Adult Protective Services and Guardianship

1. Adult Protective Services and Guardianship Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. Assault Robbery Larceny False pretenses Forgery Extortion Embezzlement Kidnapping Rape & sex offense Communicate threat Credit card theft Identity fraud Spousal support Parental support Adult Abuse & Neglect (Criminal)

14. 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

15. 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)

16. 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)

17. 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.

18. 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

19. 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

20. 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

21. 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

22. Cognitive incapacity Resulting from mental or physical impairment or Functional incapacity Resulting from mental or physical impairment Physical impairment Insufficient unless results in cognitive, mental, or communicative impairment Mental impairment Necessary but insufficient without resulting cognitive, communicative, or functional incapacity Incompetency

23. Rational ability Make decisions Cognitive process not decisional outcome Comprehension Understand & assimilate information Reasoning Evaluate & integrate information Awareness Perception, concentration, memory Deliberation Consider values, facts, options, consequences Choice Express, voluntary, relatively stable & consistent Cognitive Capacity

24. Manage affairs Property Business Shelter Nutrition Health care Personal hygiene Safety Mental capacity Rational judgment in business & personal affairs Understand conse-quences of actions Perform acts necessary to care for property with reasonable continuity Exercise own will Functional Capacity

25. 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

26. 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

27. 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

28. Retained Vote May be lost Marry Divorce Contract Will Testify as witness Probably lost Serve on jury Serve as guardian Drivers license Legal action unless GAL Significant financial & health decisions Incompetency & Legal Rights

29. Revoke POA Expend income Ward & dependents Legal claims Prosecute, defend & settle Medicaid trust Medicaid CSRA Expend principal* Real property* Sell or mortgage* Lease (more than 3 yrs)* Personal property Sell ($1500+ cumulative)* Revocable trust* Gifts & advancement* Guardian of the Estate

30. Custody Ward & personal effects Residence In-state preferred Not treatment facility Community facility Employment Rehabilitation Care & treatment Consent Medical, legal, etc. Natural death Not sterilization (unless court order) Can’t file for divorce Guardian of the Person

31. Decision-making Defer to ward To extent capable Substituted judgment What would ward do? Best interest Reasonable person? 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 Guardian of the Person

32. Removal Neglect Mismanagement Breach of fiduciary duty Conflict Termination Ward’s death Competency restored Restoring competency Standing Guardian Ward Interested person Attorney/GAL Jury trial Preponderance of evidence Guardianship

33. Adult Protective Services and Guardianship Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill