Code of Massachusetts Regulations
651 CMR - EXECUTIVE OFFICE OF ELDER AFFAIRS
Title 651 CMR 5.00 - Elder Abuse Reporting and Protective Services Program
Section 5.17 - Protective Orders
Universal Citation: 651 MA Code of Regs 651.5
Current through Register 1531, September 27, 2024
(1) A Protective Order may be sought to enable the provision of Protective Services in cases where a Protective Services Agency has Reasonable Cause to Believe that access to the allegedly Abused Elder has been barred by any person other than the allegedly Abused Elder or where the determination of the Elder's Decisional Capacity to consent to the provision of Protective Services is necessary for the completion of the Investigation.
(2) Protective Orders may be sought for the following circumstances:
(a) The Elder is
believed to lack the Decisional Capacity to consent to protective services. A
Protective Services Agency or the Department may petition the Court for an
order under M.G.L. c. 19A, § 20(a) or 20(b) requesting that a
medical/competency evaluation be completed in order to determine the Elder's
Decisional Capacity to consent to Protective Services if, as a result of an
Investigation, a Protective Services Agency or the Department has Reasonable
Cause to Believe:
1. That a Reportable
Condition exists;
2. That the Elder
is in need of one or more Protective Services to alleviate the conditions
creating the Abuse;
3. That an
attempt has been made to obtain consent in accordance with
651 CMR
5.15 for the provision of one or more
Protective Services and consent has not been obtained; and
4. That consent has not been obtained because
the Elder may lack the Decisional Capacity to consent to the provision of one
or more Protective Services needed to alleviate the Abuse;
5. That the risk to the Elder is serious
enough to warrant Court intervention; and
6. Supervisory approval for the initiation of
Court action has been obtained.
(b) The Elder lacks the Decisional Capacity
to consent to the provision of protective services. A Protective Services
Agency or the Department may petition the Court for an order under M.G.L. c.
19A, § 20(a) or 20(b) specifying those services necessary to alleviate the
Abuse if, as a result of an Investigation, a Protective Services Agency or the
Department has Reasonable Cause to Believe:
1.
That a Reportable Condition exists;
2. That the Elder is in need of one or more
Protective Services to alleviate the conditions creating the Abuse;
3. That an attempt has been made to obtain
consent in accordance with
651 CMR
5.15 for the provision of one or more
Protective Services and consent has not been obtained; and
4. That consent has not been obtained because
the Elder lacks the Decisional Capacity to consent, as determined by a
medical/competency evaluation, to the provision of one or more Protective
Services needed to alleviate the Abuse;
5. That the risk to the Elder is serious
enough to warrant Court intervention; and
6. Supervisory approval for the initiation of
Court action has been obtained.
(c) Access to the Elder is barred during the
investigation of a report by a person other than the Elder. A Protective
Services Agency or the Department may petition the Court for an order to
complete the Investigation of a report of Abuse under M.G.L. c. 19A, §
20(a) or 20(b) if a Protective Services Agency or the Department has Reasonable
Cause to Believe:
1. That a Reportable
Condition may exist;
2. That the
Elder may be in need of one or more Protective Services to alleviate the
conditions creating the alleged Abuse;
3. That an attempt(s) has been made to gain
access in order to complete the Investigation and access has been barred by a
person(s) other than the allegedly Abused Elder;
4. That the alleged risk to the Elder is
serious enough to warrant Court intervention; and
5. Supervisory approval for the initiation of
Court action has been obtained.
(3) Contents of the Petition. The petition for an order for Protective Services and/or appointment of a fiduciary shall set forth the facts and attesting documentation required by the Court and be in accordance with procedures developed by the Court. The documentation shall include the petition, affidavits of the Protective Services Caseworker and other involved professionals, the medical certificate, and the accompanying physician's letter or affidavit, if available. Such petition shall specify the services/interventions requested and shall seek the least restrictive form of intervention that will alleviate or eliminate Abuse.
(4) Rights of the Elder under M.G.L. c. 19A, § 20(a) or 20(b).
(a) The Protective Services Caseworker shall
inform the Elder of his or her rights under M.G.L. c. 19A, § 20(a) or
20(b) in a manner suitable to the Elder's level of understanding.
(b) The Elder who is the subject of the
petition shall have the right to be present, be represented by counsel, present
evidence, and examine and cross-examine witnesses.
(c) The Elder shall have the right, at his or
her own expense, to secure an independent medical and psychological or
psychiatric examination relevant to the issue involved in any hearing under
M.G.L. c. 19A, § 20(a) or 20(b) and to present a report of his or her
independent evaluation or the evaluator's personal testimony as evidence at the
hearing. Appointed counsel of an indigent Elder may request that the Court
order such an independent evaluation.
(d) The Court shall not order an
institutional placement or change of residence unless it finds that no less
restrictive alternative will meet the needs of the Elder.
(e) No Elder may be committed to a mental
health facility pursuant to M.G.L. c. 19A, §§ 20(a) or
20(b).
(f) If the Elder who is the
subject of the petition is indigent, the Court shall appoint counsel to
represent the interest of the Elder at the Court hearing.
(g) If the Elder who is the subject of the
petition lacks the Decisional Capacity to retain counsel or waives the right to
counsel, the Court shall appoint a guardian ad litem to represent the interest
of the Elder at the Court hearing.
(h) A Protective Services Agency attorney
shall request that the Court appoint counsel for the Elder who is the subject
of the petition if the Elder is not represented by counsel at the Court
hearing.
(i) The Protective
Services Caseworker, in conjunction with the Protective Services Supervisor and
agency attorney, shall make reasonable attempts to facilitate the exercise of
the Elder's rights as set forth in 651 CMR 5.17(4)(a) through (h) in any
hearing under M.G.L. c. 19A, §§ 20(a) or 20(b).
(5) Specific Procedural Statutory Requirements of the Court.
(a)
Non-emergency Protective Order, M.G.L. c. 19A, §
20(a).
1. The Court shall hold a
hearing on the matter within 14 days of the filing of the petition.
2. The Court shall give notice to the Elder
who is the subject of the petition at least five days prior to the date set for
the hearing.
3. An order for
Protective Services for an Elder pursuant to M.G.L. c. 19A, § 20(a) shall
remain in effect for a period of six months, unless otherwise stipulated in
such order. The Court may, for good cause shown, extend an order for Protective
Services. Such extension shall remain in effect for a period of six months,
unless otherwise stipulated in the order.
(b)
Emergency Protective Order,
M.G.L. c. 19A, § 20(b).
1. A
member of the immediate family, or Caretaker of the Elder may also petition the
court for a Protective Order if they have Reasonable Cause to Believe that the
conditions set forth in
651 CMR 5.16(2) through
(4) exist.
A member of the Elder's immediate family or the Elder's Caretaker is encouraged to report the alleged Abuse to the Elder Abuse Hotline, the local designated Protective Services Agency, or the Department, in order to seek an Emergency Investigation of the situation and condition of the Elder prior to filing a petition with the Court for an Emergency order for Protective Services under M.G.L. c. 19A, § 20(b).
2. The Court shall give notice to the Elder
who is the subject of the petition at least 24 hours prior to the Court
hearing.
3. The Court may dispense
with notice upon finding that immediate and foreseeable physical harm to the
Elder or others will result from the 24 hour delay and that reasonable attempts
have been made to give such notice to the Elder.
4. No statutory authority exists for the
appointment of any type of fiduciary representation as a result of a hearing
for an Emergency Protective Order under M.G.L. c. 19A, § 20(b).
5. The order for Emergency Protective
Services shall remain in effect for a period not to exceed 14 days. Said order
may be extended for an additional period not to exceed 14 days if the Court
finds that the extension is necessary to remove the Emergency.
(6) Actions upon Obtaining a Protective Order.
(a)
Non-emergency Protective
Order, M.G.L. c. 19A, § 20(a).
1. If, after a hearing the Court determines,
based on the preponderance of the evidence, that the Elder has been Abused, is
in need of Protective Services and lacks the Decisional Capacity to consent and
no other person who is authorized to consent is available or willing to
consent, the Court may order the provision of Protective Services.
2. If, after a hearing the Court determines,
based on the preponderance of the evidence, that the Elder has been Abused, is
in need of Protective Services and lacks the Decisional Capacity to consent and
no other person who is authorized to consent is available or willing to
consent, the Court may appoint a Conservator, Guardian, or other person
authorized to consent to the provision of Protective Services; provided
however, that the Court shall establish the least restrictive form of fiduciary
representation that will satisfy the needs of such Elder.
3. The Protective Services Caseworker shall
develop or revise and implement a service plan for the provision of one or more
Protective Services in accordance with the order of the Court as soon as
possible after the M.G.L. c. 19A, § 20(a) order is granted.
4. The Elder, a Protective Services Agency,
or the Department, may, for good cause shown, and, at any time, petition the
Court to modify or set aside any order of the Court pursuant to M.G.L. c. 19A,
§ 20(a).
5. Where funds are
not available through appropriation from the Department to directly provide one
or more Protective Services under M.G.L. c. 19A, § 20(a), a Protective
Services Agency shall coordinate with and utilize existing social, health,
mental health, legal and other resources, as available, to provide services
under a service plan.
6. A
Protective Services Agency shall insure that the services are provided in the
least intrusive manner and by persons already familiar with the Elder whenever
possible.
7. A copy of all
Protective Orders issued by the Court shall be placed in the Protective
Services case record.
(b)
Emergency Protective Order,
M.G.L. c. 19A, § 20(b).
1.
If, after a hearing the Court determines, based on the preponderance of the
evidence, that the Elder has been or is being Abused, that an Emergency exists,
and that the Elder lacks the Decisional Capacity to consent to the provision of
Protective Services, the Court may order the provision of Protective Services
on an Emergency basis.
2. The Court
has the statutory authority to order only those services necessary to remove
the conditions creating the Emergency and shall specifically delineate the
authorized services in its order.
3. The Protective Services Caseworker shall
develop or revise and implement a service plan for the provision of one or more
Protective Services in accordance with the Emergency order as soon as possible
after an M.G.L. c. 19A, § 20(b) order is granted.
4. The Elder, a Protective Services Agency,
or the Department, may, for good cause shown, and, at any time, petition the
Court to modify or set aside any order of the Court pursuant to M.G.L. c. 19A,
§ 20(b).
5. Where funds are
not available through appropriation from the Department to directly provide one
or more Protective Services under M.G.L. c. 19A, § 20(b), a Protective
Services Agency shall coordinate with and utilize existing social, health,
mental health, legal and other resources, as available, to provide services
under a service plan.
6. A
Protective Services Agency shall insure that the services are provided in the
least intrusive manner and by persons already familiar with the Elder whenever
possible.
7. A copy of all
Protective Orders issued by the Court shall be placed in the Protective
Services case record.
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