Petitions for findings of incapacity; emergency orders; warrants
Section 7. (a) If the commission, the general counsel, the department of mental health or the department of public health, has reasonable cause after initiation of an investigation to believe that a disabled person is suffering from abuse and lacks the capacity to consent to the provision of protective services, such commission, counsel or department may petition the court for a finding that the disabled person is incapable of consenting to the provision of protective services. Said petition shall set forth the specific facts upon which said commission, counsel or department relied in making such 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 disabled person who is the subject of the petition at least five days prior to the date set for the hearing. The disabled 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 disabled person who is the subject of the petition is indigent, the court shall appoint counsel to represent such disabled person. If the court determines that the disabled person lacks the capacity to waive the right to counsel, the court shall appoint a guardian ad litem to represent the interests of such disabled person. If, after hearing, the court determines, based upon a preponderance of the evidence, that such disabled 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 disabled 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.
(b) If an emergency exists and said commission, counsel or department, a member of the immediate family or a caretaker has reasonable cause to believe that a disabled person is suffering from abuse and lacks the capacity to consent to the provision of protective services, said commission, counsel or department, 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 disabled 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 after the hearing, the court determines, based upon a preponderance of the evidence, that the disabled person has been or is being abused, that an emergency exists, and that the disabled 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 specifically designate the authorized services in its order. The order for emergency protective services shall remain in effect for a period not to exceed seventy-two hours. Said order may be extended for an additional seventy-two hour period if the court finds that such 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 disabled person. No disabled person may be committed to a mental health facility pursuant to this section. The disabled person or his court appointed representative, said commission, counsel or department may petition to have any order issued pursuant to subsection (a) or (b) set aside or modified at any time.
(d) The courts of the commonwealth are hereby authorized to issue warrants for access to a disabled person upon application of the commission or any state or local law enforcement officer, where there is reasonable cause to believe that a disabled person is subject to abuse and access to such disabled person has been denied unreasonably to the commission or such law enforcement officers for the purpose of investigating the allegation of abuse.