Report Title:
Social Services; Dependent Adult Protective Services
Description:
Expands the adult protective services law by extending protections to vulnerable adults. Enables the Department of Human Services to investigate and the court to have jurisdiction when reason exists to believe that a vulnerable adult has been abused or is threatened with imminent abuse. Effective July 1, 2112. (SB1184 HD2)
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THE SENATE |
S.B. NO. |
1184 |
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TWENTY-FOURTH LEGISLATURE, 2007 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 2 |
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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. Section 346-45, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The court shall maintain records of
all adult protective proceedings under this chapter. All court documents and
records pertaining to the action or proceeding shall be subject to inspection
only by the [dependent] vulnerable adult, and his or her
guardian, conservator, their respective attorneys, the guardian ad litem of the
dependent adult, and the other parties and their respective attorneys or
guardians ad litem."
SECTION 2. Chapter 346, part X, Hawaii Revised Statutes, is amended by amending the title to read as follows:
"[[]PART
X.[] DEPENDENT] ADULT PROTECTIVE SERVICES"
SECTION 3. 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 mentally or physically impaired] or
vulnerable constitute a significant and identifiable segment of the
population and are particularly subject to risks of abuse, neglect, and
exploitation.
The legislature recognizes that Hawaii has a history of protecting its kupuna starting with the first law proclaimed by
Kamehameha the Great, ke kanawai mamalahoe, or the law of the splintered
paddle, now embodied in the state constitution. The legislature [also]
further recognizes that it is a person's [dependency status,] vulnerability,
not necessarily age, which is often encountered in cases of abuse,
neglect, and exploitation. While advanced age alone is not sufficient reason
to intervene in a person's life, the legislature finds that many elders have
become subjects 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 protective and community services for the economic,
social, and personal well-being and protection of its elder citizens who [are
mentally or physically impaired.] may be vulnerable to abuse, neglect,
and exploitation.
In taking this action, the legislature intends to protect elder and vulnerable adults and 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 4. 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 does not include and shall not be based
solely on physical, psychological, or financial conditions that result when a
vulnerable adult seeks, or when a caregiver provides or permits to be provided,
treatment with the express consent or in accordance with the religious or
spiritual practice of the vulnerable adult.
Abuse occurs where:
(1) [Any dependent] 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] 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] 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, or prostitution;
(B) Obscene or pornographic photographing, filming, or depiction; or
(C) Other similar forms of sexual exploitation;
(3) [Any dependent] A vulnerable adult
is not provided in a timely manner with adequate food, clothing, shelter,
psychological care, physical care, [medical] health care, or
supervision;
(4) [Any dependent] 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] 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] 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] 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.
"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 a vulnerable adult's money, real property, or personal property, including:
(1) 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;
(2) The unauthorized taking of personal assets;
(3) The misappropriation, misuse, or transfer of moneys belonging to the vulnerable adult from a personal or joint account; or
(4) The negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for the 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] 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]
vulnerable adult.
"Vulnerable adult" means a person eighteen-years-of-age or older 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 5. 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 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] 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]
vulnerable adult resides at the time of the filing of the petition or in
which the [dependent] vulnerable adult has assets."
SECTION 6. 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]
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,]
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] 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] 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] 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.
(g) Nothing in this section shall require a member of the clergy to report communications that are protected under rule 506 of chapter 626."
SECTION 7. 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 8. Section 346-226, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-226[]]
Access to records. Records of a [dependent] vulnerable
adult shall be obtained by the department or the [dependent] vulnerable
adult's court-appointed guardian ad litem with the written consent of the [dependent]
vulnerable adult or [that person's] the vulnerable adult'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 9. Section 346-227, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-227[]]
Investigation. Upon receiving a report that abuse of a [dependent] 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 10. 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] 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] 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]
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] 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 11. 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] 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] 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 12. Section 346-231, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) If the department believes
that a person is a [dependent] vulnerable adult and it appears
probable that the [dependent] vulnerable adult has been abused [and]
or is threatened with imminent abuse unless immediate action is taken;
and the [dependent] vulnerable adult consents, or if the [dependent]
vulnerable adult does not consent and there is probable cause to believe
that the [dependent] vulnerable adult lacks the capacity to make
decisions concerning the [dependent] vulnerable adult's person,
the department shall seek an order for immediate protection in accordance with
this section."
2. By amending subsections (c), (d), and (e) to read:
"(c) Upon finding that the person is a [dependent]
vulnerable adult and that there is probable cause to believe that the [dependent]
vulnerable adult has been abused [and] or is threatened
with imminent abuse unless immediate action is taken; and the [dependent]
vulnerable adult consents, or if the [dependent] vulnerable
adult does not consent and there is probable cause to believe that the [dependent]
vulnerable adult lacks the capacity to make decisions concerning the [dependent]
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] vulnerable
adult from the care or custody of another;
(2) Abusing the [dependent] vulnerable
adult;
(3) Living at the [dependent] vulnerable
adult's residence;
(4) Contacting the [dependent] vulnerable
adult in person or by telephone;
(5) Selling, removing, or otherwise disposing of the
[dependent] 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] vulnerable adult has an
interest;
(7) Negotiating any instruments payable to the [dependent]
vulnerable adult;
(8) Selling, mortgaging, or otherwise encumbering any
interest that the [dependent] vulnerable adult has in real
property;
(9) Exercising any powers on behalf of the [dependent]
vulnerable adult by representatives of the department, any
court-appointed guardian or guardian ad litem, or any official acting on
[their] the vulnerable adult's behalf; and
(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] vulnerable adult or
would cause the loss of the [dependent] 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] 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."
SECTION 13. 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] vulnerable adult attend the
hearing or show cause why the [dependent] vulnerable adult cannot
attend.
(b) When the court finds that there is
probable cause to believe that a [dependent] vulnerable adult has
been abused [and] or is threatened with imminent abuse, and the [dependent]
vulnerable adult consents, or if the [dependent] vulnerable
adult does not consent and the court finds that there is probable cause to
believe that the [dependent] vulnerable adult lacks the capacity
to make decisions concerning the [dependent] 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]
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] vulnerable adult, and
the court shall set the case for an adjudicatory hearing as soon as it is practical."
SECTION 14. 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]
vulnerable adult;
(2) Facts [which] that bring the [dependent]
vulnerable adult within this part;
(3) Name, birth date, sex, and residence address of
the [dependent] 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] vulnerable adult."
SECTION 15. 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] 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] vulnerable adult at any time
where it finds that the [dependent] 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] vulnerable adult."
SECTION 16. 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] 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 17. 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] vulnerable adult;
(2) Any caregiver or facility in which the [dependent]
vulnerable adult resides or is a patient;
(3) The spouse and adult children of the [dependent]
vulnerable adult;
(4) The parents of the [dependent] 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 18. 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]
vulnerable adult."
SECTION 19. 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] 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] 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] vulnerable adult
and shall also specify what additional measures shall be undertaken to effect
service."
SECTION 20. 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] 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] vulnerable
adult, and whether the [dependent] 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] 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] vulnerable adult to
effectively make decisions concerning personal needs or property [or both].
If the capacity of the [dependent] vulnerable adult is at issue,
the court shall require that the [dependent] vulnerable adult be
examined by a psychiatrist or other physician who is skilled in evaluating the
particular area in which the [dependent] vulnerable adult is
alleged to lack capacity before making any finding that the [dependent] vulnerable
adult lacks capacity. If there is no finding that the [dependent] vulnerable
adult lacks capacity to make [such] personal needs or property
decisions and if the [dependent] vulnerable adult does not give
consent, the court shall not have authority to proceed further and the court
shall dismiss the case."
SECTION 21. 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]
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]
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] 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] vulnerable adult.
To the greatest extent possible, the [dependent] vulnerable adult
should be permitted to participate in decisions concerning the [dependent]
vulnerable adult's person, or property, or both."
SECTION 22. 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] 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 23. 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] 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,] vulnerable adult, may be ordered by the court to pay the
cost of the service, care, support, or treatment provided to the [dependent]
vulnerable adult in whole or in part, after notice and hearing."
SECTION 24. 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] vulnerable
adults."
SECTION 25. Section 626:1-505.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) Exceptions. There is no privilege under this rule:
(1) Perjured testimony by victim. If the victim counselor reasonably believes that the victim has given perjured testimony and a party to the proceeding has made an offer of proof that perjury may have been committed.
(2) Physical appearance and condition of victim. In matters of proof concerning the physical appearance and condition of the victim at the time of the alleged crime.
(3) Breach of duty by victim counselor or victim counseling program. As to a communication relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim.
(4) Mandatory reporting. To relieve victim
counselors of any duty to refuse to report child abuse or neglect under chapter
350, domestic abuse under chapter 586, or abuse of a [dependent] vulnerable
adult under part X of chapter 346, and to refuse to provide evidence in child
abuse proceedings under chapter 587.
(5) Proceedings for hospitalization. For communications relevant to an issue in proceedings to hospitalize the victim for mental illness or substance abuse, or in proceedings for the discharge or release of a victim previously hospitalized for mental illness or substance abuse.
(6) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a victim, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose of which the examination is ordered unless the court orders otherwise.
(7) Condition an element of claim or defense. As to a communication relevant to the physical, mental, or emotional condition of the victim in any proceeding in which the victim relies upon the condition as an element of the victim's claim or defense or, after the victim's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.
(8) Proceedings against the victim counselor. In any administrative or judicial proceeding in which the competency or practice of the victim counselor or of the victim counseling program is at issue, provided that the identifying data of the victims whose records are admitted into evidence shall be kept confidential unless waived by the victim. The administrative agency, board or commission shall close to the public any portion of a proceeding, as necessary to protect the confidentiality of the victim."
SECTION 26. Section 346-252, Hawaii Revised Statutes, is repealed.
["[§346-252]
Advanced age. An individual shall not be involuntarily subjected to
the provisions of this part solely based on advanced age."]
SECTION 27. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2007-2008, and the same sum, or so much thereof as may be necessary for fiscal year 2008-2009, for the department of human services to:
(1) Hire additional staff, including social workers, nurses, and support staff to carry out this Act; and
(2) Contract for services pursuant to chapter 103F, Hawaii Revised Statutes, and provide direct services, as may be necessary, to carry out this Act.
The sums appropriated shall be expended by the department of human services for the purposes of this Act.
SECTION 28. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 29. This Act shall take effect on July 1, 2112.