2006 Delaware Code - CHAPTER 39 — ADULT PROTECTIVE SERVICES

§ 3901. Legislative intent.

The General Assembly 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 General Assembly, therefore, intends through this chapter 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. (63 Del. Laws, c. 384, § 1.)

§ 3902. Definitions.

As used in this chapter:

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

(2) "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.

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

(4) "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 the person's 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.

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

(6) "Incapacitated person" means a person for whom a guardian of person or property, or both, shall be appointed, under § 3914(a) of Title 12.

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

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

(9) "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.

(10) "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 impaired person, such as insufficient food supply, inadequate shelter, threatened or actual abuse or utility shut-off. Emergency does not mean psychiatric emergency as provided for in Chapter 50 of Title 16.

(11) "Emergency services" are protective services furnished to a person in an emergency.

(12) "Public Guardian" means the Office of the Public Guardian.

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

(14) "Court" means the Court of Chancery of the State.

(15) "Department" means the Department of Health and Social Services of the State.

(16) "Abuse" means:

a. Physical abuse by unnecessarily inflicting pain or injury on an infirm adult; or

b. A pattern of emotional abuse, which includes, but is not limited to, ridiculing or demeaning an infirm adult making derogatory remarks to an infirm adult or cursing or threatening to inflict physical or emotional harm on an infirm adult.

(17) "Caregiver" means any adult who has assumed the permanent or temporary care, custody or responsibility for the supervision of an infirm adult.

(18) "Mistreatment" means the failure to provide appropriate physical or emotional care to an infirm adult, including the inappropriate use of medications, isolation or physical or chemical restraints on or of an infirm adult.

(19) "Neglect" means:

a. Lack of attention by a caregiver to physical needs of an infirm adult including but not limited to toileting, bathing, meals and safety;

b. Failure by a caregiver to carry out a treatment plan prescribed by a health care professional for an infirm adult; or

c. Intentional and permanent abandonment or desertion in any place of an infirm adult by a caregiver who does not make reasonable efforts to ensure that essential services, as defined in this section, will be provided for said infirm adult. (63 Del. Laws, c. 384, § 1; 66 Del. Laws, c. 49, § 1; 68 Del. Laws, c. 42, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 99, §§ 1, 2; 72 Del. Laws, c. 89, §§ 1-3.)

§ 3903. Establishment of protective services system.

(a) The Secretary of the Department of Health and Social Services shall appoint, within 6 weeks of July 1, 1982, 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. The committee shall consist of representatives of the Office of the Public Guardian, the Division of Economic Services, the Division of Services for Aging and Adults with Physical Disabilities, the Division of Developmental Disabilities Services, the Division of Substance Abuse and 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 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 shall provide those services and activities as described in subsections (b) and (c) of § 3904 of this title 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 agencies which are appropriate and available in providing protective services.

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

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

(2) Three persons of at least social worker II level, to function throughout the State.

(3) One social worker I.

(e) Protective services as provided by this chapter and the regulation promulgated pursuant to it shall be provided by the Department 8 months after July 1, 1982.

(f) The Department shall make continuing provisions in each county for the shelter of those persons who are determined to be in temporary need of such protection pursuant to §§ 3905, 3906 and 3907 of this title. In providing this service, the Department may utilize existing resources such as state institutions; it may contract for bed space in private facilities; and it may utilize the resources of rest (family care and residential) homes for those clients not requiring medical care.

(g) 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 § 3905, 3906 or 3907 of this title, 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. (63 Del. Laws, c. 384, § 1; 64 Del. Laws, c. 467, § 3; 69 Del. Laws, c. 345, § 5; 73 Del. Laws, c. 41, § 1; 73 Del. Laws, c. 97, § 8.)

§ 3904. Nature of protective services; costs.

(a) Protective services are services furnished to an infirm or incapacitated adult in an emergency situation as defined in § 3902 of this title.

(b) Protective services include, but are not limited to:

(1) Preliminary investigation and evaluation of reports of adults needing protective services, including a comprehensive social evaluation.

(2) Medical and psychiatric evaluation, if necessary.

(3) Social casework for the purpose of planning and providing services needed by the adult client.

(4) Maintenance of the person in the person's own home through provision of home health care, homemaker services, day care and chore services.

(5) Assistance in obtaining out-of-home services such as respite care, emergency housing and placement in a rest-residential home.

(6) Referral for legal assistance, information on establishing power of attorney or representative payee arrangements and on guardianship of person or property; referral to the Office of Public Guardian; referral for medical assistance.

(7) Transportation to and from service providers, if necessary.

(8) Other services consistent with this chapter.

(c) In order to provide the services listed in subsection (b) of this section, the following services will be performed by the adult protective services unit:

(1) Informing and educating the citizens of the State on the needs of protective service clients and the services available to them.

(2) Accepting and processing all referrals on, or applications from, adults in need of protective services.

(3) Home visits to all clients, if necessary.

(4) Counseling with clients to assist them to accept needed services voluntarily.

(5) Referring clients to other service-providing agencies, arranging for visits and following up to determine that needed services were delivered by those agencies.

(6) Maintaining case records and statistics.

(7) Contracting with existing public and private agencies and professionals for the provision of services not directly provided by the Department.

(8) Provision for shelter of those persons in temporary need of such protection, pursuant to § 3903(f) of this title.

(9) Provisions for emergency food, clothing, fuel allotments and funds for persons determined to be in need of such services.

(10) Arranging for the development of a system, in cooperation with public and private community agencies, to insure that emergencies requiring adult protection services will be handled on a coordinated basis.

(d)(1) The cost of services provided by the State which are voluntarily accepted by the protective services client shall be borne by the client himself or herself, insofar as the client is able to pay for them from the client's own resources, insurance programs, Medicare, Medicaid or similar programs. The Department shall determine the client's ability to pay for services from a fee schedule and income criteria which shall be established by the Secretary under the rulemaking authority provided by this chapter. For a client aggrieved by a decision regarding fees, a caseworker's determination may be appealed to the program administrator.

(2) In the event that services are voluntarily accepted and no payment is made by a client whose resources are adequate for such payment, the State may take action in the Court of Chancery to obtain reimbursement; provided, that efforts have been made to collect the account through other means.

(3) Where protective services are provided under Court order, the Court may authorize reasonable payment to the Department from the resources of the person if the Department can prove to the satisfaction of the Court that payment may be made without endangering the welfare or interests of the person served.

(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. (63 Del. Laws, c. 384, § 1; 66 Del. Laws, c. 49, § 2; 70 Del. Laws, c. 186, § 1.)

§ 3905. Voluntary protective services.

(a) Any qualified person may receive adult protective services, provided the person requests or affirmatively 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. (63 Del. Laws, c. 384, § 1.)

§ 3906. Involuntary protective services.

If a person lacks the capacity to consent to receive protective services, these services may only be given in 1 or more of the following ways:

(1) By a police officer, on probable cause of death or immediate and irreparable physical injury, pursuant to § 3907 of this title.

(2) By the Attorney General or a Deputy Attorney General of this State, pursuant to § 3907 of this title.

(3) By an emergency order of the Court, pursuant to § 3908 of this title. 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 the person's 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 § 3914 of Title 12.

(5) By a social service worker on probable cause of death or immediate and irreparable physical injury pursuant to § 3907 of this title. (63 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.)

§ 3907. 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 § 3908 of this title or pursuant to § 3914 of Title 12. (63 Del. Laws, c. 384, § 1.)

§ 3908. Emergency order for protective services.

(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 subdivisions (1) and (6) of § 3902 of this title;

(2) An emergency exists, as defined in subdivision (10) of § 3902 of this title;

(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 for a maximum of 90 days upon a showing to the Court that continuation of the original order is necessary to remove the emergency. During this period the infirm person may petition the Court to have the emergency order removed.

(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 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 paragraph (3) of this subsection 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 paragraphs (1) through (4) of subsection (a) of this section;

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

(7) The proposed protection 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 the person's spouse, or if none, to the person's 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 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 7 days or immediately, if necessary, pursuant to § 3909 of this title.

(f) If the person continues to need protective services after the order and renewal provided for in paragraph (3) of subsection (b) 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 the petitioner 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 chapter.

(i) Whenever the Court of Chancery finds, based upon a verified petition, affidavit or other evidentiary materials, that probable cause exists to believe that: (1) a person is infirm or incapacitated, as defined in subdivisions (1) and (6) of § 3902 of this title; (2) that an emergency exists, as defined in subdivision (10) of § 3902 of this title; (3) that the emergency threatens serious harm to such person which harm may occur before a hearing on the petition for an emergency order may be held; (4) that the person is located in the building or premises described; and (5) that entry or access to said building or premises is being denied, the Court may issue an order for entry. The order for entry shall be signed by the Court, and shall contain the address of the building or premises where the person is located and the name of the person reported to be in need of protective services. The order for entry shall command that entry to the building or premises where the person is located be permitted for the purpose of seeing or interviewing, assessing and counseling the person named in the order. The order for entry shall permit entry on a day certain, which shall be set forth in the order. Nothing contained in this subsection shall in any way be construed to limit or restrict entry where the consent of the owner, lessor or lawful occupant is obtained. Whenever a member of the Court of Chancery is unavailable, any judge of the Superior Court may exercise the powers conferred by this subsection. (63 Del. Laws, c. 384, § 1; 66 Del. Laws, c. 49, §§ 3, 4; 67 Del. Laws, c. 185, § 1; 70 Del. Laws, c. 186, § 1.)

§ 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 the person has knowingly and voluntarily waived the right to be present or unless, because of physical or mental incapacity, the person cannot be present without endangering the person's 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 the person is present at the hearing. If the person is indigent or lacks the capacity to waive counsel, the Court shall 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 the infirm person's 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 the infirm person's condition and circumstances as a part of the evidence presented in the infirm person's behalf at the hearing. The infirm person shall have the right to have witnesses and evidence subpoenaed in the infirm person's behalf and to have presented at the hearing such witnesses and evidence in support of the infirm person's position as the infirm person desires.

(b) The Court shall record a statement of it findings in support of any order for emergency protective services. (63 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.)

§ 3910. Duty to report.

(a) Any person having reasonable cause to believe that an adult person is infirm or incapacitated as defined in § 3902 of this title and is in need of protective services as defined in § 3904 of this title 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 may 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.

(c) Anyone participating in good faith in the making of a report pursuant to this chapter shall have immunity from any liability, civil or criminal that might otherwise exist and such immunity shall extend to participation in any judicial proceedings resulting from such report. (63 Del. Laws, c. 384, § 1; 66 Del. Laws, c. 49, §§ 5-7.)

§ 3911. Adult under treatment by spiritual means not abused, mistreated, neglected, infirm or incapacitated.

Nothing in this chapter shall be construed to mean an adult is abused, mistreated, neglected, infirm or incapacitated or in need of protective services for the sole reason the person relies upon, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination; nor shall anything in this chapter be construed to authorize or require any medical care or treatment over the implied or express objections of said person. (64 Del. Laws, c. 103, § 1; 68 Del. Laws, c. 42, § 3; 70 Del. Laws, c. 186, § 1.)

§ 3912. Confidentiality of records.

(a) All records and information in the possession of Adult Protective Services or anyone providing service to an adult protective services client and the client's relatives shall be deemed confidential, and shall be disclosed only pursuant to an appropriate court order, or pursuant to the consent of the recipient of the services, where the recipient is legally competent to so consent. Notwithstanding the foregoing, disclosure shall not be unlawful when necessary for purposes directly connected with the administration of adult protective services, or when the identity of the recipient or recipients of such services is not revealed by the disclosure, such as in the case of disclosure of statistics or other such summary information.

(b) Violation of this section is an unclassified misdemeanor. The Superior Court shall have jurisdiction over violations of this section.

(c) Any staff person of adult protective services or anyone providing service to an adult protective services client who violates these provisions and improperly discloses confidential information shall immediately be removed or dismissed. (67 Del. Laws, c. 185, § 2; 70 Del. Laws, c. 186, § 1.)

§ 3913. Violations.

(a) Any person who knowingly or recklessly abuses, neglects, exploits or mistreats an infirm adult shall be guilty of a class A misdemeanor.

(b) Any person who knowingly or recklessly exploits an infirm adult by using the infirm adult's resources shall be guilty of a class A misdemeanor where the value of the resources is less than $500 and a class G felony where the value of the resources is $500 or more but less than $5,000. If the value of the resources is $5,000 or more but less than $10,000, the person shall be guilty of a class E felony. If the value of the resources is $10,000 or more but less than $50,000, the person shall be guilty of a class D felony and if the value of the resources is $50,000 or more the person shall be guilty of a class C felony. Any subsequent conviction under this subsection shall be treated as a class C felony regardless of the amount of resources exploited.

(c) Any person who knowingly or recklessly abuses, neglects, exploits or mistreats an infirm adult, and causes bodily harm, permanent disfigurement or permanent disability shall be guilty of a class D felony. Where the abuse, mistreatment or neglect results in death, such person shall be guilty of a class A felony. (68 Del. Laws, c. 42, § 2; 72 Del. Laws, c. 89, §§ 4, 5.)