CHAPTER 384

FORMERLY

SENATE BILL NO. 592

AN ACT TO AMEND TITLE 31, DELAWARE CODE, RELATING TO THE ESTABLISHMENT OF AN ADULT PROTECTIVE SERVICES UNIT WITHIN THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES..

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 31, Delaware Code, by adding thereto a new Chapter to be designated as Chapter 39, which shall read as follows:

"CHAPTER 39. ADULT PROTECTIVE SERVICES

§3901. Declaration of Policy

The Legislature of the State of Delaware recognizes that many adult citizens of this State are subject to psychological or physical injury or exploitation because of physical or mental Infirmity, disease, or other causes which render, them incapable of providing for their basic daily living needs. The Legislature, therefore, intends through this Act to establish a system of services for impaired adults designed to protect their health, safety, and welfare. The intent is to authorize only the least possible restrictions on the exercise of personal and civil rights and such restrictions may be permitted only when consistent with proven need for services.

§3902. Definitions

As used in this Chapter:

(a) 'Infirm adult' shall mean any person eighteen (18) years of age or over who, because of physical or mental disability is substantially impaired in his ability to provide adequately for his own care and custody.

(b) 'Physical or mental disability' shall include any physical or mental disability and shall include, but not be limited to, mental retardation, brain damage, physical degeneration, deterioration, senility, disease, habitual drunkenness or addiction to drugs, and mental or physical infirmity.

(c) 'Substantially impaired in his ability to provide adequately for his own care and custody' means the infirm person is unable to perform or obtain for himself essential services.

(di 'Essential services' shall refer to those physical, medical, social, psychiatric or legal services necessary to safeguard the person, rights, and resources of the infirm person and to maintain his physical and mental well-being. These services shall include, but not be limited to, adequate food and clothing, heated and sanitary shelter, medical care for physical and mental health needs, assistance in personal hygiene, protection from health and safety hazards, protection from physical or mental injury or exploitation.

(e) 'Exploitation' means the illegal or improper use or abuse of an infirm person, his resources, or his rights, by another person, whether for profit or other advantage.

(f) 'Incapacitated person' means a person for whom a guardian of person or property, or both, shall be appointed, under the provisions of 12 Del. C. §3914(a).

(g) 'Independent living arrangement' means a mode of life pursued by a person capable of providing for his own care or who, while impaired, nevertheless is able to live outside an institution with assistance in obtaining essential services.

(a) 'Hazardous living condition' means a mode of life which contains a substantial risk of physical injury, or mental distress, or exploitation.

(i) 'Interested person' means any adult relative or friend of an infirm person; an official or representative of the protective services agency or of any public or nonpublic private agency; or any corporation, board, organization, or person designated by the Court to act in the interest of the infirm person.

(j) 'Emergency' means that a person is living in conditions which present a substantial risk of serious harm and includes, but is not limited to, problems which cannot be managed by an unpaired person, such as insufficient food supply, inadequate shelter, threatened abuse, or utility shut-off. Emergency does not mean psychiatric emergency as provided for in 16 Del. C., Chapter 50.

(k) 'Emergency services' arc protective services furnished to a person in an emergency.

(l) 'Public Guardian' means the Office of the Public Guardian.

(m) 'Protective placement' means the transfer of a person out of an independent living arrangement.

(n) 'Court' means the Court of Chancery of the State of Delnware.

(o) 'Department' means the Department of Health and Social Services of the State of Delaware.

§3903. Establishment and Protective Service System

(a) The Secretary of the Department of Health and Socinl Services shall appoint, within six (6) weeks of the effective date of this Act, an Advisory Committee to assist the Department in developing a comprehensive and coordinated system of protective services for infirm and incapacitated adults in the State of Delnware. The Committee shall consist of representatives of the Office of the Public Guardian, the Division of Economic Services, the Division of Aging, the Division of Mental Retardation, the Division of Mental Health, the Division of Public Health, and Senior citizens Legal Assistance Program and the Governor's Council on Emergency Medical Services. The Committee shall also include three (3) members from either the medical profession or the general public. The Secretary, with the advice of the Committee, shall promulgate rules and regulations for the operation of the Adult Protective Services Program.

(b) The Department shnll provide those services and activities as described in Section 3904 (h) and (e) of this chapter according to the regulations promulgated by the Secretary. In doing so, it may contract with other agencies for the provision of services, or it may provide directly any or all of those services.

(c) The Department shall utilize, to the extent possible, those resources of public and private nonprofit ageticies which are appropriate and available in providing protective services.

(d) The Department shall designate five (5) persons as the initial staff in beginning the delivery of protective services. They shall be as follows:

(1) One (1) person of at least the Social Worker III level as the overall supervisor of the protective services program.

(2) Three (3) persons of at least Social Worker II level, to function throughout the State.

(3) One (1) Social Worker I.

(e) Protective Service, as provided by this Chapter and the regultition promulgated pursuant to it shall he provided by the Department eight (8) months after the effective iliac of this Chapter.

(f) The Department :hall make continuing provisions in ouch county for the shelter of those persons who are determined to be in temporary need of such protection pursuant to Sections 3905, 3906 and 3907 of this Chapter. In providing this service, the Deportment may utilize existing resources swill as State institution:: it may contract for bed space in privtite facilities; tind it may utilize the resource of rest (family care and residential) home, for those clients not requiring medical care.

(a) The Department may also make provisions for securing emergency food, clothing, fuel allotments, and funds for those persons determined to be in need of such services, pursuant to Sections 3905, 3906, or 3907 of this Chapter, insofar as such Services are not available from other State-supported programs. To the extent that funds are available for this purpose, the Department may draw upon the funds budgeted to provide emergency services as needed and, where possible, reimbursement shall be made to the Department for the services provided which amounts shall revert to the general Fund of the State of Delaware.

§3904. Nature of Protective Services

(a) Definition: Protective services are services furnished to an infirm or incapacitated adult, with the person's consent or pursuant to Court order, to assist that person in performing the activities of daily living, in maintaining independent living arrangementx, or avoiding hazardous living conditions.

(4) To the extent that funds are available, the cost of protective services not paid from the resources of the client shall be debited to the Adult Protective Services budget.

§3905. Voluntary Protective Services

(a) Any qualified person may receive adult protective services, provided the person requests or affimatively consents to receive these services. If the person withdraws or refuses consent, the service shall not be provided unless by Court order.

(b) No person shall interfere with the provision of protective services to a person who requests or consents to receive such services or who has been ordered by Court to be provided with such services. In the event that Interference occurs on a continuing basis, the Department or the service recipient may petition the Court to enjoin such interference.

§3906. involuntary Protective Services

(a) If a person lacks the capacity to consent to receive protective services, these services may only be given in one or more of the following ways:

(1) by a police officer, on probable cause of death or immediate and irreparable physical injury, pursuant to Section 3907 of this Chapter.

(2) by the attorney general or a deputy attorney general of this State, pursuant to Section 3907 of this Chapter.

(3) by an emergency order of the Court, pursuant to Section 3908 of this Chapter. The Court shall order only that intervention which it finds to be the least restrictive of the person's liberty and rights, while consistent with his welfare and safety. The basis for such order and finding shall be stated in the opinion by the Court.

(4) by the appointment of a guardian pursuant to 12 Del. C. §3914.

(5) by a social service worker on probable cause of death or immediate and irreparable physical injury pursuant to Section 3907 of this Chapter.

§3907. Involuntary Protective Services on Probable Cause of Death or Immediate and Irreparable Physical Injury

(a) When probable cause exists to make a peace officer believe that a person will suffer immediate and irreparable physical injury or death if not immediately placed in a health care facility or other emergency shelter and that the person is incapable of giving consent, the peace officer may transport the person to an appropriate medical facility or emergency shelter.

(b) The peace officer shall immediately or at the beginning of the next working day notify the Department of such transfer and of the circumstances which necessitated it and any other relevant information.

(c) The Adult Protective Services unit shall investigate, and if involuntary protective services are needed on a continuing basis for a person so transported, proceedings shall be initiated for supplying such services pursuant to Section 3908 of this Chapter or pursuant to 12 Del. C. §3914.

§3908. Emergency Order for Involuntary Protective Service

(a) Upon petition by the Public Guardian or Adult Protective Services Unit of the Department of Health and Social Services, the Court of Chancery may issue an order authorizing the provision of protective services on an emergency basis to an adult person after finding on the record, based on a preponderance of the evidence that:

(1) the person is infirm or incapacitated, as defined in Section 3902 (a) and (f) of this Chapter;

(2) an emergency exists, as defined in Section 3902 (j) of this Chapter;

(3) the person lacks the capacity to consent to receive protective services;

(4) no person authorized by law or Court order to give consent for the person is available and willing to consent to emergency services; and

(5) there are compelling reasons for ordering services.

(b) In an emergency order, the Court is to consider:

(1) Only such protective services as are necessary to remove the conditions creating the emergency shall be ordered; and the Court shall specifically designate the approved services in its order.

(2) Protective services authorized by an emergency order shall not include hospitalization or change of residence unless the Court specifically finds such action is necessary and gives specific approval for such action in its order.

(3) Protective services may be provided through an emergency order only for one (1) week period upon a showing to the Court that continuation of the original order is necessary to remove the emergency.

(4) In its order, the Court shall appoint the petitioner or another interested person other than the service provider as temporary guardian of the person of the infirm. The temporary guardian shall assume responsibility for the person's welfare and be granted therein authority to give consent for the person for the approved protective services until the expiration of the order.

(5) The issuance of an emergency order and the appointment of a temporary guardian shall not deprive the person of any rights except to the extent validly provided for in the order of appointment.

(6) To implement an emergency order, the Court may authorize forcible entry of the premises of the person for the purpose of rendering protective services or transporting the person to another location for the provisions of such services. Such forcible entry may be authorized only after a showing to the Court that attempts to gain voluntary access to the premises have failed and forcible entry is necessary. The order of the Court shall include an order to the appropriate police department authorizing forcible entry.

(c) The petition for an emergency order shall set forth to the best of the petitioner's knowledge and belief:

(1) the name, address and interest of the petitioner;

(2) the name, address and approximate age of the person in need of protective services;

(3) if the information can be obtained and if any exist, the names and addresses of the spouse and next of kin of the person;

(4) the petitioner's attempts to contact the persons named in §3908 (c) (3) and their responses to the situation;

(5) the petitioner's reasonable belief, together with facts supportive thereof, as to the existence of the facts stated in §3908 (a) (1) through (4);

(1) facts showing petitioner's attempts to obtain the person's consent to the services and the outcomes of such attempts; and

(2) the proposed protective services.

(d) Actual notice of the filing of such petition, and other relevant information including the factual basis of the belief that emergency services are needed and a description of the exact services to be rendered, shall be given to the person, and at the Court's discretion, to his spouse, or if none, to his adult children, next of kin, or guardian if any. Notice to any parties other than the person in need of services may be waived by the Court if the petition avers with specificity that such notice would be detrimental to the infirm person. Such notice shall be given in language reasonably understandable by their Intended recipients at least twenty-four (24) hours prior to the hearing for emergency intervention, and longer if possible.

(e) Upon the filing of a petition for an emergency order for protective services, the Court shall hold a hearing within seven (7) days or immediately, if necessasry, pursuant to the provisions of §3909 of this Chapter.

(f) If the person continues to need protective services after the order and renewal provided for in subsection (b) (3) of this Section has expired, such services can only be rendered pursuant to the appointment of a guardian.

(g) The petitioner or other witness supplying information shall be immune from civil liability for damages as a result of filing the petition If he acted in good faith and believed the person to be in need of such assistance.

(h) The authority of the police departments of this State to transfer a person to a mental health facility in cases of a psychiatric emergency are not affected by this Act.

§3909. Hearing on Petition

(a) The hearing on a petition for involuntary protective services shall be held under the following conditions:

(1) The person needing protective services shall be present unless he has knowingly and voluntarily waived the right to be present or unless, because of physical or mental incapacity, he cannot be present without endangering his welfare. Waiver or incapacity may not be presumed from nonappearance but shall be determined on the basis of factual information supplied to the Court by counsel or a caseworker.

(2) The infirm person has the right to counsel whether or not he is present at the hearing. If the person is indigent or lacks the capacity to waive counsel, the Court shell appoint counsel. Where the person is indigent, the Court shall assess reasonable attorney's fees, such as are customarily charged by attorneys in this State for comparable services. To the extent that funding for this purpose is budgeted and available, such funds shall be drawn from the budget for Adult Protective Services upon an order directing payment signed by the Court.

(3) The infirm person has the right at his own expense or, if indigent, at the expense of the State, to secure an independent medical and/or psychological examination relevant to the issue involved in any hearing under this Section, and to have presented a report of this independent evaluation or to have the Court hear the evaluator's personal testimony as to his condition and circumstances as a part of the evidence presented in his behalf at the hearing. The infirm person shall have the right to have witnesses and evidence subpoenaed in his behalf and to have presented at the hearing such witnesses and evidence in suppport of his position as he desires.

(b) The Court shall record a statement of its findings in support of any order for emergency protective services.

§3910. Duty to Report

(a) Any person having reasonable cause to believe that an adult person is infirm or incapacitated as defined in Section 3902 of this Chapter shall report such information to the Department of Health and Social Services.

(b) Upon receipt of a report, the Department shall make a prompt and thorough evaluation to determine whether the person named is in need of protective services and what services are needed, unless the Department determines that the report is frivolous or is without a factual basis. The evaluation shall include a visit to the person and consultation with others having knowledge of the facts of the particular case. If outside professional assistance Is required in order for a caseworker to complete an evaluation, the Department may contract with professionals in order to provide such services.

Section 2. This Act shall be effective upon the appropriation of the General Assembly of sufficient funds for the purposes set forth in this Act.

Section 3. Funds appropriated for the purposes of this Act remaining unexpended on June 30, 1983, shall revert to the General Fund of the State of Delaware.

Section 4. Services set forth in this Chapter shall be provided to the extent that funding is appropriated and sufficient for such services.

Section 5. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such Invalidity shall not affect other provisions of applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 8. This Act shall become effective July 1, 1982.

Approved July 9, 1982.