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Table of Contents

4D APS COURT

Introduction

4D.1INVOLUNTARY PROTECTIVE SERVICES

4D.2ADULT GUARDIANSHIP/CONSERVATORSHIP

4D.3MENTAL HEALTH HOSPITALIZATION

4D.4REFERRALS FOR CIVIL PROTECTIVE ORDERS (KRS CHAPTER 403)

4D.5ENFORCEMENT OF "FOREIGN PROTECTIVE ORDERS”

SOP 4D

R. 7/1/09

APS COURT

INTRODUCTION:

When an adult, as defined by KRS Chapter 209, is living in conditions, which create a substantial risk of death or could cause immediate and serious physical harm to himself or others the SSW assesses the need for involuntary protective services and requests the least restrictive intervention.

Before the SSW can approach the court for an ex-parte order or file a petition for an emergency protective service order, all of the following conditions must exist:

1. The adult lacks capacity and refuses to consent to services;
2. The adult is in a state of abuse or neglect and an emergency exists;
3. The adult is in need of protective services; and,
4. No person is authorized by law or court order to give consent or such person refuses to consent.

If a substantial risk of death or serious physical harm is evident, the SSW determines whether an Emergency Protective Services Order (DPP-251) or an Emergency Protective Order Ex-Parte (DPP-252) needs to be filed by following procedures outlined inSOP 4D.1.

If a substantial risk of death or serious physical harm is not evident, but an adult is unable to manage personal affairs, financial affairs or to carry out the instrumental activities of daily living, a guardian or conservator may be needed. Court involvement is required to appoint an appropriate guardian/conservator. If family, friends or other interested and qualified individuals are able and willing to serve as guardian or conservator, the SSW may offer consultation or assistance to the individual applying to be appointed as guardian. Department staff may receive orders from the court to serve as a member of an Interdisciplinary Team (IDT) in guardianship/ conservatorship hearings.

When an assessment reveals an adult is in need of hospitalization for mental health/mental retardation issues, the SSW counsels the adult to secure voluntary treatment from a mental health center or hospital. Assistance from available family members or caregivers may also be sought. If these efforts are unsuccessful and the individual appears to be dangerous to self or others due to mental illness or mental retardation, involuntary hospitalization may be considered under

KRS 202A.026 Criteria for Involuntary Hospitalization (mentally ill) or

KRS 202B.040 Criteria for Involuntary Admission (mental retardation)

SOP 4D.1

R. 7/1/09

INVOLUNTARY PROTECTIVE SERVICES

COA STANDARDS:

  • S11.2 Adult Protective Services - Service Elements

LEGAL AUTHORITY:

  • 42 U.S.C. 1397 includes the provision of adult protection services in the State's plan.
  • KRS 209.040 Remedies - injunctive relief
  • KRS 209.100 Emergency protective services
  • KRS 209.110 Petition - Guardian ad litem - Summons - Notice - Hearing - Report to court - Fee
  • KRS 209.120 Findings by court - Limitations of court's power - Termination of order
  • KRS 209.130 Ex parte order of court - Implementation
  • 922 KAR 5:070 Adult Protective Services

PROECDURES:

1.The SSW may use the following questions in determining if an adult lacks the capacity to consent:

(a)Can the adult make and express choices?

(b)Can the adult give reasons for the choice?

(c)Are the reasons grounded in reality?

(d)Does the adult understand the consequences of the decision?

(e)Does the adult accept the consequence?

(f)Are the adult's responses to questions rational?

(g)Are the adult's responses contradictory to behavior or other statements?

(h)Are the adult's expectations of what will happen in a certain situation within the realm of possibility or contrary to reality?

(i)Are the adult's responses made in context to the situation?

(j)What is different about the situation today than any other day which would require court-ordered intervention?

2. The SSW may use the following assessment instruments in determining capacity.

(a)Mini Mental Status Examination; or

(b)Functional Assessment.

3.When filing a Petition, depending upon the adult's situation the SSW as a representative of the Cabinet may:

(a)Seek an Emergency Protective Order Ex Parte-DPP-252. A request to the court for an Emergency Protective OrderEx-Parte is used when facts indicate the adult’s situation is so dire that the seventy two (72) hour wait for a hearing on the petition would place the adult at risk of death or serious physical harm. When the client is in need of emergency protective services, the SSW:

(1)Attempts to obtain appropriate supervisory approval;

(2)Attempts to consult with the Office of Legal Services;

(3)Presents the Circuit or Family Court with an affidavit or sworn testimony. If the Circuit or FamilyCourt Judge is not available, a District Court Judge may be contacted;

(4)Presents specific facts of conclusion to the court that demonstrate the adult is in danger of suffering immediate and irreparable physical harm or death;

(5)Routinely includes in the affidavit or sworn testimony, the need for forcible entry by law enforcement into the home of the adult on whose behalf the involuntary services are sought, and the need for transportation by the Emergency Medical Service; and,

(6) Files a petition as soon as possible if anEmergency Protective Order Ex-Parte is issued.

(b)File a petition for an Emergency Protective Services Order-DPP-251. A petition for an Emergency Protective Service Order is filed when there is some margin of time and the potential consequences to the adult are not as immediate. Prior to filing a petition for an Emergency Protective Service Order, the SSW determines that all filing criteria exist. In order to accomplish this, the SSW:

(1)Consults with the FSOS and arranges for a joint visit with the FSOS or other supervisory staff as appropriate;

(2)Makes a joint decision with the FSOS as to the appropriateness of requesting a court order;

(3)Requests permission from the SRA or designee to file a petition for a court order;

(4)Consults with available Regional Office staff or Family and Adult Consultative Services Branch to assist in the process;

(5)Consults with the Office of Legal Services as soon as the decision has been made to seek a court order;

(6)If the Office of Legal Services is unavailable seeks assistance from the County or Commonwealth's Attorney;

(7)If the Office of Legal Services is not consulted when the SSW obtains an Ex-Parte Order or petitions the court for an Emergency Protective Service Order, forwards a copy of the Order or Petition to the Office of Legal Services;

(8)Reports to the court on a monthly basis when protective services are ordered for longer than one (1) month. The report describes the current circumstances, including the name, place, date, and nature of services provided and if necessary, justification for continuation of services.

4. The SSW files theVerified Petition for the Provision of Emergency Protective Services-DPP-250with both the DPP-251 and DPP-252.

5. The SSW as a representative of DCBS may seek a restraining order or other injunctive relief to prohibit interference in a protective service investigation or delivery of service.

  1. Prior to seeking injunctive relief or a restraining order, the SSW, FSOS or designee contacts the Office of Legal Services for consultation.
  2. If the Office of Legal Services is not available the SSW, FSOS or designee contacts the Office of Legal Servicesas soon as possible.

SOP 4D.2

R.11/15/05

ADULT GUARDIANSHIP/CONSERVATORSHIP

COA STANDARDS:

  • S11.2 Adult Protective Services - Service Elements

LEGAL AUTHORITY:

  • 42 U.S.C. 1397 includes the provision of adult protection services in the State's plan.
  • KRS 387.530 Filing of a petition - Contents - Application of person or entity desiring appointment
  • KRS 387.540 Interdisciplinary evaluation report.
  • KRS 387.740 Emergency powers of court - Petition and hearing on emergency appointment
  • 922 KAR 5:070 Adult Protective Services

PROCEDURES:

1.The Cabinet for Health and Family Services is a guardian of last resort and is not ordinarily or customarily appointed unless there are no other suitable individuals available. If no individuals are willing and able to serve, the SSW:

(a)Consults with the FSOS or designee to determine that:
(1)An urgent and bona fide need to initiate the action exists;
(2)It is the least restrictive measure;
(3)Filing the petition is in the best interest of the individual; and,
(4)No one else is willing to bring the petition;
(b)Discusses with and obtains approval from the Service Region Administrator or designee to initiate the process for state guardianship/conservatorship.
2.When the regional decision is made that the Cabinet may need to serve as the guardian or conservator, the SSW:
(a)Contacts the regional Guardianship supervisor or designee to discuss the
caseprior to initiating the guardianship/conservatorship court process;
(a)If appropriate, requests the regional Guardianship supervisor or designee to forward the AOC-740, Petition to Determine if Disabled;
(b)Completes the AOC-740 and signs the petition as a "Representative of the Cabinet for Health and Family Services” The signature is not notarized.
(c)Sends the completed AOC-740 and a copy of the Adult CQA to the regional Guardianship supervisor. The SSW making the referral completes all sections of the Adult CQA as fully as possible. The regional Guardianship supervisor or designee reviews the information submitted to see if all necessary information is provided, accepts the referral if appropriate, and completes the AOC-745, Application for Appointment of Fiduciary; and,
(d)Files the forms with the District Court after receiving the AOC-740 and the AOC- 745 from the regional Guardianship supervisor or designee.
3.If after the petition is filed, an emergency arises which would create a life threatening situation to the adult the SSW:
(a)Considers the least restrictive measures including all applicable services in SOP 4D.1 - Involuntary Protective Services;
(b)Contacts the regional Guardianship supervisor or designee to discuss the situation and obtain approval to file a AOC-747, Petition/Application for Emergency Appointment of Fiduciary;
(c)Completes the AOC-747 and an affidavit outlining the facts supporting the need for emergency guardianship. The SSW signs the petition as a "Representative of the Cabinet for Health and Family Services";
(d)Testifies at the emergency hearing which is held within forty eight (48) hours, or when the court sets the hearing time;
(e)If granted, immediately contacts the regional Guardianship supervisor to notify them of the appointment;
(f)Faxes a copy of the AOC-748, Order for Emergency Appointment of Fiduciary to the regional Guardianship supervisor or designee; and,
(g)Testifies at the hearing to present facts supporting the need for a guardian/ conservator and the disability of the adult.

4.According to KRS Chapter 387, Interdisciplinary Team Members (IDT), whenever possible, are chosen from among employees of the Cabinet for Health and Family Services residing or working in the area.

(a)The SSW serves at no additional compensation. To serve on the Interdisciplinary Team the SSW must:

  • Be a Licensed Clinical Social Worker; or
  • Be a Licensed Social Worker; or
  • Be a Certified Social Worker; or
  • Have a Baccalaureate degree in Social Work or Social Welfare; or
  • Have a Master's degree in Social Work; or
  • Have a Doctoral degree in Social Work; or
  • Have a Baccalaureate degree in a related field, 2 years experience in a social work capacity, and the course work in the related field meet the equivalent standard for a social work program.

(b)A SSW with a related degree may request a college or university with an accredited social work program to determine if the course work in the related degree meets the course work for a social work degree.

(c)If the equivalency standards are met, the SSW submits the review and determination by the university to the Kentucky Social Work Licensure Board for approval.

(d)When a SSW is ordered by the court to serve on an Interdisciplinary Team that does not have the required degree or certification, the SSW tells the court and the Office of Legal Services in writing, that the SSW does not meet the qualifications listed above.

(e)If the court does not rescind the order, the SSW completes the evaluation and submits it to the court.In completing the Interdisciplinary Team Evaluation report the SSW, at a minimum, addresses the following:

(1)The individual’s relationship with family;

(2)The individual’s functioning within his environment;

(3)The individual’s ability to perform activities of daily living and instrumental activities of daily living;

(4)Any neglect, abuse, exploitation or self-neglect history; and,

(5)Any alternatives to guardianship/conservatorship.

(f)In the absence of court directives to the contrary, the IDT evaluation may include DCBS case data no more than three (3) months old.

(1)A narrative of the IDT evaluation may be attached to the court form(s). The SSW may submit a single or joint report.

(2)If the SSW testifies on behalf of the IDT team, the SSW reviews all IDT member's evaluations.

(3)The SSW routinely has sixty (60) days from the filing of the petition to complete the IDT evaluation report, except for emergency guardianship petitions.

(4)The SSW submits the IDT evaluation report to the court and provides copies to the attorneys and/or guardian ad litem ten (10) days prior to the hearing.

SOP 4D.3

R.11/15/05

MENTAL HEALTH HOSPITALIZATION

COA STANDARDS:

  • S11.2 Adult Protective Services - Service Elements

LEGAL AUTHORITY:

  • 42 U.S.C. 1397 includes the provision of adult protection services in the State's plan.
  • KRS 202A.026 Criteria for involuntary hospitalization (mentally ill)
  • KRS 202A.051 Proceedings for 60-day and 360-day involuntary hospitalizations - Petition contents
  • KRS 202B.040 Criteria for involuntary admission (mental retardation)
  • KRS 202B.100 Proceedings for involuntary admission - Petition - Duties of court - Disposition
  • 922 KAR 5:070 Adult Protective Services

PROECDURES:

1.While DCBS staff have no statutorily mandated role in the filing of a petition for involuntary hospitalization, the SSW may file a petition in compliance with KRSChapter 202A or KRS Chapter 202B if an adult refuses to obtain treatment; no other person is available and willing to provide assistance and file a petition; and, all other resources are unavailable. The SSW:

(a)Obtains prior approval from the Service Region Administrator or designee;

(b)Files the petition in the county of employment as a “Representative of the Cabinet for Health and Family Services”; and,

(c)Seeks assistance from law enforcement when the protective service situation indicates an immediate danger to the SSW, the adult or others.

2.Involuntary Hospitalization of Persons Who Have Mental Illness. The criteria for involuntary hospitalization of persons who have mental illness are:

(a)The adult is mentally ill;

(b)The adult is a danger or threat of danger to self or others as a result of the mental illness;

(c)The adult can reasonably benefit from treatment; and,

(d)Hospitalization is the least restrictive intervention.

Any person may bring a petition for involuntary hospitalization in District Court.

3.Involuntary Hospitalization of Person Who Are Mentally Retarded. The criteria for involuntary hospitalization of persons who are mentally retarded are:

(a)The adult is mentally retarded;

(b)Presents a danger or threat of danger to self or others;

(c)Requires hospitalization or placement in a mental retardation residential treatment as the least restrictive mode of treatment; and

(d)May reasonably benefit from treatment in the hospital or mental retardation residential treatment center.

Any person may bring a petition for involuntary hospitalization in District Court.

4.The SSW must consider the provisions of L.C. & E.W. v Olmstead when considering assistance concerning involuntary hospitalization. Olmstead requires all staff who work with institutionalized persons or those at risk of institutionalization to:

(a)Consider the way services are delivered to an individual;

(b)Ensure that service delivery promotes the individual’s independence and self-determination; and,

(c)Reconsider policies that promote institutional placements rather than more integrated service settings

(Link to Health Services)

SOP 4D.4

R.11/15/05

REFERRALS FOR CIVIL PROTECTIVE ORDERS

(KRS CHAPTER 403)

COA STANDARDS:

  • S11.2 Adult Protective Services - Service Elements

LEGAL AUTHORITY:

  • 18 USC 922 (g)(8)&(9)
  • 42 U.S.C. 1397 includes the provision of adult protection services in the State's plan.
  • KRS 403.720 Definitions
  • KRS 403.725 Petition, who may file - Protective orders
  • 922 KAR 5:070 Adult Protective Services

PROECDURES:

1.DCBS staff is not permitted to petition on behalf of adults, but may assist appropriate individuals in petitioning District Court for civil protective orders. A family member or member of an unmarried couple who is an alleged victim of domestic violence and abuse is able to obtain immediate short-term civil protection through the District Court for both adult and child victims. Those persons eligible for protection include a:

(a)Spouse,

(b)Former spouse,

(c)Member of an unmarried couple which allegedly has a child in common,

(d)Any children of the couple,

(e)A member of an unmarried couple who are living together or may have lived together in the past,

(f)Child,

(g)Stepchild, and,

(h)Any person related by blood or marriage within the second degree. This includes a parent, grandparent, sister, son or daughter in law, spouse's parent, spouse's grandparent, spouse's brother or sister.

2.Emergency Protective Orders (EPO) - When, upon review of the petition, a court finds that the allegations indicate immediate and present danger of domestic violence and abuse the court may issue, ex parte, an emergency protective order. An (EPO) is effective for a period of time fixed in the order not to exceed fourteen (14) days at which time a full hearing is held. An emergency protective order may be reissued for up to fourteen (14) days or as the court determines is necessary for the protection of the petitioner if service has not been made on the adverse party by the fixed court date and time. The court may issue an order that includes one or any combination of the following:

(a)The respondent may be restrained from any contact or communication with the petitioner except as directed by the court;

(b)The respondent may be restrained from committing further acts of domestic violence and abuse;

(c)The respondent may be restrained from disposing of or damaging any of the property of the parties;

(d)The respondent may be directed to vacate the residence shared by the parties;

(e)Temporary custody may be granted; or

(f)The Judge may enter other orders to aid in stopping or eliminating future acts of domestic violence and abuse.

3.Domestic Violence Order (DVO) - Following the issuance of a summons for a hearing, or at a full hearing for an EPO, if the court finds from a preponderance of the evidence, that an act or acts of domestic violence and abuse have occurred and may occur again, the court may issue a (DVO). A domestic violence order is in effect for a period of time fixed by the court not to exceed three (3) years and may be reissued upon expiration for an additional period of up to three (3) years. The number of times that it can be reissued is unlimited. The court may issue a DVO that includes one or any combination of the following orders: