Report Title:
Social Services; Adult Protective Services
Description:
Expands authority to investigate allegations of abuse, neglect, and financial exploitation of vulnerable adults.
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THE SENATE |
S.B. NO. |
3049 |
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TWENTY-FOURTH LEGISLATURE, 2008 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO ADULT PROTECTIVE SERVICES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 346, Hawaii Revised Statutes, is amended by amending part X to read as follows:
"[[]]PART X.[]] [DEPENDENT] ADULT PROTECTIVE SERVICES
[[]§346-221[]]
Purpose; construction. The legislature recognizes that citizens of the
State who are elder and mentally or physically impaired 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,] vulnerability,
not 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] may become subjects of abuse
and neglect. Substantial public interest exists to ensure that this segment of
the population receives protection.
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.
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.
[[]§346-222[]]
Definitions.
"Abuse" means [actual or imminent] physical injury,
psychological abuse [or neglect],
sexual abuse, financial exploitation, [negligent
treatment, or maltreatment] caregiver neglect, or self-neglect or
poor self care as further defined in this
chapter.
[Abuse occurs
where:
(1) Any dependent 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
includes a consistent pattern of actions or verbalizations including threats,
insults, or harassment, that humiliates, provokes, intimidates, confuses, and
frightens the dependent 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 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 adult is not provided in
a timely manner with adequate food, clothing, shelter, psychological care,
physical care, medical care, or supervision;
(4) Any dependent adult is provided with
dangerous, harmful, or detrimental drugs as defined by section 712-1240;
however, this paragraph shall not apply when such drugs are provided to the
dependent 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 adult which a reasonable person with the
responsibility of a caregiver would exercise, including, but not limited to,
failure to:
(A) Assist in personal hygiene;
(B) Provide necessary food, shelter,
and 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 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 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 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 decisions.
"Caregiver" means any person who has undertaken the care, custody, or physical control of, or who has a legal or contractual duty to care for the health, safety, and welfare of a vulnerable adult.
"Caregiver neglect" means the failure to exercise that degree of care toward a vulnerable adult that a reasonable person with the responsibility of a caregiver would exercise, including but not limited to, failure to:
(1) Assist in personal hygiene;
(2) Protect the vulnerable adult from abandonment;
(3) Provide in a timely manner necessary food, shelter, and clothing;
(4) Provide in a timely manner necessary health care, access to health care, prescribed medication, psychological care, physical care, or supervision;
(5) Protect the vulnerable adult from the provision of dangerous, harmful, or detrimental drugs as defined by section 712-1240except that this paragraph shall not apply when such drugs are provided to the vulnerable adult pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;
(6) Protect the vulnerable adult from health and safety hazards; or
(7) Protect the vulnerable adult against acts of abuse by third parties.
"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.]
"Emergency medical treatment" means those services 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 exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of a vulnerable adult's money, real property, or personal property, including but not limited to:
(1) 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;
(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 intentional or negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for the person's support and maintenance.
The exploitations may involve coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.
["Imminent
abuse" means that there exists reasonable cause to believe that abuse will
occur or recur within the next ninety days.]
"Party" means those persons, care
organizations, or care facilities entitled to notice of proceedings under
sections 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 a protective services plan.
"Physical abuse" means the non-accidental infliction of physical or bodily injury, pain or impairment, including but not limited to, being slapped, burned, cut, bruised, poisoned, improperly physically restrained, or suffering injuries that are not justifiably explained or where the history given is at variance with the degree or type of injury.
"Protective services plan" means a
specific written plan, prepared by the department, setting forth the specific
services and treatment to be provided to a [dependent]
vulnerable adult.
"Psychological abuse" means the infliction of mental or emotional distress by use of threats, insults or harassment that humiliates, provokes, intimidates, confuses, or frightens the vulnerable adult.
"Self-neglect" or "poor self care" means a vulnerable adult's inability, due to physical or mental impairments to perform tasks essential to caring for oneself, including but not limited to, providing essential food, clothing, shelter, and medical care, obtaining goods and services necessary to maintain physical health, mental health, emotional well-being and general safety, or managing financial affairs. The vulnerable adult shall appear to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the vulnerable adult's person, and appear to be exposed to a situation or condition that poses an immediate risk of death or risk of serious physical harm.
"Sexual abuse" means non-consensual sexual contact or conduct, including but not limited to:
(1) Sexual assault, molestation, sexual
fondling, incest, prostitution;
(2) Obscene or pornographic photographing,
filming, or depiction; or
(3) Other similar forms of sexual
exploitation.
"Vulnerable adult" means any adult who, because of mental or physical impairment, is unable to make reasonable decisions to manage one's own resources, to carry out or arrange for essential activities of daily living, or to protect oneself from abuse, neglect, or financial exploitation without assistance from others.
[[]§346-223[]]
Jurisdiction; venue. The family court shall have jurisdiction in
protective proceedings under this part concerning any [dependent] vulnerable adult who was
or is found within the circuit at the time such facts and circumstances
occurred, were discovered, or were reported to the department, which constitute
the basis for a finding that the person has been abused [and is threatened with imminent abuse;] or
is in danger of being abused if immediate action is not taken; provided
that the protective proceedings under this part are not 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.
[[]§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 is threatened with imminent abuse]
or is in danger of being abused if immediate action is not taken 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] vulnerable adults,
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.
(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 a police department is the initiating agency, a
written report shall not be required unless the police department has declined
to take further action and the department informs the police department that it
intends to pursue the matter of the orally reported incident of abuse. All
written reports shall contain the name and address of the [dependent] vulnerable adult and the
person who or care organization or care facility which is alleged to have
committed or been responsible for the [dependent]
vulnerable adult abuse, if known; the nature and extent of the [dependent] vulnerable adult's injury
or harm; and any other information the reporter believes might be helpful in
establishing the cause of the [dependent]
vulnerable adult abuse.
(c) This section shall not prohibit any of the persons enumerated in subsection (a) from reporting incidents which those persons have reason to believe involve abuse which came to their attention in any 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] in danger of being abused if immediate action is
not taken 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.
[[]§346-225[]]
Confidentiality of reports. All reports made pursuant to this part,
including the identity of the reporting person, as well as all records of such
reports, are 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.
[[]§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 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] vulnerable 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).
[[]§346-227[]]
Investigation. Upon receiving a report that abuse of a [dependent] vulnerable adult has
occurred [and is imminent,] or
is in danger of occurring if immediate action is not taken, the department
shall cause an investigation to be commenced in accordance with this part as
the department deems appropriate. The department shall not be required to
investigate a report that fails to allege that abuse of a vulnerable adult has
occurred or is in danger of occurring if immediate action is not taken.
[[]§346-228[]]
Action upon investigation. Upon investigation the department shall
take action toward preventing abuse from occurring or preventing further
abuse and shall have the authority to do any or all of the following:
(1) Resolve the matter in an informal fashion as is appropriate under the circumstances;
(2) Exercise its right of entry under section 346-229;
(3) Seek an order for immediate protection;
(4) Seek a temporary restraining order;
(5) File a petition with the court under this part; and
(6) Seek any protective or remedial actions authorized by law.
[[]§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.
§346-230 Termination of services. 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.
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.
[[]§346-231[]]
Order for immediate protection. (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
is threatened with imminent abuse] or is in danger of being
abused 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.
(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] vulnerable adult and that
there is probable cause to believe that the [dependent]
vulnerable adult has been abused [and
is threatened with imminent abuse] or is in danger of being
abused 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 other matters as may prevent [imminent] immediate 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 behalf;
(10) Engaging in any other specified act which, based
upon the facts alleged, would constitute harm or present a threat of [imminent] immediate 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.
(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.
[[]§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
is threatened with imminent abuse,] or is in danger of being
abused if immediate action is not taken 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.
[[]§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 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.
[[]§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 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.
§346-235 Consolidation with guardianship proceedings. A proceeding for the appointment of a guardian or conservator under article V of chapter 560 may be consolidated with the proceedings under this part as the applicable circuit court and the family court, in the exercise of their discretion, shall permit.
[[]§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.
§346-237 Notice of proceedings. 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.
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.
[[]§346-238[]]
Service. (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.
(b) Service shall be effected at least forty-eight hours prior to the time fixed in the notice for hearing when held pursuant to section 346-232(a), or at least fifteen days prior to the time fixed in the notice for an adjudicatory, disposition, or review hearing, unless the party otherwise was ordered by the court to appear at those hearings.
[[]§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.
[[]§346-240[]]
Adjudicatory hearing. (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
is threatened with imminent abuse,] or is in danger of being
abused if immediate action is not taken, based upon a preponderance of the
evidence. Evidence which 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
threatened with imminent abuse] or is in danger of being abused
if immediate action is not taken 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 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.
(d) Upon the completion of the adjudicatory hearing, the disposition hearing may commence immediately after the required findings are made, provided the requirements of section 346-241(a) have been met, or the court may set the disposition hearing for such time as it deems appropriate.
(e) If facts sufficient to sustain the petition under this part are not established, the court shall dismiss the petition and shall state the grounds for dismissal.
(f) If the court sustains the petition and does not commence immediately to the disposition hearing, it shall determine, based upon the facts adduced during the adjudicatory hearing and any additional facts presented to it, whether any temporary orders should be issued pending final disposition.
§346-241 Disposition. (a) The department shall prepare a proposed protective order and a written protective services plan and submit copies to the court and each of the parties or their counsel at least seven days prior to the disposition hearing.
(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.
(e) The court shall conduct a disposition hearing concerning the terms and conditions set forth in the proposed protective order and proposed protective services plan unless each of the appropriate parties accepts the order and plan, in which event, the court may approve the order and plan without a hearing.
§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.
[[]§346-243[]]
Appeal. Any party aggrieved by an order or decree of the court may appeal
as provided by section 571-54.
§346-244 Admissibility of evidence. The physician-patient privilege, the psychologist-client privilege, the spousal privilege, and the victim-counselor privilege shall not be grounds for excluding evidence in any judicial proceeding resulting from a report pursuant to this part.
[[]§346-245[]]
Hearings. The protective proceedings shall be heard without a jury. The
hearing may be adjourned from time to time. The general public shall be
excluded, and only such persons as are found by the court to have a direct
interest in the case shall be admitted.
[[]§346-246[]]
Failure to comply with court orders. The court may apply contempt of court
provisions and all other provisions available under the law if a party fails to
comply with the terms and conditions of any order issued under this part.
[[]§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] vulnerable
person, 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.
[[]§346-248[]]
Fiscal and service responsibility. The department or other authorized
agencies shall provide only the care, service, treatment, support, or payment
authorized by law. The department or authorized agencies shall have the authority
to establish priorities and limitations of services based on their resources.
[[]§346-249[]]
Cooperation. Every public official or department shall render all
assistance and cooperation within the official's or department's power and
which 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.
[[]§346-250[]]
Immunity from liability. (a) Anyone participating in good faith in the
making of a report pursuant to this part shall have immunity from any
liability, civil or criminal, that might be otherwise incurred or imposed by or
as a result of the making of such a report. Any participant shall have the same
immunity with respect to participation in any judicial proceeding resulting
from that report.
(b) Any individual who assumes a duty or responsibility pursuant to this part shall have immunity from civil liability for acts or omissions performed within the scope of the individual's duty or responsibility. Nothing in this part shall limit the liability of the department, any other state agency, or any private organization for the conduct of individuals acting within the scope of their duties provided immunity under this section.
[[]§346-251[]]
Presumption of capacity. An individual shall be presumed capable of making
decisions concerning the individual's person. A determination that an
individual lacks capacity under this part shall not be construed as a finding
that the individual lacks capacity for any other purpose.
[[]§346-252[]]
Advanced age. An individual shall not be involuntarily subjected to the
provisions of this part solely based on advanced age.
[[]§346-253[]]
Rules. The department shall adopt rules pursuant to chapter 91 necessary
for the purposes of this part."
SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 3. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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BY REQUEST |