adult protective services and guardianship fundamentals of social services law institute of...

Adult Protective Services and Guardianship

Fundamentals ofSocial Services Law

Institute of GovernmentThe University of North Carolina at

Chapel Hill

Institute of Government, UNC-Chapel Hill © 2004

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Adult Protective Services

GS 108A-99 (1975)Disabled adultPhysically or mentally “incapacitated”

In need of protective servicesUnable to perform or obtain essential services

Necessary to maintain physical, mental well-being

Due to incapacityNo willing, able, responsible person


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Mandatory reportingAny personReasonable causeDisabled adult in need of protective services

County DSSDetermine whether disabled adult needs APSWhat services are neededLimited access to confidential info

HIPAA


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Protective servicesMust be provided by DSS if disabled adult consents

Evaluation of what services neededMobilization of essential services

Essential servicesNo clear mandate to providePayment for essential services

Disabled adult if financially able to payProvided at no cost if financially unable to pay


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APS Abuse, Neglect, ExploitationThird, required “element” of APS?State law vs. state policy

AbuseWillful infliction physical pain, injury, mental anguishUnreasonable confinementWillful deprivation of services

Necessary to maintain mental & physical health

By caretakerFamily relationship, voluntary, contract


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APS Abuse, Neglect, ExploitationNeglectNot receiving necessary services from caretakerLives alone & unable to provide necessary services

ExploitationIllegal or improper use of disabled adult or resources

Financial or personal exploitationBy caretaker or other personFor another’s profit or advantage


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APS Legal Proceedings

Special proceedingDistrict court

Disabled adult consents to APSEnjoin caretaker who refuses to allow APS

Disabled adult lacks capacity to consentOrder for protective servicesOrder for emergency servicesInspect financial records & freeze assets


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Protective servicesDisabled adult needs APS & lacks capacity

Being abused, neglected, exploitedNotice served on disabled adult

Five days before hearingRule 17 GAL if lacks capacity to waive counsel

Clear, cogent, & convincing evidenceHearing within 14 daysGuardianship review within 60 days


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Emergency servicesVital functions, prevent death or irreparable harm

Physical custody of disabled adultDisabled adult lacks capacity to consent

No responsible, willing, able caretaker to consent

Substantial danger of death or irreparable harmInsufficient time (5 days)

Notice (at least 24 hr.) to disabled adult, etc.Ex parte orderReasonable cause standard


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Financial exploitationNotice & opportunity to be heard

Caretaker & financial institutionReasonable cause to believe

Disabled adult lacks capacity & needs APSNo person willing & able to arrange for APSIs being financially exploited by caretaker

DSS inspect disabled adult’s financial recordsFreeze disabled adult’s financial assets


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Adult Abuse & Neglect (Criminal)GS 14-32.3Abuse, neglect, or exploitation

Disabled or elder adult in domestic setting

CaretakerProblems

VagueBetter criminal remediesRarely used


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Adult Abuse & Neglect (Criminal)GS 14-32.2Any person Willful or culpable negligence Bodily injury or death

Physical injury Violation of law protecting health or welfare

Patient of residential or health care facilityHospital, nursing home, adult care home


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Adult Abuse & Neglect (Criminal)AssaultRobberyLarcenyFalse pretenses ForgeryExtortionEmbezzlement

Kidnapping Rape & sex offenseCommunicate threatCredit card theftIdentity fraudSpousal supportParental support


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Adult Abuse (Civil)

Domestic violenceIntentionally cause bodily injury (attempt)

Fear of imminent serious bodily injuryHarassment

Personal relationshipCurrent or former spouse (boyfriend, girlfriend)

Parent & child or grandparent & grandchild (16+)

Current or former household memberProtective order


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Financial Exploitation (Civil)ConversionUnauthorized exercise of ownership or control

Property belonging to other personInterferes with owner’s rights to property

Money judgment or return of propertyJoint bank account

Co-owner may withdraw funds from accountBank is not liableMoney belongs to person who made depositNo gift to co-owner: conversion (Hutchins v. Dowell)


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Financial Exploitation (Civil)Constructive fraudInjury resulting from breach of fiduciary duty

Guardian or attorney-in-fact

Gifts under durable power of attorneyPOA may expressly authorize gift to AIF POA doesn’t authority or limit gift by AIF

AIF may gift to others per personal giving history

Court must approve gift to AIF or AIF creditors

Is it a gift? (Graham v. Morrison)


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Financial Exploitation (Civil)FraudFalse representation or concealmentMaterial existing fact (not opinion)

Promise without present intent to fulfill

Intent to deceiveActual deception & injury

Consumer protectionUnfair trade practiceHome solicitation, pre-need funeral, etc.


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Financial Exploitation (Civil)Undue influenceSubject to influence

Elderly, disabled, isolated, vulnerable, manipulable

Opportunity & disposition to influenceInvoluntary act

More than mere persuasion

IncapacitySpecific mental capacity (marriage, deed, contract)Incompetency determination not determinative


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Consent to Medical TreatmentCompetent adultConsent or refuse (GS 90-320, Cruzan)

Advance medical directiveLiving will (if terminal & incurable or PVS)

Incompetent or incapacitated adultGuardianHealth care power of attorneySpouse or next of kin (GS 90-21.13)Spouse or closest relatives (GS 90-322)Physician


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Incompetency & GuardianshipGS Ch. 35ASpecial proceeding before CSCStanding: any person or human services agencyAttorney/GAL appointed for respondent

Respondent may retain counselInterim guardian if imminent riskJury trial requested by respondent or CSCMultidisciplinary exam (MDE) on request or CSCAppeal to Superior Court


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Incompetency

Lacks sufficient capacity Due to mental illness, mental retardation, inebriety, senility, cerebral palsy, epilepsy, disease, injury, or similar cause or condition

To manage own affairs or To make or communicate important decisions Regarding person, family, property


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Incompetency

Cognitive incapacityResulting from mental or physical impairmentor

Functional incapacityResulting from mental or physical impairment

Physical impairmentInsufficient unless results in cognitive, mental, or communicative impairment

Mental impairmentNecessary but insufficient without resulting cognitive, communicative, or functional incapacity


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Cognitive Capacity

Rational ability Make decisions Cognitive process not decisional outcome

Comprehension Understand & assimilate information

ReasoningEvaluate & integrate information

AwarenessPerception, concentration, memory

DeliberationConsider values, facts, options, consequences

ChoiceExpress, voluntary, relatively stable & consistent


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Functional Capacity

Manage affairsPropertyBusinessShelterNutritionHealth carePersonal hygieneSafety

Mental capacityRational judgment in business & personal affairs Understand conse-quences of actionsPerform acts necessary to care for property with reasonable continuityExercise own will


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Incapacity

Sufficient capacityFunction adequately (not optimally)

Subjectively reasonableEccentric, foolish, unwise, poor choices insufficient

Nature, extent, & durationEtiology (physical, mental, social, environment)Severity & treatmentTemporary, episodic, chronic, degenerative


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Guardian for Incompetent AdultDisinterested public agent guardianDirector of public human services agency

After diligent efforts to find appropriate individual

General guardian, person, estateEx officioMandatory trainingBlanket bondStatus reports & accountingConflict & best interest


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Guardianship

Limited guardianshipPreserve rights within ward’s comprehension

Participation in decisionmaking to extent capable

OrderDetermine nature & extent of incapacityLimit guardian’s powers

Allow ward to retain specified rights & privileges


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Incompetency & Legal RightsRetainedVote

May be lostMarryDivorceContractWillTestify as witness

Probably lostServe on juryServe as guardianDrivers licenseLegal action unless GALSignificant financial & health decisions


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Guardian of the Estate

Revoke POAExpend incomeWard & dependents

Legal claimsProsecute, defend & settle

Medicaid trustMedicaid CSRA

Expend principal*Real property*Sell or mortgage*Lease (more than 3 yrs)*

Personal property Sell ($1500+ cumulative)*

Revocable trust*Gifts & advancement*


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Guardian of the Person

CustodyWard & personal effects

ResidenceIn-state preferredNot treatment facilityCommunity facility

EmploymentRehabilitation

Care & treatmentConsentMedical, legal, etc.Natural deathNot sterilization (unless court order)Can’t file for divorce


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Guardian of the Person

Decision-makingDefer to wardTo extent capable

Substituted judgmentWhat would ward do?

Best interestReasonable person?

No liabilityConsent to medical careGood faith, not negligent

Consent to servicesDamage from acts or negligence of others

Ward’s debts/expensesReimbursed from estate


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Guardianship

RemovalNeglectMismanagementBreach of fiduciary dutyConflict

TerminationWard’s deathCompetency restored

Restoring competencyStandingGuardianWardInterested person

Attorney/GALJury trialPreponderance of evidence

Adult Protective Services and Guardianship

Fundamentals ofSocial Services Law

Institute of GovernmentThe University of North Carolina at

Chapel Hill

adult protective services and guardianship fundamentals of social services law institute of...

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