Report Title:

Adult Protective Services; Dependency and Age Criteria

Description:

Expands adult protective services by deleting dependency criteria; redefines an adult who is subject to Adult Protective Services law as a person who is either physically or mentally impaired or age 70 years or older; defines caregiver neglect, maltreatment and self-neglect for purposes of adult protective services; establishes Adult Protective Services Care Coordinating Committee.

THE SENATE

S.B. NO.

926

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

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, part X, Hawaii Revised Statutes, is amended as follows:

1. By amending the title to read:

"[[]PART X.[]] [DEPENDENT] ADULT PROTECTIVE SERVICES"

2. By amending sections 346-221 to 346-224 to read:

"[[]§346-221[]] Purpose; construction. The legislature recognizes that citizens of the State who are [elder] elderly [and] or who are 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] further recognizes that [it is a person's dependency status, not age, which is] age and dependency are often [encountered] factors 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. 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 and adults 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 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;]

(5) Any adult is subject to caregiver neglect as defined in this section;

(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;] There is evidence of self-neglect as defined in this section; 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] an 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] an adult from a personal or joint account; or

(D) The intentional or negligent failure to effectively use [a dependent] an 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.

"Adult" means an individual who is:

(1) Between the ages of 18 to 69 years and, because of physical or mental impairment, is unable to perform or obtain services necessary for the adult's health, safety, or welfare; or

(2) Age 70 years or older.

"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 neglect" means the failure to exercise that degree of care toward an adult that is exercised by a reasonable person who is placed in a position of responsibility for that adult, including, but not limited to, failure to:

(1) Assist in personal hygiene;

(2) Provide necessary food, shelter and clothing;

(3) Provide necessary health care, access to health care, or prescribed medication;

(4) Protect an adult from health and safety hazards; or

(5) Protect 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.]

"Elder" means a person age 70 years or older.

"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.

"Imminent abuse" means that there exists reasonable cause to believe that abuse will occur or recur within the next ninety days.

"Maltreatment" means an act or omission which threatens the health, safety or welfare of an adult, as defined in this section, or which exposes the adult to a situation or condition which poses an imminent risk of death or bodily injury as defined in section 707-700.

"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] an adult in accordance with a protective services plan.

"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] an adult.

"Self neglect" means a failure to make or communicate decisions to provide adequately for an adult’s person or affairs and which exposes that adult to a situation or condition which poses an imminent risk of death or bodily injury, but does not include an adult who refuses protective services without evidence of the adult’s lack of capacity.

[[]§346-223[]] Jurisdiction; venue. The family court shall have jurisdiction in protective proceedings under this part concerning any [dependent] 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] or is threatened with imminent abuse; 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] adult resides at the time of the filing of the petition or in which the [dependent] 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] an adult has been abused and 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, 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] adult and the person who, or the care organization or care facility which, is alleged to have committed or been responsible for the [dependent] adult abuse, if known; the nature and extent of the [dependent] adult's injury or harm; and any other information the reporter believes might 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) 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] an 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."

3. By amending sections 346-226 to 346-227 to read:

"[[]§346-226[]] Access to records. Records of [a dependent] an adult shall be obtained by the department or the [dependent] adult's court-appointed guardian ad litem with the written consent of the [dependent] 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).

[[]§346-227[]] Investigation. Upon receiving a report that abuse of [a dependent] an 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."

4. By amending sections 346-229 to 346-234 to read:

"[[]§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] 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] 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 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] 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] obtain 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] 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] 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] an adult as defined in section 346-222 and it appears probable that the [dependent] adult has been abused [and] or is threatened with imminent abuse unless immediate action is taken; and the [dependent] adult consents, or if the [dependent] adult does not consent and there is probable cause to believe that the [dependent] adult lacks the capacity to make decisions concerning the [dependent] 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 adult as defined in section 346-222 and that there is probable cause to believe that the [dependent] adult has been abused [and] or is threatened with imminent abuse unless immediate action is taken; and the [dependent] adult consents, or if the [dependent] adult does not consent and there is probable cause to believe that the [dependent] adult lacks the capacity to make decisions concerning the [dependent] 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 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] adult from the care or custody of another;

(2) Abusing the [dependent] adult;

(3) Living at the [dependent] adult's residence;

(4) Contacting the [dependent] adult in person or by telephone;

(5) Selling, removing, or otherwise disposing of the [dependent] 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] adult has an interest;

(7) Negotiating any instruments payable to the [dependent] adult;

(8) Selling, mortgaging, or otherwise encumbering any interest that the [dependent] adult has in real property;

(9) Exercising any powers on behalf of the [dependent] 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 harm to the [dependent] adult or would cause the loss of the [dependent] adult's property.

(e) The court may order restitution from the party responsible for financial or economic exploitation of the adult.

(f) 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] 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)] (g) 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] adult attend the hearing or show cause why the [dependent] adult cannot attend.

(b) When the court finds that there is probable cause to believe that [a dependent] an adult as defined in section 246-222 has been abused [and] or is threatened with imminent abuse, and the [dependent] adult consents, or if the [dependent] adult does not consent and the court finds that there is probable cause to believe that the [dependent] adult lacks the capacity to make decisions concerning the [dependent] 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] 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] 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] an adult[;] as defined in section 346-222;

(2) Facts which bring the [dependent] adult within this part;

(3) Name, birth date, sex, and residence address of the [dependent] 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] adult.

[[]§346-234[]] Guardian ad litem; counsel. (a) In any case where the court has reason to believe that [a dependent] an adult or any other party lacks the capacity to effectively make decisions concerning the party's person, it [may] shall 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] adult at any time where it finds that the [dependent] 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] adult.

5. By amending sections 346-236 to 346-237 to read:

"[[]§346-236[]] Permanent changes. Permanent changes in the living situation of an abused [dependent] 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] adult[;] as defined in section 346-222;

(2) Any caregiver or facility in which the [dependent] adult resides or is a patient;

(3) The spouse and adult children of the [dependent] adult;

(4) The parents of the [dependent] adult, unless waived by the court for good cause;

(5) Any guardian of the person or property 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."

6. By amending sections 346-239 to 346-242 to read:

"[[]§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] 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] 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] 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] 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 adult[,] as defined in section 346-222, and whether the [dependent] adult has been abused [and] or is threatened with imminent abuse, 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] adult has been abused [and] or is 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] adult to effectively make decisions concerning personal needs or property or both. If the capacity of the [dependent] adult is at issue, the court shall require that the [dependent] adult be examined by a psychiatrist or other physician who is skilled in evaluating the particular area in which the [dependent] adult is alleged to lack capacity before making any finding that the [dependent] adult lacks capacity. If there is no finding that the [dependent] adult lacks capacity to make such decisions and if the [dependent] 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] 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] 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] 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] adult. To the greatest extent possible, the [dependent] adult should be permitted to participate in decisions concerning the [dependent] 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] 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."

7. By amending section 346-247 to read:

"[[]§346-247[]] Payment for service or treatment provided to a party. Whenever service, treatment, care, or support of [a dependent] an 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] adult, may be ordered by the court to pay the cost of the service, care, support, or treatment provided to the [dependent] adult in whole or in part, after notice and hearing."

8. By amending section 346-249 to read:

"[[]§346-249[]] Cooperation[.] and coordination. (a) 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] adults[.] as defined in section 346-222.

(b) The department shall establish an adult protective services system coordinating committee to coordinate and improve the delivery of services to protect or assist adults. The committee shall consist of both public and private organizations involved in the provision of social, health, legal, nutritional, financial, and other services to adults."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect on July 1, 2003.

INTRODUCED BY:

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