Transcript Using Contempt to Enforce Child Support Orders

Adult Protective Services
and Guardianship
Fundamentals of
Social Services Law
Institute of Government
The University of North Carolina at Chapel Hill
Adult Protective Services
GS 108A-99 (1975)
Disabled adult
Physically or mentally “incapacitated”
In need of protective services
Unable to perform or obtain essential services
Necessary to maintain physical, mental well-being
Due to incapacity
No willing, able, responsible person
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Adult Protective Services
Mandatory reporting
Any person
Reasonable cause
Disabled adult in need of protective services
County DSS
Determine whether disabled adult needs APS
What services are needed
Limited access to confidential info
HIPAA
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Adult Protective Services
Protective services
Must be provided by DSS if disabled adult consents
Evaluation of what services needed
Mobilization of essential services
Essential services
No clear mandate to provide
Payment for essential services
Disabled adult if financially able to pay
Provided at no cost if financially unable to pay
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APS Abuse, Neglect, Exploitation
Third, required “element” of APS?
State law vs. state policy
Abuse
Willful infliction physical pain, injury, mental anguish
Unreasonable confinement
Willful deprivation of services
Necessary to maintain mental & physical health
By caretaker
Family relationship, voluntary, contract
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APS Abuse, Neglect, Exploitation
Neglect
Not receiving necessary services from caretaker
Lives alone & unable to provide necessary services
Exploitation
Illegal or improper use of disabled adult or resources
Financial or personal exploitation
By caretaker or other person
For another’s profit or advantage
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APS Legal Proceedings
Special proceeding
District court
Disabled adult consents to APS
Enjoin caretaker who refuses to allow APS
Disabled adult lacks capacity to consent
Order for protective services
Order for emergency services
Inspect financial records & freeze assets
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APS Legal Proceedings
Protective services
Disabled adult needs APS & lacks capacity
Being abused, neglected, exploited
Notice served on disabled adult
Five days before hearing
Rule 17 GAL if lacks capacity to waive counsel
Clear, cogent, & convincing evidence
Hearing within 14 days
Guardianship review within 60 days
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APS Legal Proceedings
Emergency services
Vital functions, prevent death or irreparable harm
Physical custody of disabled adult
Disabled adult lacks capacity to consent
No responsible, willing, able caretaker to consent
Substantial danger of death or irreparable harm
Insufficient time (5 days)
Notice (at least 24 hr.) to disabled adult, etc.
Ex parte order
Reasonable cause standard
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APS Legal Proceedings
Financial exploitation
Notice & opportunity to be heard
Caretaker & financial institution
Reasonable cause to believe
Disabled adult lacks capacity & needs APS
No person willing & able to arrange for APS
Is being financially exploited by caretaker
DSS inspect disabled adult’s financial records
Freeze disabled adult’s financial assets
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Adult Abuse & Neglect (Criminal)
GS 14-32.3
Abuse, neglect, or exploitation
Disabled or elder adult in domestic setting
Caretaker
Problems
Vague
Better criminal remedies
Rarely used
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Adult Abuse & Neglect (Criminal)
GS 14-32.2
Any person
Willful or culpable negligence
Bodily injury or death
Physical injury
Violation of law protecting health or welfare
Patient of residential or health care facility
Hospital, nursing home, adult care home
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Adult Abuse & Neglect (Criminal)
Assault
Robbery
Larceny
False pretenses
Forgery
Extortion
Embezzlement
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Kidnapping
Rape & sex offense
Communicate threat
Credit card theft
Identity fraud
Spousal support
Parental support
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Adult Abuse (Civil)
Domestic violence
Intentionally cause bodily injury (attempt)
Fear of imminent serious bodily injury
Harassment
Personal relationship
Current or former spouse (boyfriend, girlfriend)
Parent & child or grandparent & grandchild (16+)
Current or former household member
Protective order
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Financial Exploitation (Civil)
Conversion
Unauthorized exercise of ownership or control
Property belonging to other person
Interferes with owner’s rights to property
Money judgment or return of property
Joint bank account
Co-owner may withdraw funds from account
Bank is not liable
Money belongs to person who made deposit
No gift to co-owner: conversion (Hutchins v. Dowell)
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Financial Exploitation (Civil)
Constructive fraud
Injury resulting from breach of fiduciary duty
Guardian or attorney-in-fact
Gifts under durable power of attorney
POA 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)
Fraud
False representation or concealment
Material existing fact (not opinion)
Promise without present intent to fulfill
Intent to deceive
Actual deception & injury
Consumer protection
Unfair trade practice
Home solicitation, pre-need funeral, etc.
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Financial Exploitation (Civil)
Undue influence
Subject to influence
Elderly, disabled, isolated, vulnerable, manipulable
Opportunity & disposition to influence
Involuntary act
More than mere persuasion
Incapacity
Specific mental capacity (marriage, deed, contract)
Incompetency determination not determinative
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Consent to Medical Treatment
Competent adult
Consent or refuse (GS 90-320, Cruzan)
Advance medical directive
Living will (if terminal & incurable or PVS)
Incompetent or incapacitated adult
Guardian
Health care power of attorney
Spouse or next of kin (GS 90-21.13)
Spouse or closest relatives (GS 90-322)
Physician
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Incompetency & Guardianship
GS Ch. 35A
Special proceeding before CSC
Standing: any person or human services agency
Attorney/GAL appointed for respondent
Respondent may retain counsel
Interim guardian if imminent risk
Jury trial requested by respondent or CSC
Multidisciplinary exam (MDE) on request or CSC
Appeal 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 incapacity
Resulting from mental
or physical impairment
or
Functional incapacity
Resulting from mental
or physical impairment
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Physical impairment
Insufficient unless results
in cognitive, mental, or
communicative
impairment
Mental impairment
Necessary 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
Reasoning
Evaluate & integrate
information
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Awareness
Perception, concentration,
memory
Deliberation
Consider values, facts,
options, consequences
Choice
Express, voluntary,
relatively stable &
consistent
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Functional Capacity
Manage affairs
Property
Business
Shelter
Nutrition
Health care
Personal hygiene
Safety
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Mental capacity
Rational judgment in
business & personal
affairs
Understand consequences of actions
Perform acts necessary
to care for property with
reasonable continuity
Exercise own will
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Incapacity
Sufficient capacity
Function adequately (not optimally)
Subjectively reasonable
Eccentric, foolish, unwise, poor choices insufficient
Nature, extent, & duration
Etiology (physical, mental, social, environment)
Severity & treatment
Temporary, episodic, chronic, degenerative
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Guardian for Incompetent Adult
Disinterested public agent guardian
Director of public human services agency
After diligent efforts to find appropriate individual
General guardian, person, estate
Ex officio
Mandatory training
Blanket bond
Status reports & accounting
Conflict & best interest
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Guardianship
Limited guardianship
Preserve rights within ward’s comprehension
Participation in decisionmaking to extent capable
Order
Determine nature & extent of incapacity
Limit guardian’s powers
Allow ward to retain specified rights & privileges
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Incompetency & Legal Rights
Retained
Vote
May be lost
Marry
Divorce
Contract
Will
Testify as witness
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Probably lost
Serve on jury
Serve as guardian
Drivers license
Legal action unless GAL
Significant financial &
health decisions
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Guardian of the Estate
Revoke POA
Expend income
Ward & dependents
Legal claims
Prosecute, defend &
settle
Medicaid trust
Medicaid CSRA
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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
Custody
Ward & personal effects
Residence
In-state preferred
Not treatment facility
Community facility
Employment
Rehabilitation
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Care & treatment
Consent
Medical, legal, etc.
Natural death
Not sterilization
(unless court order)
Can’t file for divorce
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Guardian of the Person
Decision-making
Defer to ward
To extent capable
Substituted judgment
What would ward do?
Best interest
Reasonable person?
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No liability
Consent to medical care
Good faith, not negligent
Consent to services
Damage from acts or
negligence of others
Ward’s debts/expenses
Reimbursed from estate
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Guardianship
Removal
Neglect
Mismanagement
Breach of fiduciary duty
Conflict
Termination
Ward’s death
Competency restored
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Restoring competency
Standing
Guardian
Ward
Interested person
Attorney/GAL
Jury trial
Preponderance of evidence
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Adult Protective Services
and Guardianship
Fundamentals of
Social Services Law
Institute of Government
The University of North Carolina at Chapel Hill