human services] may adopt, amend, or
repeal rules, pursuant to chapter 91, to provide for the confidentiality of
reports and records, and for the authorized disclosure of reports and
records."
SECTION 7. Section 346-226, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-226[]] Access
to records. Records of [a dependent] an elder or a vulnerable
adult shall be obtained by the department or the [dependent] elder's
or the vulnerable adult's court-appointed guardian ad litem with the
written consent of the [dependent] elder or the vulnerable adult
or that person's representative, or by court order. Any person who reports to
the department under section 346-224, upon demand of the department, shall
provide all information related to the alleged incident of [dependent adult]
abuse or neglect, including[, but not limited to,] financial records and
medical reports, which were not included in the written report submitted
pursuant to section 346-224(b)."
SECTION 8. Section 346-227, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-227[]]
Investigation. Upon receiving a report that abuse of [a dependent] an
elder or a vulnerable adult has occurred [and] or is
imminent, the department shall cause an investigation to be commenced in
accordance with this part as the department deems appropriate."
SECTION 9. Section 346-229, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-229[]] Right of
entry. (a) An employee of the department engaged in an investigation
under this part shall be authorized to visit and communicate with the [dependent]
elder or the vulnerable adult who is the subject of the report. Any
person intentionally or knowingly obstructing or interfering with the
department's access to or communication with the [dependent] elder or
the vulnerable adult shall be guilty of a misdemeanor.
(b) Any employee of the department engaged in
an investigation under this part, having probable cause to believe that [a
dependent] an elder or a vulnerable adult will be physically injured
through abuse before a court order for entry can be obtained, without a
warrant, may enter upon the premises where the [dependent] elder or
the vulnerable adult may be found for the purpose of ascertaining that person's
welfare. Where a warrantless entry is authorized under this section, the
employee of the department may request the assistance of a police officer to
gain entrance."
SECTION 10. Section 346-230, Hawaii Revised Statutes, is amended to read as follows:
"§346-230 Termination of services. (a) The department shall act only with the consent of the victim, unless the department obtains court authorization to provide necessary services, as provided in section 346-231. Investigation and services provided under this part shall be immediately terminated if:
(1) The [dependent] elder or the vulnerable
adult has the capacity to consent and either does not consent or withdraws
consent to the receipt of protective services; [or]
(2) The department determines that protection is no longer needed under this part; or
(3) The court so orders.
(b) Upon the department's determination that
protective services are no longer needed, the [dependent] elder or
the vulnerable adult shall be referred to the agency responsible for
follow-up services. For the mentally ill, mentally retarded, or
developmentally disabled adult, the state agency designated to provide services
shall be the department of health."
SECTION 11. Section 346-231, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-231[]] Order
for immediate protection. (a) If the department believes that a person is
[a dependent] an elder or a vulnerable adult and it appears
probable that the [dependent] elder or the vulnerable adult has
been abused [and] or is threatened with imminent abuse unless
immediate action is taken; and the [dependent] elder or the
vulnerable adult consents, or if the [dependent] elder or the
vulnerable adult does not consent and there is probable cause to believe
that the [dependent] elder or the vulnerable adult lacks the
capacity to make decisions concerning the [dependent] elder's or the
vulnerable adult's person, the department shall seek an order for immediate
protection in accordance with this section.
(b) A finding of probable cause may be based in whole or in part upon hearsay evidence when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses who will be able to testify to facts from personal knowledge.
(c) Upon finding that the person is [a
dependent] an elder or a vulnerable adult and that there is probable
cause to believe that the [dependent] elder or the vulnerable
adult has been abused [and] or is threatened with imminent abuse
unless immediate action is taken; and the [dependent] elder or the
vulnerable adult consents, or if the [dependent] elder or the
vulnerable adult does not consent and there is probable cause to believe
that the [dependent] elder or the vulnerable adult lacks the
capacity to make decisions concerning the [dependent] elder's or the
vulnerable adult's person, the court shall issue an order for immediate
protection. This order may include[, but is not limited to]:
(1) An authorization for the department to transport the person to an appropriate medical or care facility;
(2) An authorization for medical examinations;
(3) An authorization for emergency medical treatment; and
(4) [Such] Any other matters as may
prevent imminent abuse, pending a hearing under section 346-232.
(d) The court may also make orders as may be appropriate to third persons, including temporary restraining orders, enjoining them from:
(1) Removing the [dependent] elder or the
vulnerable adult from the care or custody of another;
(2) Abusing the [dependent] elder or the vulnerable
adult;
(3) Living at the [dependent] elder's or
the vulnerable adult's residence;
(4) Contacting the [dependent] elder or the
vulnerable adult in person or by telephone;
(5) Selling, removing, or otherwise disposing of the
[dependent] elder's or the vulnerable adult's personal property;
(6) Withdrawing those funds from any bank, savings
and loan association, credit union, or other financial institution, or from a
stock account in which the [dependent] elder or the vulnerable
adult has an interest;
(7) Negotiating any instruments payable to the [dependent]
elder or the vulnerable adult;
(8) Selling, mortgaging, or otherwise encumbering any
interest that the [dependent] elder or the vulnerable adult has
in real property;
(9) Exercising any powers on behalf of the [dependent]
elder or the vulnerable adult by representatives of the department, any
court-appointed guardian or guardian ad litem or any official acting on [their]
the elder's or the vulnerable adult's behalf;
(10) Engaging in any other specified act [which,]
that, based upon the facts alleged, would constitute harm or present a
threat of imminent harm to the [dependent] elder or the vulnerable
adult or would cause the loss of the [dependent] elder's or the
vulnerable adult's property.
(e) Court orders under section 346-232 and
this section may be obtained upon oral or written application by the
department, without notice and without a hearing. Any oral application shall
be reduced to writing within twenty-four hours. The court may issue its order
orally, provided that it shall reduce the order to writing as soon as possible
thereafter and in any case not later than twenty-four hours after the court
received the written application. Certified copies of the application and
order shall be personally served upon the [dependent] elder or the
vulnerable adult and any other person or entity affected by the order
together with the notice of the order to show cause hearing in section 346-232.
(f) If a written order for immediate protection is issued, the department shall file a petition invoking the jurisdiction of the court under this part within twenty-four hours."
SECTION 12. Section 346-232, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-232[]] Order to
show cause hearing. (a) When a written order for immediate protection is
issued, the court shall hold a hearing on the application for immediate
protection, no later than seventy-two hours after issuance of the written order
excluding any Saturday or Sunday, requiring cause to be shown why the order or
orders should not continue. The department shall make arrangements to have the
[dependent] elder or the vulnerable adult attend the hearing or
show cause why the [dependent] elder or the vulnerable adult
cannot attend.
(b) When the court finds that there is
probable cause to believe that [a dependent] an elder or a vulnerable
adult has been abused [and] or is threatened with imminent abuse,
and the [dependent] elder or the vulnerable adult consents, or if
the [dependent] elder or the vulnerable adult does not consent
and the court finds that there is probable cause to believe that the [dependent]
elder or the vulnerable adult lacks the capacity to make decisions
concerning the [dependent] elder's or the vulnerable adult's
person, the court may continue or modify any order pending an adjudicatory
hearing on the petition. These orders may include orders for the [dependent]
elder's or the vulnerable adult's temporary placement and ordinary
medical care.
(c) The parties personally or through counsel
may stipulate to the entry or continuance of such orders as the court deems to
be in the best interest of the [dependent] elder or the vulnerable
adult, and the court shall set the case for an adjudicatory hearing as soon as it
is practical."
SECTION 13. Section 346-233, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-233[]]
Petition. (a) A petition invoking the jurisdiction of the court under
this part shall be entitled "In the matter of the protection of
____________________," and shall be verified.
(b) The petition shall set forth with specificity the:
(1) Reasons the person is considered to be [a
dependent] an elder or a vulnerable adult;
(2) Facts [which] that bring the [dependent]
elder or the vulnerable adult within this part;
(3) Name, birth date, sex, and residence address of
the [dependent] elder or the vulnerable adult;
(4) Names and addresses of any living persons, or entities required to be notified pursuant to section 346-237; and
(5) If appropriate, allegations describing any lack
of capacity of the [dependent] elder or the vulnerable
adult."
SECTION 14. Section 346-234, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-234[]] Guardian
ad litem; counsel. (a) In any case where the court has reason to believe
that [a dependent] an elder or a vulnerable adult or any other
party lacks the capacity to effectively make decisions concerning the party's
person, it may appoint a guardian ad litem to represent the interests of that
party throughout the pendency of proceedings under this part. The court shall
appoint counsel for the [dependent] elder or the vulnerable adult
at any time where it finds that the [dependent] elder or the
vulnerable adult requires a separate legal advocate and is unable to afford
private counsel.
(b) The court may order reasonable costs and
fees of the guardian ad litem to be paid by the party for whom the guardian ad
litem is appointed, if that party has sufficient financial resources to pay [such]
the costs and fees. The court may also order the appropriate parties to
pay or reimburse reasonable costs and fees of the guardian ad litem and counsel
appointed for the [dependent] elder or the vulnerable
adult."
SECTION 15. Section 346-236, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-236[]]
Permanent changes. Permanent changes in the living situation of an abused
[dependent] elder or an abused vulnerable adult shall not
ordinarily be made under authority of this part. If permanent changes in the
living situation or nonemergency medical treatment are necessary, the
appropriate guardianship, or civil commitment action shall be initiated
pursuant to applicable state law."
SECTION 16. Section 346-237, Hawaii Revised Statutes, is amended to read as follows:
"§346-237 Notice of proceedings. (a) After a petition has been filed, the matter shall be set for hearing and a notice of hearing shall be issued to all parties to the proceeding. The parties to the proceeding shall include:
(1) The [dependent] elder or the vulnerable
adult;
(2) Any caregiver or facility in which the [dependent]
elder or the vulnerable adult resides or is a patient;
(3) The spouse and adult children of the [dependent]
elder or the vulnerable adult;
(4) The parents of the [dependent] elder or
the vulnerable adult, unless waived by the court for good cause;
(5) Any guardian or conservator who may have been appointed; and
(6) Any other person or entity affected by the order for immediate protection.
(b) Where the name or whereabouts of a potential party is unknown, the court may require the petitioner to set forth the reasonable efforts the petitioner made to ascertain the party's name or whereabouts and why the petitioner has been unable to determine those facts."
SECTION 17. Section 346-238, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Service of the notice shall be made
by delivery of a copy thereof together with a certified copy of the petition to
each person or entity to be given notice either by personal service, by
certified mail, return receipt requested and addressed to the last known
address, by publication, or by other means authorized by the court. Upon a
showing of good cause, the court may waive notice to any party except the [dependent]
elder or the vulnerable adult."
SECTION 18. Section 346-239, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-239[]] Required
findings concerning postponed hearings. Except as otherwise provided, no
hearing shall be delayed upon the grounds that a party other than the [dependent]
elder or the vulnerable adult is not present at the hearing or has not
been served with a copy of the order for immediate protection or the petition,
where reasonable efforts have been made to effect service and it would be
detrimental to the [dependent] elder or the vulnerable adult to
postpone the proceedings until service can be made. Whenever a hearing is
delayed or postponed under this section, the court shall enter a finding that
it will not be detrimental to the [dependent] elder or the vulnerable
adult and shall also specify what additional measures shall be undertaken to
effect service."
SECTION 19. Section 346-240, Hawaii Revised Statutes, is amended by amending subsections (a) to (c) to read as follows:
"(a) When a petition has been filed, the
court shall set a return date hearing to be held within thirty days of the
filing of the petition. On the return date, the parties personally or through
counsel may stipulate to the entry or continuance of the orders as the court
deems to be in the best interests of the [dependent] elder or the
vulnerable adult, and the court shall set the case for an adjudicatory
hearing as soon as is practical.
(b) In an adjudicatory hearing, the court
shall determine whether the person is [a dependent] an elder or a
vulnerable adult, and whether the [dependent] elder or the
vulnerable adult has been abused [and] or is threatened with
imminent abuse, based upon a preponderance of the evidence. Evidence [which]
that is contained in a written report, study, or examination shall be
admissible, provided that the maker of the written report, study, or
examination be subject to direct and cross-examination upon demand when the
maker is reasonably available. A social worker employed by the department in
the area of adult protective services shall be presumed to be qualified to
testify as an expert in the field of protective services.
(c) If facts sufficient to sustain the
petition are established in court, or are stipulated to by all parties, the
court shall enter an order finding that the [dependent] elder or the
vulnerable adult has been abused [and] or threatened with
imminent abuse and shall state the grounds for the finding. The court shall
also make a finding concerning the capacity of the [dependent] elder
or the vulnerable adult to effectively make decisions concerning personal
needs or property [or both]. If the capacity of the [dependent] elder
or the vulnerable adult is at issue, the court shall require that the [dependent]
elder or the vulnerable adult be examined by a psychiatrist or other
physician who is skilled in evaluating the particular area in which the [dependent]
elder or the vulnerable adult is alleged to lack capacity before making
any finding that the [dependent] elder or the vulnerable adult
lacks capacity. If there is no finding that the [dependent] elder or
the vulnerable adult lacks capacity to make [such] personal needs
or property decisions and if the [dependent] elder or the
vulnerable adult does not give consent, the court shall not have authority
to proceed further and the court shall dismiss the case."
SECTION 20. Section 346-241, Hawaii Revised Statutes, is amended by amending subsections (b) to (d) to read as follows:
"(b) The proposed protective order may include any of the provisions set forth in section 346-231, and, in addition may include an order that:
(1) The person inflicting abuse on the [dependent]
elder or the vulnerable adult participate in counseling or therapy as
the court deems appropriate;
(2) Any party report to the department any violation of the protective order or protective services plan;
(3) The department make periodic home visits to the [dependent]
elder or the vulnerable adult; and
(4) The department monitor compliance with the order.
(c) The proposed protective services plan shall set forth the following:
(1) Specific services or treatment to be provided to
the [dependent] elder or the vulnerable adult and the specific
actions the parties shall take;
(2) Specific responsibilities that the parties shall assume;
(3) Period during which the services shall be provided;
(4) Dates by which the actions shall be completed;
(5) Specific consequences that may be reasonably anticipated to result from a party's failure to comply with any terms and conditions of the plan; and
(6) Steps that shall be necessary to terminate the court's jurisdiction.
(d) In preparing such a proposed protective
order, the department shall seek to impose the least restrictive limitation on
the freedom and liberties of the [dependent] elder or the vulnerable
adult. To the greatest extent possible, the [dependent] elder or the
vulnerable adult should be permitted to participate in decisions concerning
the [dependent] elder's or the vulnerable adult's person, or
property, or both."
SECTION 21. Section 346-242, Hawaii Revised Statutes, is amended to read as follows:
"§346-242 Review hearings. Except
for good cause shown, the court shall set each case for a review hearing not
later than six months after the date that a protective order and protective
services plan are ordered by the court. Thereafter, the court shall review the
matter at intervals of not longer than six months until the court's jurisdiction
has been terminated. The department and the guardian ad litem, if any, shall
submit a written report, with copies to the parties or their counsel, at least
fifteen days prior to the date set for each review. The report shall evaluate
whether the parties have complied with the terms and conditions of the
protective order and protective services plan; shall recommend any modification
to the order or plan; and shall recommend whether the court shall retain
jurisdiction or terminate the case. At each review, the court shall determine
whether the parties have complied with the terms and conditions of the order
and plan; enforce [such] sanctions for noncompliance as may be
appropriate; and order [such] revisions to the existing order or plan as
are in the best interests of the [dependent] elder or the vulnerable
adult. At each review, the court shall make an express finding as to whether
it shall retain jurisdiction or terminate the case, and, in each instance,
shall state the basis for its action."
SECTION 22. Section 346-247, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-247[]] Payment
for service or treatment provided to a party. Whenever service,
treatment, care, or support of [a dependent] an elder or a vulnerable
adult is provided under this part, the persons or legal entities who may be
legally obligated to pay for the service, treatment, care, or support of the [dependent
person,] elder or the vulnerable adult, may be ordered by the court
to pay the cost of the service, care, support, or treatment provided to the [dependent]
elder or the vulnerable adult in whole or in part, after notice and
hearing."
SECTION 23. Section 346-249, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-249[]]
Cooperation. Every public official or department shall render all
assistance and cooperation within the official's or department's power and [which]
that may further the purpose and objectives of this part. The
department and the court may seek the cooperation of organizations whose
objectives are to protect or aid [dependent] elders or vulnerable
adults."
SECTION 24. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 25. This Act shall take effect upon its approval.
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