2012 Hawaii Revised Statutes
TITLE 20. SOCIAL SERVICES
346. Department of Human Services
346-231 Order for immediate protection.

Note

Part heading amended by L 2008, c 154, §1.

Cross References

Dependent elder abuse; suits by the State; civil penalties, see §28-94.

Maximum fee for appointed counsel and guardian ad litem, see §571-87.

Law Journals and Reviews

Elder Law Hawaii. 13 HBJ No. 13, at pg. 85.

Holding Hawai‘i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233.

§346-231 Order for immediate protection. (a) If the department believes that a person is a vulnerable adult and it appears probable that the vulnerable adult has incurred abuse or is in danger of abuse if immediate action is not taken and the vulnerable adult consents, or if the vulnerable adult does not consent and there is probable cause to believe that the vulnerable adult lacks the capacity to make decisions concerning the vulnerable adult's person, the department shall seek an order for immediate protection in accordance with this section.

(b) A finding of probable cause may be based in whole or in part upon hearsay evidence when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses who will be able to testify to facts from personal knowledge.

(c) Upon finding that the person is a vulnerable adult and that there is probable cause to believe that the vulnerable adult has incurred abuse or is in danger of abuse if immediate action is not taken and the vulnerable adult consents, or if the vulnerable adult does not consent and there is probable cause to believe that the vulnerable adult lacks the capacity to make decisions concerning the vulnerable adult's person, the court shall issue an order for immediate protection. This order may include:

(1) An authorization for the department to transport the person to an appropriate medical or care facility;

(2) An authorization for medical examinations;

(3) An authorization for emergency medical treatment; and

(4) Any other matters as may prevent immediate abuse, pending a hearing under section 346-232.

(d) The court may also make orders as may be appropriate to third persons, including temporary restraining orders, enjoining them from:

(1) Removing the vulnerable adult from the care or custody of another;

(2) Actions that would result in abuse of the vulnerable adult;

(3) Living at the vulnerable adult's residence;

(4) Contacting the vulnerable adult in person or by telephone;

(5) Selling, removing, or otherwise disposing of the vulnerable adult's personal property;

(6) Withdrawing funds from any bank, savings and loan association, credit union, or other financial institution, or from a stock account in which the vulnerable adult has an interest;

(7) Negotiating any instruments payable to the vulnerable adult;

(8) Selling, mortgaging, or otherwise encumbering any interest that the vulnerable adult has in real property;

(9) Exercising any powers on behalf of the vulnerable adult by representatives of the department, any court-appointed guardian or guardian ad litem, or any official acting on the vulnerable adult's behalf; and

(10) Engaging in any other specified act that, based upon the facts alleged, would constitute harm or present a danger of immediate harm to the vulnerable adult or would cause the loss of the vulnerable adult's property.

(e) Court orders under section 346-232 and this section may be obtained upon oral or written application by the department, without notice and without a hearing. Any oral application shall be reduced to writing within twenty-four hours. The court may issue its order orally; provided that it shall reduce the order to writing as soon as possible thereafter and in any case not later than twenty-four hours after the court received the written application. Certified copies of the application and order shall be personally served upon the vulnerable adult and any other person or entity affected by the order together with the notice of the order to show cause hearing in section 346-232.

(f) If a written order for immediate protection is issued, the department shall file a petition invoking the jurisdiction of the court under this part within twenty-four hours. [L 1989, c 381, pt of §1; am L 1990, c 144, §1 and c 234, §4; am L 2008, c 154, §13]

Case Notes

This section did not provide a jurisdictional basis for an order to void a will in another action sought by a party other than the department of human services where this chapter makes clear that this statute is for the benefit of the department and does not create a right to proceed for private litigants. 110 H. 8, 129 P.3d 511.