2015 Arkansas Code
Title 9 - Family Law
Subtitle 2 - Domestic Relations
Chapter 20 - Adult Maltreatment Custody Act
§ 9-20-103 - Definitions.

As used in this chapter:

(1) (A) "Abuse" means with regard to any long-term care facility resident or any person who is at the Arkansas State Hospital an act by a caregiver that falls into any of the following categories:

(i) Any intentional and unnecessary physical act that inflicts pain on or causes injury to an endangered adult or an impaired adult, excluding court-ordered medical care or medical care requested by an endangered adult, an impaired adult, or a person who is legally authorized to make a medical decision on behalf of an endangered adult or an impaired adult;

(ii) Any intentional act that a reasonable person would believe subjects an endangered adult or an impaired adult, regardless of age, ability to comprehend, or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm, excluding necessary care and treatment provided in accordance with generally recognized professional standards of care;

(iii) Any intentional threat that a reasonable person would find credible and nonfrivolous to inflict pain on or cause injury to an endangered adult or an impaired adult except in the course of medical treatment or for justifiable cause; or

(iv) Any willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.

(B) "Abuse" means with regard to any person who is not a long-term care facility resident or at the Arkansas State Hospital:

(i) Any intentional and unnecessary physical act that inflicts pain on or causes injury to an endangered adult or an impaired adult;

(ii) Any intentional act that a reasonable person would believe subjects an endangered adult or an impaired adult, regardless of age, ability to comprehend, or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm; or

(iii) Any intentional threat that a reasonable person would find credible and nonfrivolous to inflict pain on or cause injury to an endangered adult or an impaired adult except in the course of medical treatment or for justifiable cause;

(2) "Adult maltreatment" means abuse, exploitation, neglect, physical abuse, or sexual abuse of an adult;

(3) "Caregiver" means a related person or an unrelated person, an owner, an agent, a high managerial agent of a public or private organization, or a public or private organization that has the responsibility for the protection, care, or custody of an endangered adult or an impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the circuit court;

(4) "Custodian" means the Department of Human Services while the department is exercising a seventy-two-hour hold on an endangered or impaired person or during the effective dates of an order granting custody to the department;

(5) "Department" means the Department of Human Services;

(6) "Endangered adult" means:

(A) An adult eighteen (18) years of age or older who:

(i) Is found to be in a situation or condition that poses a danger to himself or herself; and

(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition; or

(B) An adult resident of a long-term care facility who:

(i) Is found to be in a situation or condition that poses an imminent risk of death or serious bodily harm to that person; and

(ii) Demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition;

(7) "Exploitation" means the:

(A) Illegal or unauthorized use or management of an endangered person's or an impaired person's funds, assets, or property;

(B) Use of an adult endangered person's or an adult impaired person's power of attorney or guardianship for the profit or advantage of one's own self or another;

(C) Fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an endangered or an impaired person or long-term care facility resident for monetary or personal benefit, profit, or gain or that results in depriving the person or resident of rightful access to or use of benefits, resources, belongings, or assets; or

(D) Misappropriation of property of a long-term care facility resident;

(8) (A) "Fiduciary" means a person or entity with the legal responsibility to:

(i) Make decisions on behalf of and for the benefit of another person; and

(ii) Act in good faith and with fairness.

(B) "Fiduciary" includes without limitation a trustee, a guardian, a conservator, an executor, an agent under financial power of attorney or healthcare power of attorney, or a representative payee;

(9) "Imminent danger to health or safety" means a situation in which death or serious bodily harm could reasonably be expected to occur without intervention;

(10) (A) "Impaired adult" means a person eighteen (18) years of age or older who, as a result of mental or physical impairment, is unable to protect himself or herself from abuse, sexual abuse, neglect, or exploitation.

(B) For purposes of this chapter, residents of a long-term care facility are presumed to be impaired persons.

(C) For purposes of this chapter, a person with a mental impairment does not include a person who is in need of acute psychiatric treatment, chronic mental health treatment, alcohol or drug abuse treatment, or casework supervision by mental health professionals.

(D) For purposes of this chapter, an adult who has a representative payee appointed for that adult by the Social Security Administration or other authorized agency is presumed to be an impaired adult in relation to adult maltreatment through financial exploitation;

(11) (A) "Less-than-custody order" means an emergency order issued by a circuit court of the State of Arkansas on petition or motion of the department that makes specific orders for the protection of an endangered or impaired adult but does not give the department custody over an endangered or impaired adult.

(B) A less-than-custody order may specify appropriate safeguards, including without limitation:

(i) Prohibiting a legal custodian or guardian of an endangered or impaired adult from having contact with the endangered or impaired adult;

(ii) Prohibiting a legal custodian, guardian, or holder of a power of attorney of an endangered or impaired adult from withdrawing funds from one (1) or more accounts of the endangered or impaired adult or otherwise accessing the assets of the endangered or impaired adult; or

(iii) Requiring the endangered or impaired adult to accept services as directed by the court;

(12) "Long-term care facility" means:

(A) A nursing home;

(B) A residential care facility;

(C) A post-acute head injury retraining and residential facility;

(D) An assisted living facility;

(E) An intermediate care facility for individuals with developmental disabilities; or

(F) Any facility that provides long-term medical or personal care;

(13) "Long-term care facility resident" means a person eighteen (18) years of age or older living in a long-term care facility;

(14) "Long-term care facility resident maltreatment" means abuse, exploitation, neglect, physical abuse, or sexual abuse of an adult resident of a long-term care facility;

(15) "Maltreated adult" means an adult who has been abused, exploited, neglected, physically abused, or sexually abused;

(16) "Misappropriation of property of a long-term care facility resident" means the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a long-term care facility resident's belongings or money without the long-term care facility resident's consent;

(17) "Neglect" means:

(A) An act or omission by an endangered or an impaired adult, for example, self-neglect; or

(B) An act or omission by a caregiver responsible for the care and supervision of an endangered or an impaired adult constituting negligent failure to:

(i) Provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services to an endangered or an impaired adult;

(ii) Report health problems or changes in health problems or changes in the health condition of an endangered or an impaired adult to the appropriate medical personnel;

(iii) Carry out a prescribed treatment plan; or

(iv) Provide to an adult resident of a long-term care facility goods or services necessary to avoid physical harm, mental anguish, or mental illness as defined in regulations promulgated by the Office of Long-Term Care of the Division of Medical Services of the Department of Human Services;

(18) (A) "Physical injury" means the impairment of a physical condition or the infliction of substantial pain.

(B) If the person is an endangered or an impaired adult, there is a presumption that any physical injury resulted in the infliction of substantial pain;

(19) (A) "Protective services" means services to protect an endangered or an impaired adult from:

(i) Self-neglect or self-abuse; or

(ii) Abuse or neglect by others.

(B) Protective services may include:

(i) Evaluation of the need for services;

(ii) Arrangements or referrals for appropriate services available in the community;

(iii) Assistance in obtaining financial benefits to which the person is entitled; or

(iv) As appropriate, referrals to law enforcement or prosecutors;

(20) "Resident of a long-term care facility" means a person eighteen (18) years of age or older living in a long-term care facility;

(21) "Serious bodily harm" means physical abuse, sexual abuse, physical injury, or serious physical injury;

(22) "Serious physical injury" means physical injury to an endangered or an impaired adult that:

(A) Creates a substantial risk of death; or

(B) Causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ;

(23) "Sexual abuse" means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined in § 5-14-101, with another person who is not the actor's spouse and who is incapable of consent because he or she is mentally defective, mentally incapacitated, or physically helpless; and

(24) "Subject of the report" means:

(A) The endangered or an impaired adult;

(B) The adult's legal guardian; and

(C) The offender.