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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS
    OF THE COMMONWEALTH
  • CHAPTER 19A DEPARTMENT OF ELDER AFFAIRS
  • Section 20 Lack of capacity to consent to protective services; hearings; emergency orders; placement or commitment

Section 20. (a) If the department or its designated agency has reasonable cause to believe that an elderly person is suffering from abuse and lacks the capacity to consent to the provision of protective services, the department or its designated agency may petition the court for a finding that the elderly person is incapable of consenting to the provision of protective services. Said petition shall set forth the specific facts upon which the department or the designated agency relied in making the determination. The court shall hold a hearing on the matter within fourteen days of the filing of the petition. The court shall give notice to the elderly person who is the subject of the petition at least five days prior to the date set for the hearing. The elderly person who is the subject of the petition shall have the right to be present, be represented by counsel, present evidence, and examine and cross-examine witnesses. If the elderly person who is the subject of the petition is indigent, the court shall appoint counsel to represent such elderly person. If the court determines that the elderly person lacks the capacity to retain counsel or waive the right to counsel, the court shall appoint a guardian ad litem to represent the interests of such elderly person. If, after hearing, the court determines, based on the preponderance of the evidence, that such elderly person has been abused, is in need of protective services and lacks the capacity to consent and no other person who is authorized to consent is available or willing to consent, the court may appoint a conservator, guardian or other person authorized to consent to the provision of protective services; provided, however, that the court shall establish the least restrictive form of fiduciary representation that will satisfy the needs of such elderly person. In addition to or in the alternative, the court may issue an order requiring the provision of services. The order shall contain a specific description of the services to be provided and insure that the least restrictive alternatives are utilized. An order for protective services for an elderly person pursuant to this subsection shall remain in effect for a period of six months, unless otherwise stipulated in such order. The court may, for good cause shown, extend an order for protective services. Such extension shall remain in effect for a period of six months, unless otherwise stipulated in such order.

(b) If an emergency exists and the department, its designated agency, a member of the immediate family or a caretaker has reasonable cause to believe that an elderly person is suffering from abuse and lacks the capacity to consent to the provision of protective services, said department, designated agency, member of the immediate family or caretaker may petition the court for an emergency order of protective services. The court shall give notice to the elderly person who is the subject of the petition at least twenty-four hours prior to the hearing. The court may dispense with notice upon finding that immediate and reasonable foreseeable physical harm to the individual or others will result from the twenty-four hour delay and that reasonable attempts have been made to give such notice. If the elderly person who is the subject of the petition is indigent, the court shall appoint counsel to represent such elderly person. If after the hearing, the court determines, based on the preponderance of the evidence, that the elderly person has been or is being abused, that an emergency exists, and that the elderly person lacks the capacity to consent to the provision of services, the court may order the provision of protective services on an emergency basis. The court shall order only those services necessary to remove the conditions creating the emergency and shall specially designate the authorized services in its order. If the court determines that the elderly person lacks the capacity to retain counsel or waive the right to counsel, the court shall appoint a guardian ad litem to represent the interest of such elderly person following the entry of such emergency order. The order for emergency protective services shall remain in effect for a period not to exceed fourteen days. Said order may be extended for an additional period not to exceed fourteen days if the court finds that the extension is necessary to remove the emergency.

(c) The court shall not order an institutional placement or change of residence unless it finds that no less restrictive alternative will meet the needs of the elderly person. No elderly person may be committed to a mental health facility pursuant to this chapter. The elderly person or his or her court-appointed representative, the department, or the designated agency may petition to have any order issued pursuant to subsection (a) or (b) set aside or modified at any time.