1     
ADULT PROTECTIVE SERVICES AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Rebecca P. Edwards

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill establishes the means and criteria for Adult Protective Services to obtain court
10     authority to provide emergency protective services to a vulnerable adult in an
11     emergency.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines "emergency protective services";
15          ▸     requires Adult Protective Services to provide emergency protective services, subject
16     to court order;
17          ▸     allows the Division of Occupational and Professional Licensing access to the Adult
18     Protective Services database;
19          ▸     clarifies that protective services are provided only on a voluntary basis and
20     emergency protective services are provided under court order;
21          ▸     clarifies the venue for court proceedings for protective services and emergency
22     protective services;
23          ▸     establishes requirements and the process for a court to order emergency protective
24     services;
25          ▸     sets time limits for emergency protective services;
26          ▸     allows a court to authorize forcible entry by a peace officer into the premises where
27     the vulnerable adult may be found;
28          ▸     repeals authority and procedures for court-ordered involuntary protective services;
29     and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          None
35     Utah Code Sections Affected:
36     AMENDS:
37          62A-3-301, as last amended by Laws of Utah 2012, Chapter 149
38          62A-3-302, as last amended by Laws of Utah 2008, Chapter 91
39          62A-3-303, as last amended by Laws of Utah 2014, Chapter 245
40          62A-3-312, as last amended by Laws of Utah 2014, Chapter 245
41          62A-3-315, as enacted by Laws of Utah 2002, Chapter 108
42          62A-3-317, as enacted by Laws of Utah 2002, Chapter 108
43          62A-3-320, as last amended by Laws of Utah 2008, Chapter 91
44          62A-3-321, as enacted by Laws of Utah 2002, Chapter 108
45     REPEALS:
46          62A-3-318, as last amended by Laws of Utah 2008, Chapter 91
47          62A-3-319, as enacted by Laws of Utah 2002, Chapter 108
48     

49     Be it enacted by the Legislature of the state of Utah:
50          Section 1. Section 62A-3-301 is amended to read:
51          62A-3-301. Definitions.
52          As used in this part:
53          (1) "Abandonment" means any knowing or intentional action or failure to act,
54     including desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves
55     the vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
56     medical or other health care.
57          (2) "Abuse" means:
58          (a) knowingly or intentionally:
59          (i) attempting to cause harm;
60          (ii) causing harm; or
61          (iii) placing another in fear of harm;
62          (b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
63     causes or is likely to cause harm to a vulnerable adult;
64          (c) emotional or psychological abuse;
65          (d) a sexual offense as described in Title 76, Chapter 5, Offenses Against the Person;
66     or
67          (e) deprivation of life sustaining treatment, or medical or mental health treatment,
68     except:
69          (i) as provided in Title 75, Chapter 2a, Advance Health Care Directive Act; or
70          (ii) when informed consent, as defined in Section 76-5-111, has been obtained.
71          (3) "Adult" means a person who is 18 years of age or older.
72          (4) "Adult protection case file" means a record, stored in any format, contained in a
73     case file maintained by Adult Protective Services.
74          (5) "Adult Protective Services" means the unit within the division responsible to
75     investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
76     protective services.
77          (6) "Capacity to consent" means the ability of a person to understand and communicate
78     regarding the nature and consequences of decisions relating to the person, and relating to the
79     person's property and lifestyle, including a decision to accept or refuse services.
80          (7) "Caretaker" means each person, entity, corporation, or public institution that
81     assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
82     supervision, medical or other health care, resource management, or other necessities.
83          (8) "Counsel" means an attorney licensed to practice law in this state.
84          (9) "Database" means the statewide database maintained by the division under Section
85     62A-3-311.1.
86          (10) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
87          (11) "Elder adult" means a person 65 years of age or older.
88          (12) "Emergency" means a circumstance in which a vulnerable adult is at an immediate
89     risk of death, serious physical injury, or serious physical, emotional, or financial harm.
90          (13) "Emergency protective services" means measures taken by Adult Protective
91     Services under time-limited, court-ordered authority for the purpose of remediating an
92     emergency.
93          [(13)] (14) (a) "Emotional or psychological abuse" means knowing or intentional
94     verbal or nonverbal conduct directed at a vulnerable adult that results in the vulnerable adult
95     suffering mental anguish, emotional distress, fear, humiliation, degradation, agitation, or
96     confusion.
97          (b) "Emotional or psychological abuse" includes intimidating, threatening, isolating,
98     coercing, or harassing.
99          (c) "Emotional or psychological abuse" does not include verbal or non-verbal conduct
100     by a vulnerable adult who lacks the capacity to intentionally or knowingly:
101          (i) engage in the conduct; or
102          (ii) cause mental anguish, emotional distress, fear, humiliation, degradation, agitation,
103     or confusion.
104          [(14)] (15) "Exploitation" means an offense described in Subsection 76-5-111(4) or
105     Section 76-5b-202.
106          [(15)] (16) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
107     psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
108     knowingly or intentionally.
109          [(16)] (17) "Inconclusive" means a finding by the division that there is not a reasonable
110     basis to conclude that abuse, neglect, or exploitation occurred.
111          [(17)] (18) "Intimidation" means communication through verbal or nonverbal conduct
112     which threatens deprivation of money, food, clothing, medicine, shelter, social interaction,
113     supervision, health care, or companionship, or which threatens isolation or abuse.
114          [(18)] (19) (a) "Isolation" means knowingly or intentionally preventing a vulnerable
115     adult from having contact with another person by:
116          (i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
117     contrary to the expressed wishes of the vulnerable adult, including communicating to a visitor
118     that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
119     knowing that communication to be false;
120          (ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
121     from meeting with a visitor; or
122          (iii) making false or misleading statements to the vulnerable adult in order to induce
123     the vulnerable adult to refuse to receive communication from visitors or other family members.
124          (b) The term "isolation" does not include an act intended to protect the physical or
125     mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
126     instructions of a physician or other professional advisor of the vulnerable adult.
127          [(19)] (20) "Lacks capacity to consent" is as defined in Section 76-5-111.
128          [(20)] (21) (a) "Neglect" means:
129          (i) (A) failure of a caretaker to provide necessary care, including nutrition, clothing,
130     shelter, supervision, personal care, or dental, medical, or other health care for a vulnerable
131     adult, unless the vulnerable adult is able to provide or obtain the necessary care without
132     assistance; or
133          (B) failure of a caretaker to provide protection from health and safety hazards or
134     maltreatment;
135          (ii) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
136     with the degree of care that a reasonable person in a like position would exercise;
137          (iii) a pattern of conduct by a caretaker, without the vulnerable adult's informed
138     consent, resulting in deprivation of food, water, medication, health care, shelter, cooling,
139     heating, or other services necessary to maintain the vulnerable adult's well being;
140          (iv) knowing or intentional failure by a caretaker to carry out a prescribed treatment
141     plan that causes or is likely to cause harm to the vulnerable adult;
142          (v) self-neglect by the vulnerable adult; or
143          (vi) abandonment by a caretaker.
144          (b) "Neglect" does not include conduct, or failure to take action, that is permitted or
145     excused under Title 75, Chapter 2a, Advance Health Care Directive Act.
146          [(21)] (22) "Physical injury" includes the damage and conditions described in Section
147     76-5-111.
148          [(22)] (23) "Protected person" means a vulnerable adult for whom the court has
149     ordered protective services.
150          [(23)] (24) "Protective services" means services to protect a vulnerable adult from
151     abuse, neglect, or exploitation.
152          [(24)] (25) "Self-neglect" means the failure of a vulnerable adult to provide or obtain
153     food, water, medication, health care, shelter, cooling, heating, safety, or other services
154     necessary to maintain the vulnerable adult's well being when that failure is the result of the
155     adult's mental or physical impairment. Choice of lifestyle or living arrangements may not, by
156     themselves, be evidence of self-neglect.
157          [(25)] (26) "Serious physical injury" is as defined in Section 76-5-111.
158          [(26)] (27) "Supported" means a finding by the division that there is a reasonable basis
159     to conclude that abuse, neglect, or exploitation occurred.
160          [(27)] (28) "Undue influence" occurs when a person uses the person's role, relationship,
161     or power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or
162     fear of a vulnerable adult, or uses the person's role, relationship, or power to gain control
163     deceptively over the decision making of the vulnerable adult.
164          [(28)] (29) "Vulnerable adult" means an elder adult, or an adult who has a mental or
165     physical impairment which substantially affects that person's ability to:
166          (a) provide personal protection;
167          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
168          (c) obtain services necessary for health, safety, or welfare;
169          (d) carry out the activities of daily living;
170          (e) manage the adult's own financial resources; or
171          (f) comprehend the nature and consequences of remaining in a situation of abuse,
172     neglect, or exploitation.
173          [(29)] (30) "Without merit" means a finding that abuse, neglect, or exploitation did not
174     occur.
175          Section 2. Section 62A-3-302 is amended to read:
176          62A-3-302. Purpose of Adult Protective Services Program.
177          Subject to the rules made by the division under Section 62A-3-106.5, Adult Protective
178     Services:
179          (1) shall investigate or cause to be investigated reports of alleged abuse, neglect, or
180     exploitation of vulnerable adults;
181          (2) shall, where appropriate, provide short-term, limited protective services with the
182     permission of the affected vulnerable adult or the guardian or conservator of the vulnerable
183     adult; [and]
184          (3) shall, subject to Section 62A-3-320, provide emergency protective services; and
185          [(3)] (4) may make rules, in accordance with Title 63G, Chapter 3, Utah
186     Administrative Rulemaking Act, and develop procedures and policies relating to:
187          (a) reporting and investigating incidents of abuse, neglect, or exploitation; and
188          (b) providing protective services to the extent that funds are appropriated by the
189     Legislature for this purpose.
190          Section 3. Section 62A-3-303 is amended to read:
191          62A-3-303. Powers and duties of Adult Protective Services.
192          In addition to all other powers and duties that Adult Protective Services is given under
193     this part, Adult Protective Services:
194          (1) shall maintain an intake system for receiving and screening reports;
195          (2) shall investigate referrals that meet the intake criteria;
196          (3) shall conduct assessments of vulnerability and functional capacity as it relates to an
197     allegation of abuse, neglect, or exploitation of an adult who is the subject of a report;
198          (4) shall perform assessments based on protective needs and risks for a vulnerable
199     adult who is the subject of a report;
200          (5) may address any protective needs by making recommendations to and coordinating
201     with the vulnerable adult or by making referrals to community resources;
202          (6) may provide short-term, limited services to a vulnerable adult when family or
203     community resources are not available to provide for the protective needs of the vulnerable
204     adult;
205          (7) shall have access to facilities licensed by, or contracted with, the department or the
206     Department of Health for the purpose of conducting investigations;
207          (8) shall be given access to, or provided with, written statements, documents, exhibits,
208     and other items related to an investigation, including private, controlled, or protected medical
209     or financial records of a vulnerable adult who is the subject of an investigation if:
210          (a) for a vulnerable adult who [does not lack] has the capacity to consent, the
211     vulnerable adult signs a release of information; or
212          (b) for a vulnerable adult who lacks capacity to consent, an administrative subpoena is
213     issued by Adult Protective Services;
214          (9) may initiate proceedings in a court of competent jurisdiction to seek relief
215     necessary to carry out the provisions of this chapter;
216          (10) shall, subject to Section 62A-3-320, provide emergency protective services;
217          [(10)] (11) may require all persons, including family members of a vulnerable adult
218     and any caretaker, to cooperate with Adult Protective Services in carrying out its duties under
219     this chapter, including the provision of statements, documents, exhibits, and other items that
220     assist Adult Protective Services in conducting investigations and providing protective services;
221          [(11)] (12) may require all officials, agencies, departments, and political subdivisions
222     of the state to assist and cooperate within their jurisdictional power with the court, the division,
223     and Adult Protective Services in furthering the purposes of this chapter;
224          [(12)] (13) may conduct studies and compile data regarding abuse, neglect, and
225     exploitation; and
226          [(13)] (14) may issue reports and recommendations.
227          Section 4. Section 62A-3-312 is amended to read:
228          62A-3-312. Access to information in database.
229          The database and the adult protection case file:
230          (1) shall be made available to law enforcement agencies, the attorney general's office,
231     city attorneys, the Division of Occupational and Professional Licensing, and county or district
232     attorney's offices;
233          (2) shall be released as required under Subsection 63G-2-202(4)(c); and
234          (3) may be made available, at the discretion of the division, to:
235          (a) subjects of a report as follows:
236          (i) a vulnerable adult named in a report as a victim of abuse, neglect, or exploitation, or
237     that adult's attorney or legal guardian; and
238          (ii) a person identified in a report as having abused, neglected, or exploited a
239     vulnerable adult, or that person's attorney; and
240          (b) persons involved in an evaluation or assessment of the vulnerable adult as follows:
241          (i) an employee or contractor of the department who is responsible for the evaluation or
242     assessment of an adult protection case file;
243          (ii) a multidisciplinary team approved by the division to assist Adult Protective
244     Services in the evaluation, assessment, and disposition of a vulnerable adult case;
245          (iii) an authorized person or agency providing services to, or responsible for, the care,
246     treatment, assessment, or supervision of a vulnerable adult named in the report as a victim,
247     when in the opinion of the division, that information will assist in the protection of, or provide
248     other benefits to, the victim;
249          (iv) a licensing authority for a facility, program, or person providing care to a victim
250     named in a report; and
251          (v) legally authorized protection and advocacy agencies when they represent a victim
252     or have been requested by the division to assist on a case, including:
253          (A) the Office of Public Guardian, created in Section 62A-14-103; and
254          (B) the Long-Term Care Ombudsman Program, created in Section 62A-3-203.
255          Section 5. Section 62A-3-315 is amended to read:
256          62A-3-315. Protective services voluntary unless court ordered.
257          (1) Vulnerable adults who receive protective services under this part shall do so
258     knowingly or voluntarily or upon district court order.
259          (2) Protective services may be provided without a court order for a vulnerable adult
260     who [does not lack] has the capacity to consent and who requests or knowingly or voluntarily
261     consents to those services. Protective services may also be provided for a vulnerable adult
262     whose guardian or conservator with authority to consent does consent to those services. When
263     short-term, limited protective services are provided, the division and the recipient, or the
264     recipient's guardian or conservator, shall execute a written agreement setting forth the purposes
265     and limitations of the services to be provided. If consent is subsequently withdrawn by the
266     recipient, the recipient's guardian or conservator, or the court, services, including any
267     investigation, shall cease.
268          (3) [The] A court may order emergency protective services to be provided to a
269     vulnerable adult who does not consent or who lacks capacity to consent to protective services
270     in accordance with [this part] Section 62A-3-320.
271          Section 6. Section 62A-3-317 is amended to read:
272          62A-3-317. Venue for protective services proceedings.
273          Venue for all proceedings [for] related to protective services and emergency protective
274     services under this chapter is in the county where the vulnerable adult resides or is present.
275          Section 7. Section 62A-3-320 is amended to read:
276          62A-3-320. Emergency protective services -- Forcible entry.
277          [(1) Upon the filing of a petition for an emergency order, the court may, without notice,
278     order appropriate protective services, if the court finds that:]
279          (1) Adult Protective Services shall, immediately upon court order, provide emergency
280     protective services to a court-designated vulnerable adult.
281          (2) A court may, without notice, order emergency protective services immediately upon
282     receipt of a petition for emergency protective services when a court finds that:
283          (a) the subject of the petition is a vulnerable adult;
284          (b) (i) the vulnerable adult [has no] does not have a court-appointed guardian or
285     conservator; or
286          (ii) the guardian or conservator is not effectively performing the guardian's or
287     conservator's duties;
288          (c) an emergency exists; and
289          (d) the welfare, safety, or best interests of the vulnerable adult [require immediate
290     action] requires emergency protective services.
291          [(2) The order described in Subsection (1)]
292          (3) An emergency protective services order shall specifically designate [the protective
293     services which are approved, together with supporting facts] the services that are approved and
294     the facts that support the provision of those services.
295          [(3) Protective services]
296          (4) Services authorized in an emergency protective services order may [not] include
297     hospitalization, nursing [or], custodial care, or a change in residence[, unless the court
298     specifically finds that the action is necessary and authorizes the specific protective services in
299     the order].
300          [(4) (a) Protective services provided through an emergency order may not be provided
301     longer than three business days, at which time the order shall expire unless a petition for
302     guardianship, conservatorship, or other protective services is filed.]
303          (5) An emergency protective services order expires five business days after the day on
304     which the court issues the order unless an appropriate party petitions for temporary
305     guardianship pursuant to Section 75-5-310 or the division files a new petition for an emergency
306     services order.
307          [(b)] (6) If a petition for guardianship[, conservatorship, or other] or an additional
308     emergency protective services petition is filed within [the three-business-day period described
309     in Subsection (4)(a), the emergency order may be continued for as long as 15 days from the day
310     on which the last petition was filed, to allow time for a hearing to determine whether the
311     emergency order shall remain in effect] five business days after the day on which the court
312     issues the original emergency protective services order, a court may extend the duration of the
313     original order an additional 15 business days after the day on which the subsequent petition is
314     filed to allow for a court hearing on the petition.
315          [(5) In the emergency order, the court may appoint a temporary guardian, in accordance
316     with Section 75-5-310.]
317          [(6)] (7) To implement an emergency protective services order, [the] a court may
318     authorize forcible entry by a peace officer into the premises where the [protected person is
319     residing, only upon a showing that voluntary access into the premises is not possible and that
320     forcible entry is required] vulnerable adult may be found.
321          Section 8. Section 62A-3-321 is amended to read:
322          62A-3-321. Petition for injunctive relief when caretaker refuses to allow
323     protective services.
324          (1) When a vulnerable adult is in need of protective services and the caretaker refuses
325     to allow the provision of those services, the division may petition the court for injunctive relief
326     prohibiting the caretaker from interfering with the provision of protective services.
327          (2) The division's petition under Subsection (1) shall allege facts sufficient to show that
328     the vulnerable adult is in need of protective services, that the vulnerable adult either consents
329     or lacks capacity to consent to those services, and that the caretaker refuses to allow the
330     provision of those services [or to order other appropriate relief].
331          (3) The court may, on appropriate findings and conclusions in accordance with Rule
332     65A, Utah Rules of Civil Procedure, issue an order enjoining the caretaker from interfering
333     with the provision of protective services.
334          (4) The petition under Subsection (1) may be joined with a petition under [Section
335     62A-3-318 or] Section 62A-3-320.
336          Section 9. Repealer.
337          This bill repeals:
338          Section 62A-3-318, Petition by division for protective services -- Notice -- Rights of
339     adult.
340          Section 62A-3-319, Court order for protective services -- Review.