§ 10-108. Petition for involuntary protective services
Oklahoma Statutes AnnotatedTitle 43A. Mental HealthEffective: November 1, 2021
Effective: November 1, 2021
43A Okl.St.Ann. § 10-108
§ 10-108. Petition for involuntary protective services
A. 1. If the Department of Human Services determines that a vulnerable adult is suffering from abuse, neglect, self-neglect, or financial neglect or exploitation presenting a substantial risk of death or immediate and serious physical harm to the person or financial exploitation of the estate of the person, and the vulnerable adult lacks mental capacity to consent to receive protective services and no consent can be obtained, the Department may petition the district court in the county specified by paragraph 3 of this subsection for an order:
b. freezing the assets of the vulnerable adult, if the vulnerable adult is being exploited, establishing any new accounts necessary to pay the daily living expenses of the vulnerable adult, and directing a full accounting and investigation of the person alleged to be improperly managing the estate of the vulnerable adult,
c. suspending or revoking the powers of an attorney-in-fact granted by a durable power of attorney, or revoking an irrevocable trust, or terminating a guardianship or conservatorship established pursuant to the Oklahoma Guardianship and Conservatorship Act,1 or
d. directing any law enforcement agency to transport any incapacitated person or vulnerable adult as necessary for appropriate care, treatment and residential placement. If such transportation is ordered, reimbursement for expenses incurred from the transportation of a vulnerable adult under the Department's temporary guardianship shall be paid as provided for in Section 10-107 of this title.
2. Under no circumstances shall the court authorize the Department, pursuant to this subsection, to consent or deny consent to a Do-Not-Resuscitate order or the withdrawal of hydration or nutrition or other life-sustaining treatment although the court retains jurisdiction to hear such matters under applicable law.
c. the district court in the county where the vulnerable adult is located when any delay caused by taking the petition to the district court in the county of the residence of the vulnerable adult would result in greater substantial risk of death or greater serious physical harm to the vulnerable adult. The petition shall include an explanation of why the petition was filed in the district court in the county specified by this subparagraph rather than in the district court as specified in subparagraph a or b of this paragraph.
B. The petition shall be sworn to and include the name, age, and address of the vulnerable adult who the Department has determined is in need of emergency protective services, the nature of the abuse, neglect, or exploitation, the services needed, and information relating to the capacity of the person to consent to services and a description of the attempts of the Department to obtain consent and the name of the person or organization proposed to be appointed as temporary guardian.
C. 1. The vulnerable adult shall receive an opportunity for a hearing upon the petition, and shall be personally served with a copy of the petition and a notice scheduling hearing at least forty-eight (48) hours prior to any such hearing if the petition seeks temporary guardianship of thirty (30) days or more.
2. a. The hearing shall be set by the court on an expedited basis, but no later than five (5) calendar days, not including weekends or holidays when the court is closed, from the date the notice scheduling hearing is signed by the judge. The vulnerable adult shall have a right to a closed hearing unless such vulnerable adult requests otherwise.
D. 1. Upon sworn testimony of a representative of the Department, or statement of a district attorney representing the Department, that immediate and reasonably foreseeable death or serious physical harm to or financial exploitation of the vulnerable adult will result, the court may waive prior notice and issue a seventy-two-hour temporary guardianship and provide involuntary protective services whether or not during regular courthouse business hours. However, within twenty-four (24) hours of issuance of the seventy-two-hour order, the vulnerable adult and the attorney of the vulnerable adult, if known, shall be personally served with written notice scheduling a hearing within seventy-two (72) hours.
2. If a hearing on the seventy-two-hour order is declined, or upon conclusion of any such hearing, the court may terminate the temporary guardianship and involuntary services or enter a temporary guardianship for up to thirty (30) additional calendar days as provided for in subsection G of this section.
E. 1. The vulnerable adult has a right to be present and represented by counsel at any hearing authorized by this section. If the vulnerable adult is indigent or, in the determination of the court, lacks capacity to waive the right to counsel, the court shall immediately appoint counsel who shall personally meet with the vulnerable adult and attempt to discuss the petition or any pending motion prior to any hearing.
2. If the vulnerable adult is not in attendance at a scheduled hearing, the court shall make a special finding as to why the vulnerable adult is unable to attend, and, upon the request of the vulnerable adult or the attorney of the vulnerable adult, may continue the hearing to allow the vulnerable adult to attend.
d. order any law enforcement agency to transport any incapacitated person or vulnerable adult as necessary for appropriate care, treatment and residential placement. If such transportation is ordered, reimbursement for expenses incurred from the transportation of a vulnerable adult under the Department's temporary guardianship shall be paid as provided for in Section 10-107 of this title.
b. If the Department of Human Services has been appointed temporary guardian and the court issues an order for the Department to continue as the temporary guardian of the vulnerable adult beyond the one hundred eighty (180) calendar days authorized by this section because there is no one willing and able to act as guardian for the vulnerable adult, the Department, as temporary guardian may, after one (1) year from its initial appointment, sell the real property of a vulnerable adult pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act.
c. The Department, as temporary guardian of a vulnerable adult, may also sell the real property of the vulnerable adult pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act prior to the one-year requirement specified in subparagraph b of this paragraph, if not selling the real property would jeopardize the vulnerable adult's eligibility for Medicaid. The fact that the vulnerable adult would be in jeopardy for receipt of Medicaid if the property was not sold shall be stated upon the court order directing the sale of the real property of the vulnerable adult.
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 the order of the court. When the conditions creating the emergency have been removed, the court shall dismiss the temporary guardianship ordered pursuant to this section;
3. Protective services authorized by an involuntary protective services order shall not include a change of residence unless the court specifically finds such action is necessary to remove the conditions creating the emergency and gives specific approval for such action in the order of the court. Emergency placement may be made to such facilities as nursing homes, hospital rehabilitation centers, assisted living centers, foster care and in-home placements, or to other appropriate facilities for emergency care or evaluation to determine the extent of a vulnerable adult's physical, mental and functional limitations; provided, however, emergency placement shall not be made or construed as an alternative to emergency detention and protective custody as authorized under Section 5-206 et seq. of this title or made or construed as an alternative to involuntary commitment under Section 5-410 et seq. of this title when a vulnerable adult otherwise meets the criteria for involuntary commitment. Services to such vulnerable adults shall be provided in a manner that is appropriate for the adult's age and condition and, except for facilities operated by the Department of Mental Health and Substance Abuse Services or community-based structured crisis centers under contract with the Department pursuant to Section 3-317 of this title, services provided to vulnerable adults pursuant to this section shall be provided in a setting that is segregated from any patients or residents of a facility who have been determined to be a danger to others; and
H. The court shall appoint the Department or an interested person or organization as temporary guardian of the person with responsibility for the welfare of such person and authority to give consent on behalf of the person for the approved involuntary protective services until the expiration of the order.
2. If forcible entry is authorized by the court, the order shall include a directive that the Department's representative be accompanied by a police officer or deputy sheriff in the county where the vulnerable adult or property of the vulnerable adult is located, and the police officer or deputy sheriff shall make the forcible entry.
L. If the vulnerable adult continues to need involuntary protective services after expiration of the thirty-day temporary guardianship provided in subsection G of this section, the temporary guardian shall immediately file a verified motion requesting the court to, except as otherwise provided by subsection F of this section, continue the temporary guardianship and involuntary protective services under this section for a period not to exceed one hundred eighty (180) calendar days.
2. Upon filing such motion, the court shall order that a physical, mental, and social evaluation of the vulnerable adult be conducted by the Department and that a proposed plan of care be submitted to the court within thirty (30) calendar days thereafter reflecting the evaluation findings and recommended services.
c. a medical and social evaluation including, but not limited to, the Department's assessment of the person's capacity to consent to services, a psychological or psychiatric evaluation and review if the mental state of the person is in question, and any recommendations for or against maintenance of partial legal rights. The evaluation and review shall include recommendations for placement based upon the best interests of the vulnerable adult taking into consideration the following:
During the hearing to consider the motion to continue the temporary guardianship of the vulnerable adult for up to one hundred eighty (180) calendar days, the court shall consider the Department's findings and proposed plan of care and any other evidence presented by the caretaker, guardian or other interested persons. The court shall either terminate the temporary guardianship and all involuntary services or continue the temporary guardianship and specify any necessary services to be provided by the Department for a period not to exceed one hundred eighty (180) calendar days. Provided, the court may continue the guardianship of the Department, if there is no one willing and able to act as guardian for the vulnerable adult.
Credits
Laws 1977, c. 264, § 8, emerg. eff. June 17, 1977; Laws 1984, c. 256, § 8, eff. Nov. 1, 1984. Renumbered from Title 43A, § 808 by Laws 1986, c. 103, § 103, eff. Nov. 1, 1986. Laws 1987, c. 120, § 1, eff. Nov. 1, 1987; Laws 1993, c. 159, § 5, eff. July 1, 1993; Laws 1994, c. 244, § 4, eff. Sept. 1, 1994; Laws 1997, c. 195, § 11, eff. Nov. 1, 1997; Laws 1998, c. 298, § 5, eff. Nov. 1, 1998; Laws 1999, c. 78, § 4, emerg. eff. April 13, 1999; Laws 2001, c. 310, § 1, emerg. eff. June 1, 2001; Laws 2003, c. 332, § 8, emerg. eff. May 29, 2003; Laws 2007, c. 68, § 4, eff. Nov. 1, 2007; Laws 2011, c. 370, § 1, eff. Nov. 1, 2011; Laws 2021, c. 85, § 1, eff. Nov. 1, 2021.
Footnotes
Title 30, § 1-101 et seq.
43A Okl. St. Ann. § 10-108, OK ST T. 43A § 10-108
Current with emergency effective legislation through Chapter 3 of the Second Regular Session of the 59th Legislature (2024). Some sections may be more current, see credits for details.
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