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
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
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;
30 ▸ makes technical changes.
31 Money Appropriated in this Bill:
33 Other Special Clauses:
35 Utah Code Sections Affected:
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
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
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;
67 (e) deprivation of life sustaining treatment, or medical or mental health treatment,
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
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
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
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.
105 Section 76-5b-202.
107 psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
108 knowingly or intentionally.
110 basis to conclude that abuse, neglect, or exploitation occurred.
112 which threatens deprivation of money, food, clothing, medicine, shelter, social interaction,
113 supervision, health care, or companionship, or which threatens isolation or abuse.
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.
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
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.
149 ordered protective services.
151 abuse, neglect, or exploitation.
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.
159 to conclude that abuse, neglect, or exploitation occurred.
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.
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.
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
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; [
184 (3) shall, subject to Section 62A-3-320, provide emergency protective services; and
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
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 [
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;
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;
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;
225 exploitation; and
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 [
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) [
269 vulnerable adult who does not consent or who lacks capacity to consent to protective services
270 in accordance with [
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 [
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.
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 [
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 [
292 (3) An emergency protective services order shall specifically designate [
294 the facts that support the provision of those services.
296 (4) Services authorized in an emergency protective services order may [
297 hospitalization, nursing [
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.
308 emergency protective services petition is filed within [
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.
318 authorize forcible entry by a peace officer into the premises where the [
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 [
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 [
336 Section 9. Repealer.
337 This bill repeals:
338 Section 62A-3-318, Petition by division for protective services -- Notice -- Rights of
340 Section 62A-3-319, Court order for protective services -- Review.
Legislative Review Note
Office of Legislative Research and General Counsel