Code-Co's Utah Law Internet Access http://www.code-co.com/utah/
If you have problems or suggestions, please email webmaster@code-co.com
QuickLinks:
[Leg. Main Page]
[Enrolled Bills]
[Code Section Look Up]
[Committees]
[Legislators]
[Schedule]
[Journals]
Bill Related Links:
[End of Bill]
HB 98
ADULT PROTECTIVE SERVICES AMENDMENTS
1996 GENERAL SESSION
STATE OF UTAH
Sponsor: Lloyd W. Frandsen
Norm L. Nielsen
Nora B. Stephens
Sheryl L. Allen
Joseph G. Murray
Bryan D. Holladay
David M. Bresnahan
AN ACT RELATING TO AGING AND ADULT SERVICES; CLARIFYING DUTIES OF
ADULT PROTECTIVE SERVICES; ESTABLISHING PROTECTION FOR ELDER
ADULTS; DEFINING THE CRIME OF ABUSE; DEFINING ABUSE IN CIVIL CONTEXT;
AND ESTABLISHING REQUIREMENTS AND PROCEDURES FOR PROTECTION OF
DISABLED AND ELDER ADULTS.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
62A-3-301 , as last amended by Chapter 278, Laws of Utah 1992
62A-3-302 , as last amended by Chapter 278, Laws of Utah 1992
62A-3-303 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-304 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-305 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-306 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-307 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-308 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-309 , as last amended by Chapter 12, Laws of Utah 1994
62A-3-310 , as enacted by Chapter 1, Laws of Utah 1988
62A-3-311 , as last amended by Chapter 289, Laws of Utah 1994
62A-3-311.1 , as last amended by Chapter 289, Laws of Utah 1994
62A-3-312 , as last amended by Chapter 38, Laws of Utah 1993
ENACTS:
76-5-111 , Utah Code Annotated 1953
76-5-111.1 , Utah Code Annotated 1953
REPEALS:
62A-3-302.5 , as enacted by Chapter 278, Laws of Utah 1992
62A-12-223 , as enacted by Chapter 1, Laws of Utah 1988
Be it enacted by the Legislature of the state of Utah:
Section 1.
Section
62A-3-301
is amended to read:
62A-3-301. Definitions.
As used in this part:
(1) "Abuse" means:
(a) attempting to cause, or intentionally or knowingly causing physical harm or intentionally
placing another in fear of imminent physical harm;
(b) physical injury caused by criminally negligent acts or omissions;
(c) unlawful detention or unreasonable confinement;
(d) gross lewdness; or
(e) deprivation of life sustaining treatment, except:
(i) as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
(ii) when informed consent, as defined in Section 76-5-111
, has been obtained.
[(1)] (2) "Bodily injury" means physical pain, illness, or any impairment of physical
condition.
[(2)] (3) "Caretaker" means any person, corporation, or public institution that has assumed
by relationship, contract, or court order the responsibility to provide food, shelter, clothing, medical,
and other [life-sustaining] necessities to a disabled or elder adult.
[(3)] (4) "Counsel" means an attorney licensed to practice in this state.
[(4) "Criminal negligence" means, with respect to circumstances surrounding a person's
conduct or the result of his conduct, that he should have been aware of a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The risk must be of such a nature and
degree that the failure to perceive it constitutes a gross deviation from the standard of care that an
ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.]
(5) "Disabled adult" means a person 18 years of age or older who is impaired because of
- 2 -
mental illness, mental deficiency, physical illness or disability, [chronic use of drugs, chronic
intoxication,] or other cause, to the extent that he lacks sufficient understanding or capacity to make
or communicate informed decisions concerning his person, or is unable to care for his own personal
safety or [to] provide necessities such as food, shelter, clothing, or medical care, without which
physical injury or illness may occur. A person who is, in good faith, under treatment solely of a
spiritual means, through prayer, in accordance with the tenets and practices of a recognized church
or religious denomination, and by an accredited practitioner thereof shall not be considered a
disabled or elder adult for that reason alone.
(6) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
(7) "Elder adult" means a person 65 years of age or older.
[(6)] (8) "Emergency" means that a disabled or elder adult is at risk of death or immediate
and serious harm to himself or others.
(9) "Emotional or psychological abuse" means deliberate conduct that is directed at a
disabled or elder adult through verbal or nonverbal means, and that causes the disabled or elder adult
to suffer emotional distress or to fear bodily injury, harm, or restraint.
[(7)] (10) "Exploitation" means [unjust or improper use] exploitation of a disabled or elder
adult [or of his resources for profit or advantage] as that offense is described in Subsection
76-5-111
(4).
[(8) "Intentionally" means that a person engages in conduct with intent or willfully, with
respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective
or desire to engage in the conduct or cause the result.]
[(9) "Knowingly" means, with respect to a person's conduct or the circumstances
surrounding his conduct, that he is aware of the nature of his conduct or the existing circumstances.
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result.]
(11) "Informed consent" means the same as that term is defined in Section 76-5-111
.
[(10)] (12) "Neglect" means:
(a) the failure of a caretaker to provide habilitation, care, nutrition, clothing, shelter,
- 3 -
supervision, or medical care [or];
(b) a pattern of conduct by a caretaker, without the disabled or elder adult's informed
consent, resulting in deprivation of food, water, medication, medical services, shelter, cooling,
heating, or other services necessary to maintain minimum physical or mental health; or
(c) the failure or inability of [the] a disabled adult to provide those services for himself.
[(11)] (13) "Protected person" means a disabled or elder adult for whom the court has
ordered protective services including[,] disabled or elder adults for whom emergency protective
services are established under the provisions of this part.
[(12)] (14) "Protective services" means services provided by the offices of Adult Protective
Services within the division, including [the] investigation of allegations of abuse, emotional or
psychological abuse, neglect, or exploitation, and other services provided either by voluntary
agreement or as authorized by court order to assist disabled or elder adults in need of protection, for
the purpose of discontinuing and preventing further abuse, neglect, or exploitation. Those services
may include the services of guardian and conservator provided in accordance with Title 75, Utah
Uniform Probate Code, [to assist persons in need of protection to prevent or discontinue abuse,
neglect, or exploitation until that condition no longer requires intervention] when no other agency
or individual can appropriately provide the service. The services provided by the offices of Adult
Protective Services shall be consistent, if at all possible, with the accustomed lifestyle of the disabled
or elder adult.
[(13) "Recklessly" means, with respect to circumstances surrounding a person's conduct or
the result of his conduct, that he is aware of but consciously disregards a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The risk must be of such a nature and
degree that its disregard constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the actor's standpoint.]
Section 2.
Section
62A-3-302
is amended to read:
62A-3-302. Reporting requirements -- Investigation -- Criminal penalty.
(1) Any person, including, but not limited to, a social worker, physician, psychologist, nurse,
teacher, or employee of a private or public facility serving adults, who has reason to believe that any
- 4 -
disabled or elder adult has been the subject of abuse, emotional or psychological abuse, neglect, or
exploitation shall immediately notify the nearest peace officer, law enforcement agency, or local
office of [the department, or] Adult Protective Services within the division.
(2) Anyone who makes that report in good faith is immune from civil liability in connection
with the report.
(3) (a) When the initial report is made to a peace officer or law enforcement agency and the
disabled or elder adult requires protection, the officer or agency shall immediately notify the nearest
local Adult Protective Services office [of the department], and that office shall [initiate protective
service procedures as provided in this part] coordinate its investigation with law enforcement, and
provide protection to the disabled or elder adult as necessary.
(b) When the initial report [is made to the division and the report] involves a resident of a
long-term care facility, as defined by Subsection
62A-3-202
(1), [the report shall immediately be
forwarded to] the local long-term care ombudsman[. All other reports which are made to the
division shall immediately be forwarded to the appropriate local office of the department] shall
immediately be notified. The ombudsman and local Adult Protective Services office shall cooperate
in conducting the investigation.
(c) When the initial report [is made to the local office of the department and it appears] or
investigation by an Adult Protective Services office indicates that [the] criminal abuse, neglect, or
exploitation [has caused bodily injury or a serious imposition on the rights of the disabled adult], as
defined in Section 76-5-111
, has occurred, or that any other criminal offense against a disabled or
elder adult has occurred, the local office of [the department] Adult Protective Services shall
immediately notify the local law enforcement agency [which]. That law enforcement agency shall
initiate an investigation [and,] in cooperation with the local office of [the department, shall initiate
appropriate protective service procedures] Adult Protective Services.
(4) A person who is required to report suspected abuse, emotional or psychological abuse,
neglect, or exploitation of a disabled or elder adult under Subsection (1), and who willfully fails to
do so, is guilty of a class B misdemeanor.
Section 3.
Section
62A-3-303
is amended to read:
- 5 -
62A-3-303. Adult protective services program.
(1) The division shall develop a plan for a coordinated adult protective services program
consistent with the provisions of this part, with the goal of ensuring that every disabled or elder adult
in need of protection from abuse, emotional or psychological abuse, neglect, or exploitation will
have [easy] access to those services.
(2) The division shall adopt and promulgate rules necessary to fully effect the content and
purposes of this part. [Those rules shall include:]
[(1) procedures for the operation of a protective services program;]
[(2) guidelines for the initiation of protective proceedings, including proceedings for
guardianship and conservatorship; and]
[(3) designation of facilities appropriate for protective placement.]
Section 4.
Section
62A-3-304
is amended to read:
62A-3-304. Adult protective services provided by division -- Costs -- Procedures.
(1) The division shall furnish, [as] to the extent funded by the Legislature, adult protective
services in response to [requests for assistance from or on behalf of persons to be protected,] referrals
of abuse, neglect, or exploitation involving disabled or elder adults in need of protection. Those
services may be provided by voluntary agreement or [when the] upon court [orders those services]
order, in accordance with this section and Sections
62A-3-305
,
62A-3-306
,
62A-3-309
, and
62A-3-310
.
(2) Disabled or elder adults who [are to be protected by] receive protective services from the
division shall receive [protective] those services knowingly and voluntarily, and without coercion
in accordance with Subsection (5), unless [ordered by] the services are court ordered in accordance
with Subsections (6), (7), and (8) and Sections
62A-3-305
,
62A-3-306
,
62A-3-307
,
62A-3-308
, and
62A-3-309
.
(3) Costs incurred in providing protective services are the responsibility of the [division
unless] disabled or elder adult if:
(a) the disabled or elder adult to be protected is eligible for those services from another
governmental agency;
- 6 -
(b) the disabled or elder adult to be protected is financially able to pay for those services
according to rates established by the division and that payment is provided for as part of the written
agreement for services described in Subsection (5) (b); or
(c) the court appoints a guardian and orders that the costs be paid from the disabled or elder
adult's estate.
[(4) Nothing in this section relieves the division from its responsibility to provide protective
services, unless other services are actually available to the disabled adult.]
[(5)] (4) (a) Protective services may be provided without a court order, after review by the
division, for a disabled or elder adult who[: (i)] has the capacity to consent and who requests or
knowingly and voluntarily consents to receive those services[;].
[(ii) knowingly and voluntarily waives the right to a hearing or evidentiary finding of facts;
or]
[(iii) has either received competent counsel or who knowingly and voluntarily waives the
right to counsel.]
(b) [In all cases described in Subsection (1)] Whenever the division provides adult protective
services, a written agreement [between] shall be executed by the division and the recipient, setting
forth the purposes and limitations of the services to be provided[, shall be executed]. If consent to
protective services is subsequently withdrawn by the disabled or elder adult, services provided under
this section shall cease.
[(6)] (5) Involuntary protective services may be provided to [nonconsenting] a disabled
[adults under this part pursuant to a] adult who does not consent or who lacks the capacity to consent
to those services only upon court order in accordance with Section 62A-3-305
.
[(7)] (6) When protective services are furnished [under this part] pursuant to court order in
accordance with Sections
62A-3-305
,
62A-3-306
,
62A-3-307
,
62A-3-308
, and
62A-3-309
, the
disabled or elder adult receiving those services has the following rights prior to the provision of
services:
(a) personal service of a copy of the petition for protective services which complies with
Section 62A-3-305
;
- 7 -
(b) the right to a hearing before a district court, with at least ten days' notice of the contents
of the petition, the rights set forth in this section, and of the possible consequences of the hearing.
This notice shall also be provided to all reasonably ascertainable persons and agencies having some
responsibility for the disabled or elder adult's welfare, and to his guardian;
(c) the right to be present at the hearing described in Subsection (b), unless the disabled or
elder adult has knowingly and voluntarily waived the right to be present, or a licensed physician who
is not the petitioner or an agent of the petitioner, has certified that the disabled or elder adult is
physically unable to attend, in which case the court shall appoint a court investigator to personally
interview that disabled or elder adult and determine his desires concerning the hearing. Waiver shall
not be presumed by nonappearance of the disabled or elder adult, but shall be determined at the
hearing on the basis of factual information supplied to the court;
(d) the right to counsel at the hearing, in preparation for the hearing, and at every significant
stage of the protective service. If a disabled or elder adult is unable to afford counsel, the court shall
appoint counsel, who shall be paid by the division in accordance with Subsection (3);
(e) the right to offer evidence on his behalf, to compel the attendance of witnesses, and to
confront and cross-examine witnesses. The disabled or elder adult shall also be provided a written
statement setting forth the reasons for and conditions of any protective order; and
(f) the right to the least possible restriction of his rights, consistent with his welfare and
safety.
[(8)] (7) [This] Nothing in this section [does not limit] limits specific procedures under Title
75, or under the protective placement process described in Section 62A-3-309
, designed to safeguard
the best interests of the person to be protected.
Section 5.
Section
62A-3-305
is amended to read:
62A-3-305. Nonconsenting disabled adult or adult who lacks capacity to consent --
Petition by agency in services authorized by court -- Review.
(1) If an office of Adult Protective Services believes that a disabled adult [does not] refuses
to consent or that a disabled or elder adult lacks the capacity to consent to [the receipt of] protective
services, [or, if his consent is withdrawn or the division determines that the disabled adult lacks the
- 8 -
capacity to consent, the division] and believes that the adult is in need of protective services, that
office may petition the district court for authorization to provide protective services. That petition
shall include:
(a) specific facts sufficient to show that the person is a disabled or elder adult [is disabled
and] in need of protective services [as defined in this part];
(b) specific facts sufficient to show that the disabled or elder adult presently lacks the
capacity to consent or [has] that the disabled adult failed or refused to consent;
(c) at least ten days' notice of the hearing on the petition; and
(d) a statement of the disabled or elder adult's rights, specified in Subsection
62A-3-304
(7).
(2) If the court finds by clear and convincing evidence that the disabled or elder adult lacks
the capacity to consent or that a disabled adult refuses to consent, and is in need of protective
services, it shall issue a decree authorizing the provision of protective services by the division. That
decree shall specifically state the purpose, extent, and limitations of those protective services,
including specific findings of fact and conclusions of law.
(3) Any party to the proceedings may [move] petition the court for modification or
dissolution of the decree at any time upon a showing of substantial change in circumstances. Any
person for whom protective services are ordered has the right to petition the court for a rehearing
within ten days from the date the order was entered.
Section 6.
Section
62A-3-306
is amended to read:
62A-3-306. Emergency order authorizing protective services -- Implementation.
(1) Upon petition by the division or another interested party, a district court may issue an
order authorizing the provision of protective services on an emergency basis if it finds that:
(a) the person to be protected is a disabled or elder adult;
(b) an emergency situation exists; and
(c) the person to be protected does not have a guardian authorized by law to act on his
behalf, or his guardian has failed or refused to act.
(2) In issuing an emergency order, the court shall order only those protective services which
are necessary to remove the conditions creating the emergency, and shall specifically designate in
- 9 -
the order the protective services which are approved, together with supporting facts.
(3) Protective services authorized by an emergency order [shall] may not include
hospitalization, nursing or custodial care, or a change of residence unless the court specifically finds
that the action is necessary and approves that action in its order.
(4) Protective services shall be provided through an emergency order for a period not to
exceed [72 hours] three business days, at which time the order shall terminate unless a petition for
guardianship, conservatorship, or other protective service has been initiated. If such a petition is
made, the emergency order may be continued for as long as [ten] 15 days from the date the petition
was filed, to allow time for a hearing [for determination of] to determine whether the emergency
order shall remain in effect.
(5) In its emergency order, the court shall appoint the petitioner or another interested person
as guardian, as defined in Subsection
75-1-201
(16). That guardian has responsibility for the
disabled person's welfare, and has authority to consent to the approved protective services until the
expiration of the order.
(6) The issuance of an emergency order and the appointment of a guardian until the
expiration of the order does not deprive the protected person of any right, except to the extent
provided in the order or appointment.
(7) To implement an emergency order the court may authorize forcible entry[,] by a law
enforcement officer[,] to the premises where the protected person is residing, for the purpose of
rendering protective services or transporting the person to another location for the provision of those
services. Forcible entry under this subsection is authorized only after a showing to the court that
voluntary access to the premises is not possible and that forcible entry is required.
Section 7.
Section
62A-3-307
is amended to read:
62A-3-307. Petition for emergency order -- Affidavit -- Notice -- Hearing.
(1) A petition for an emergency order shall set forth:
(a) the name, address, and interest of the petitioner;
(b) the name, age, and address of the person in need of protective services;
(c) the nature of the emergency;
- 10 -
(d) the nature of the person's disability, if determinable;
(e) the proposed protective services; and
(f) the petitioner's affidavit as to the existence of facts evidencing the petitioner's attempts
to obtain the person's consent to protective services, and the outcome of those attempts.
(2) Notice of the filing of a petition for an emergency order, and other relevant information,
including the factual basis of the petitioner's belief that emergency protective services are needed,
a description of the exact protective services to be rendered, a description of the rights of the person
to be protected with regard to the court proceeding, and the consequences of a court order, shall be
given to the person to be protected, and to his spouse, if he is married, or to his adult children or his
next of kin, and to his guardian if one has been appointed. This notice shall be given at least 24
hours prior to the hearing for emergency intervention. The court may waive this 24-hour notice
requirement upon a showing that:
(a) immediate and reasonably foreseeable physical harm to the person or others will result
from a 24-hour delay; and
(b) reasonable attempts have been made to notify the person, his spouse, if he is married, his
adult children or next of kin, and his guardian, if one has been appointed. Notice of the court's final
order shall also be given to those parties.
(3) Upon receipt of a petition for an emergency order for protective services, the court shall
hold a hearing after the 24-hour notice required by Subsection (2) has been given, unless that notice
has been waived by the court.
(4) If an emergency order is issued by the court, the protected person, his temporary
guardian, or any interested person may petition the court to have that order set aside or modified at
any time, notwithstanding any prior findings by the court that the protected person is a disabled or
elder adult.
(5) If protective services are rendered on the basis of an emergency order, the temporary
guardian shall submit a report to the court describing the circumstances, including the name of the
protected person, the place, date, and nature of the services, and the access to the person, whether
voluntary or by forcible entry. This report shall become part of the court record.
- 11 -
(6) If the person requires continued protective services after a renewal order has expired, the
temporary guardian shall immediately petition the court for an order in accordance with Section
62A-3-305
. The petitioner is immune from civil liability for filing a petition as provided in this part
if he has acted in good faith.
Section 8.
Section
62A-3-308
is amended to read:
62A-3-308. Peace officer's authority to transport disabled or elder adult to facility --
Detainment of adult at facility -- Time for notice, petition, hearing.
(1) Notwithstanding the emergency procedures set forth in Sections
62A-3-306
and
62A-3-307
, a peace officer may remove and transport a disabled or elder adult to an appropriate
[long-term care facility, as defined in Section 62A-3-202
,] medical facility, or shelter facility, if the
officer has probable cause to believe, from personal observation, that:
(a) the disabled or elder adult will suffer immediate and irreparable physical injury or death
if [he is] not immediately placed in a [long-term care facility] safe environment;
(b) the disabled or elder adult refuses to consent or is incapable of consenting; and
(c) it is not possible to follow the procedures described in this part.
(2) The division and the persons entitled to notice pursuant to this part shall be notified of
the detention described in Subsection (1), within four hours.
(3) The division shall file a petition pursuant to Section 62A-3-307
within 24 hours, not
including Saturdays, Sundays, and legal holidays, after the transportation of the disabled or elder
adult has occurred. The court shall hold a hearing on this petition and render its decision within 48
hours after the transportation of the disabled or elder adult.
Section 9.
Section
62A-3-309
is amended to read:
62A-3-309. Petition by agency when caretaker refuses to allow services -- Content of
petition -- Injunction.
(1) When a disabled or elder adult is in need of protective services and the caretaker refuses
to allow the provision of those services, the division may petition the court for injunctive relief
prohibiting the caretaker from interfering with the provision of protective services.
(2) The division's petition under Subsection (1) shall allege facts sufficient to show that the
- 12 -
disabled or elder adult is in need of protective services, that he either consents or lacks the capacity
to consent to those services, and that the caretaker refuses to allow the provision of those services
or to order other appropriate relief.
(3) The court may, on appropriate findings and conclusions in accordance with Rule 65A,
Utah Rules of Civil Procedure, issue an order enjoining the caretaker from interfering with the
provision of protective services.
Section 10.
Section
62A-3-310
is amended to read:
62A-3-310. Director as trustee, receiver, custodian, or guardian.
[The] In cases where abuse, neglect, or exploitation of a disabled or elder adult has been
determined to exist, the director or his designee is authorized to act as, and may be appointed by the
court as[,] trustee, receiver, custodian, or guardian over the disabled or elder adult, his estate, or both,
in order to prevent or [cause discontinuance of] discontinue that abuse, neglect, or exploitation[,
pursuant to pertinent] in accordance with the provisions of Title 75, [the] Utah Uniform Probate
Code.
Section 11.
Section
62A-3-311
is amended to read:
62A-3-311. Reports and information confidential -- Exceptions -- Anonymity of person
making report -- Exceptions -- Violation -- Penalty -- Limitation on privilege.
(1) [Any] Notwithstanding the provisions of Title 63, Chapter 2, Government Records
Access Management Act, any report made pursuant to this part and other information obtained as
a result of a report in the possession of the division is confidential and not open to public inspection.
However, a report, any part of a report, or any information obtained as a result of a report may be
made available to:
(a) a police or law enforcement agency investigating a report of known or suspected adult
abuse [or], neglect, or exploitation;
(b) a physician licensed to practice medicine in this state under Sections
58-12-26
through
58-12-43
, Utah Medical Practice Act, who reasonably believes that a disabled or elder adult may be
the subject of abuse [or], neglect, or exploitation;
(c) any state or local agency [of this state] or contract entity that has responsibility or
- 13 -
authority to care for, treat, or supervise an adult who is the subject of a report;
(d) the person who is the subject of the report or the guardian of that person;
(e) a court, upon finding access to the records may be necessary for the determination of an
issue before it;
(f) the appropriate county attorney, district attorney, or the state attorney general's office;
(g) the Division of Occupational and Professional Licensing, acting under Title 58, Chapter
62, Health Care Assistant Registration Act, for the purpose of investigating a report of unlawful or
unprofessional conduct the division has reason to believe involves adult abuse, exploitation, or
neglect; and
(h) a person engaged in bona fide research, [when approved by] or a multi-disciplinary
resource team, upon approval of the director of the division.
(2) (a) The anonymity of the person or persons making the initial report and any others
involved in its subsequent investigation shall be preserved and may only be released in accordance
with the rules of the division.
(b) The division's rules may only provide for release of identifying information as provided
in Subsection (2)(a), if the division finds the:
(i) release would prevent a public injustice; and
(ii) benefit to the public substantially outweighs any private right affected by the release.
(3) Any person who willfully permits or aids and abets the release of any report or
information in violation of this part is guilty of a class C misdemeanor.
(4) The physician-patient privilege is not a ground for excluding evidence regarding an
adult's injuries or the cause of those injuries in any proceeding resulting from a report made in good
faith pursuant to this part.
Section 12.
Section
62A-3-311.1
is amended to read:
62A-3-311.1. Statewide data base -- Restricted use and access.
(1) The division shall maintain a data base for reports of disabled or elder adult abuse [or],
neglect [reports], emotional or psychological abuse, or exploitation made pursuant to this part.
(2) The data base shall include:
- 14 -
[(a) an index of written reports maintained pursuant to Section 62A-3-311
;]
[(b) a summary of:]
[(i) all information contained in a written report;]
[(ii) the record of the final disposition of a report, including services offered and services
accepted; and]
[(iii) the plan for rehabilitative treatment;]
[(c)] (a) the names and identifying data of the abused [or], neglected, or exploited adult and
the reported abuser; [and]
[(d)] (b) information regarding whether or not the abuse, emotional or psychological abuse,
neglect, or exploitation was substantiated or unsubstantiated; and
(c) any other information that may be helpful in furthering the purposes of this part, as
determined by the division, subject to the restrictions of Subsection
62A-3-311
(2).
[(3) Information identifying a person who is the subject of a report determined to be
unfounded shall immediately be removed from the data base upon determination by the division that
the report is unfounded.]
[(4) (a) After completion of an investigation, a person who is the subject of a report may
request the director to amend or expunge the record of that report.]
[(b) If the director improperly refuses or fails to act within 30 days after that request, the
person who is the subject of the report may request a hearing in accordance with Title 63, Chapter
46b, Administrative Procedures Act.]
[(c) At that hearing, the division shall determine whether the report contained in the data
base should be amended or expunged because of inaccuracy or because it is being maintained in a
manner inconsistent with this part. Information from the data base is available only to the
employees specifically designated by the executive director and the person who is the subject of a
report.]
[(5)] (3) Information obtained from the data base may be used only for:
(a) compiling statistical summaries that do not include names or other identifying data;
(b) granting or denying licenses or other grants of privilege by the department where
- 15 -
identification as a possible adult abuser may be relevant to the privilege in question, in accordance
with Subsection (4); and
(c) investigation and action by the Division of Occupational and Professional Licensing
regarding registration of a health care assistant under Title 58, Chapter 62, Health Care Assistant
Registration Act.
[(6)] (4) (a) A license or privilege may not be denied under Subsection [(5)] (3) solely on
the basis of information in the data base.
(b) Before a license or privilege may be denied under Subsection [(5)] (3), the department
shall conduct a review and provide the person making application for the license or privilege with
notice and an opportunity to be heard in accordance with Title 63, Chapter 46b, Administrative
Procedures Act.
Section 13.
Section
62A-3-312
is amended to read:
62A-3-312. Enforcement by division -- Duty of county or district attorney.
(1) The division may take action as may be necessary to enforce the provisions of this part.
It is the duty of the county [attorney] or district attorney as appropriate under Sections
17-18-1
,
17-18-1.5
, and
17-18-1.7
, to assist and represent the division in that action, and to initiate legal
proceedings and take appropriate action to prosecute the alleged offender.
(2) When the county [attorney] or district attorney fails to act upon the request of the
division within 30 days of the request, the division may request the attorney general to act and, in
his discretion, he may assume the responsibilities and carry the action forward in place of the county
[attorney] or district attorney.
[(3) Upon receiving a report of a disabled adult who is the victim of abuse, neglect, or
exploitation, the division shall notify the county attorney or district attorney, who may initiate legal
proceedings and take action as necessary to prosecute the alleged offender.]
Section 14.
Section
76-5-111
is enacted to read:
76-5-111. Abuse, neglect, or exploitation of a disabled or elder adult.
(1) As used in this section:
(a) "Abuse" means:
- 16 -
(i) attempting to cause, or causing physical harm;
(ii) placing another in fear of imminent physical harm;
(iii) physical injury caused by acts or omissions;
(iv) unlawful detention or unreasonable confinement;
(v) gross lewdness; or
(vi) deprivation of life-sustaining treatment, except:
(A) as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
(B) when informed consent has been obtained.
(b) "Business relationship" means a relationship between two or more individuals or entities
where there exists an oral or written agreement for goods or services.
(c) "Caretaker" means any person, corporation, or public institution that has assumed by
relationship, contract, or court order the responsibility to provide a disabled or elder adult with food,
shelter, clothing, medical care, or other necessities.
(d) "Deception" means:
(i) a misrepresentation or concealment:
(A) of a material fact relating to services rendered, disposition of property, or use of property
intended to benefit a disabled or elder adult;
(B) of the terms of a contract or agreement entered into with a disabled or elder adult; or
(C) relating to the existing or preexisting condition of any property involved in a contract
or agreement entered into with a disabled or elder adult; or
(ii) the use or employment of any misrepresentation, false pretense, or false promise in order
to induce, encourage, or solicit a disabled or elder adult to enter into a contract or agreement.
(e) "Disabled adult" means a person 18 years of age or older who is impaired because of
mental illness, mental deficiency, physical illness or disability, or other cause to the extent that the
person lacks sufficient understanding or capacity to make or communicate informed decisions
concerning his person, or is unable to care for his own personal safety or provide necessities such
as food, shelter, clothing, or medical care, without which physical injury or illness may occur. A
person who is, in good faith, under treatment solely of a spiritual means, through prayer, in
- 17 -
accordance with the tenets and practices of a recognized church or religious denomination, and by
an accredited practitioner thereof, shall not be considered a disabled adult for that reason alone.
(f) "Elder adult" means a person who is 65 years of age or older.
(g) "Endeavor" means to attempt or try.
(h) "Informed consent" means:
(i) a written expression by the person or authorized by the person, stating that he fully
understands the potential risks and benefits of the withdrawal of food, water, medication, medical
services, shelter, cooling, heating, or other services necessary to maintain minimum physical or
mental health, and that he desires that the services be withdrawn. A written expression is valid only
if the person is of sound mind when the consent is given, and the consent is witnessed by at least two
individuals who do not benefit from the withdrawal of services; or
(ii) consent to withdraw food, water, medication, medical services, shelter, cooling, heating,
or other services necessary to maintain minimum physical or mental health, as permitted by court
order.
(i) "Intimidation" means communication by word or act to a disabled or elder adult that he
will be deprived of money, food, clothing, medicine, shelter, supervision, or medical services, or that
he will suffer physical violence.
(j) "Lacks capacity to consent" means an impairment by reason of mental illness,
developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs,
chronic intoxication, short-term memory loss, or other cause to the extent that a disabled or elder
adult lacks sufficient understanding of the nature or consequences of decisions concerning his person
or property.
(k) "Neglect" means:
(i) the failure of a caretaker to provide habilitation, care, nutrition, clothing, shelter,
supervision, or medical care; or
(ii) a pattern of conduct, without the disabled or elder adult's informed consent, resulting in
deprivation of food, water, medication, medical services, shelter, cooling, heating, or other services
necessary to maintain minimum physical or mental health.
- 18 -
(l) "Physical injury" means the impairment of physical condition and includes any skin
bruising, pressure sores, bleeding, malnutrition, dehydration, burns, bone fracture, subdural
hematoma, soft tissue swelling, injury to any internal organ, or any physical condition that imperils
the health or welfare of the disabled or elder adult and that is not a serious physical injury.
(m) "Position of trust and confidence" means the position of a person who:
(i) is a parent, spouse, adult child, or other relative by blood or marriage of a disabled or
elder adult;
(ii) is a joint tenant or tenant in common with a disabled or elder adult;
(iii) has a legal or fiduciary relationship with a disabled or elder adult, including a
court-appointed or voluntary guardian, trustee, attorney, or conservator; or
(iv) is a caretaker of a disabled or elder adult.
(n) "Serious physical injury" means any physical injury or set of physical injuries that:
(i) seriously impairs a disabled or elder adult's health;
(ii) was caused by use of a deadly or dangerous weapon;
(iii) involves physical torture or causes serious emotional harm to a disabled or elder adult;
or
(iv) creates a reasonable risk of death.
(o) "Sexual exploitation" means the production, distribution, possession, or possession with
the intent to distribute material or a live performance depicting a nude or partially nude disabled or
elder adult who lacks the capacity to consent, for the purpose of sexual arousal of any person.
(2) Under any circumstances likely to produce death or serious physical injury, any person,
including a caretaker, who causes a disabled or elder adult to suffer serious physical injury or, having
the care or custody of a disabled or elder adult, causes or permits that adult's person or health to be
injured, or causes or permits a disabled or elder adult to be placed in a situation where his person or
health is endangered, is guilty of the offense of aggravated abuse of a disabled or elder adult as
follows:
(a) if done intentionally or knowingly, the offense is a second degree felony;
(b) if done recklessly, the offense is third degree felony; and
- 19 -
(c) if done with criminal negligence, the offense is a class A misdemeanor.
(3) Under circumstances other than those likely to produce death or serious physical injury
any person, including a caretaker, who causes a disabled or elder adult to suffer physical injury,
abuse, or neglect, or having the care or custody of a disabled or elder adult, causes or permits that
adult's person or health to be injured, abused, or neglected, or causes or permits a disabled or elder
adult to be placed in a situation where his person or health is endangered, is guilty of the offense of
abuse of a disabled or elder adult as follows:
(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
(b) if done recklessly, the offense is a class B misdemeanor; and
(c) if done with criminal negligence, the offense is a class C misdemeanor.
(4) (a) A person commits the offense of exploitation of a disabled or elder adult when the
person:
(i) is in a position of trust and confidence, or has a business relationship, with the disabled
or elder adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain
or use, the disabled or elder adult's funds, credit, assets, or other property with the intent to
temporarily or permanently deprive the disabled or elder adult of the use, benefit, or possession of
his property, for the benefit of someone other than the disabled or elder adult;
(ii) knows or should know that the disabled or elder adult lacks the capacity to consent, and
obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or endeavoring
to obtain or use, the disabled or elder adult's funds, assets, or property with the intent to temporarily
or permanently deprive the disabled or elder adult of the use, benefit, or possession of his property
for the benefit of someone other than the disabled or elder adult;
(iii) unjustly or improperly uses or manages the resources of a disabled or elder adult for the
profit or advantage of someone other than the disabled or elder adult;
(iv) unjustly or improperly uses a disabled or elder adult's power of attorney or guardianship
for the profit or advantage of someone other than the disabled or elder adult;
(v) involves a disabled or elder adult who lacks the capacity to consent in the facilitation or
furtherance of any criminal activity; or
- 20 -
(vi) commits sexual exploitation of a disabled or elder adult.
(b) A person is guilty of the offense of exploitation of a disabled or elder adult as follows:
(i) if done intentionally or knowingly and the aggregate value of the resources used or the
profit made is or exceeds $5,000, the offense is a second degree felony;
(ii) if done intentionally or knowingly and the aggregate value of the resources used or the
profit made is less than $5,000 or cannot be determined, the offense is a third degree felony;
(iii) if done recklessly, the offense is a class A misdemeanor; or
(iv) if done with criminal negligence, the offense is a class B misdemeanor.
(5) It does not constitute a defense to a prosecution for any violation of this section that the
accused did not know the age of the victim.
Section 15.
Section
76-5-111.1
is enacted to read:
76-5-111.1. Reporting requirements.
(1) Any person, including but not limited to, a social worker, physician, psychologist, nurse,
teacher, or employee of a private or public facility serving adults, who has reason to believe that any
disabled or elder adult has been the subject of abuse, emotional or psychological abuse, neglect, or
exploitation shall immediately notify the nearest peace officer, law enforcement agency, or local
office of Adult Protective Services within the Department of Human Services, Division of Aging
and Adult Services.
(2) Anyone who makes that report in good faith is immune from civil liability in connection
with the report.
(3) (a)When the initial report is made to a peace officer or law enforcement agency, and the
disabled or elder adult requires protection, the officer or agency shall immediately notify the nearest
local office of Adult Protective Services and that office shall coordinate its investigation with law
enforcement, and provide protection to the disabled or elder adult as necessary.
(b) When the initial report involves a resident of a long-term care facility, as defined in
Section 62A-3-202
, the local long-term care ombudsman within the Department of Human Services,
Division of Aging and Adult Services, shall be immediately notified. The ombudsman and the local
Adult Protective Services office shall cooperate in conducting the investigation.
- 21 -
(c) When the initial report or investigation by an Adult Protective Services office indicates
that criminal abuse, neglect, or exploitation, as defined in Section 76-5-111
has occurred, or that any
other criminal offense against a disabled or elder adult has occurred, the local Adult Protective
Services office shall immediately notify the local law enforcement agency. That law enforcement
agency shall initiate an investigation in cooperation with the local Adult Protective Services office.
(4) A person who is required to report suspected abuse, emotional or psychological abuse,
neglect, or exploitation of a disabled or elder adult under Subsection (1), and who willfully fails to
do so, is guilty of a class B misdemeanor.
Section 16.
Repealer.
This act repeals:
Section 62A-3-302.5
, Criminal offenses against a disabled adult -- Penalties.
Section 62A-12-223
, Abuse of mentally ill persons -- Criminal and civil liability.
- 22 -
QuickLinks:
[Leg. Main Page]
[Enrolled Bills]
[Code Section Look Up]
[Committees]
[Legislators]
[Schedule]
[Journals]
Bill Related Links:
[Top of Bill]
If you have problems or suggestions, please email webmaster@code-co.com
Code-Co's Utah Law Internet Access http://www.code-co.com/utah/
© Copyright (html coding, links, images only) 1996. Code-Co.