(a) If requested by the Department, either on its own behalf or on behalf of another public or private agency designated by the Mayor, the Attorney General shall promptly conduct a factual inquiry and, if legally supportable, file a petition in court for a provisional protection order. That petition shall state, insofar as the facts can be ascertained with reasonable diligence:
(1) The name, age, physical description, and location of the adult determined by the Department to be in need of protective services;
(2) Whether the adult and any other person(s) expected to be a party to the proceeding are indigent and therefore entitled to the appointment of counsel under subsection (b) of this section;
(3) Facts to substantiate that the adult is in need of protective services;
(4) The particular protective services or other relief sought to remedy or substantially reduce the likelihood of abuse, neglect, self-neglect, or exploitation by another; and
(5) Depending on the circumstances, facts to substantiate that:
(A) Failure of the adult in need of protective services to either object or affirmatively consent to those services does not constitute a knowing and voluntary decision to refuse services, but rather is the result of the adult's inability to consent due to extreme physical or mental impairment or incapacity;
(B) The adult in need of protective services has objected to the provision of those services out of fear or intimidation instilled by another; or
(C) Reasonable access to the adult in need of protective services has been denied by a 3rd person.
(b) Unless continued by the court, a nonjury hearing shall be held on a petition for a provisional protection order within 15 days (excluding Saturdays, Sundays, and legal holidays) after it is filed with the court. The Attorney General shall ensure that, at least 10 days (excluding Saturdays, Sundays, and legal holidays) before the hearing, notice of the hearing date and a copy of the petition are served on the adult in need of protective services and, if applicable and ascertainable with reasonable diligence, the person(s) allegedly responsible for the abuse, neglect, or exploitation, for using fear or intimidation to coerce the adult's objection to the provision of services, or for denying an APS worker reasonable access to the adult. Notice shall be effected by personal service, substitute service on a person of suitable age and discretion at the usual place of abode or employment of the person to be notified, or registered or certified mail. Pursuant to rules to be established by the court, subpoenas shall issue directing the appearance of persons whose presence at the hearing is essential to the relief sought in the petition. The adult in need of protective services and any other person on whom notice is served under this subsection shall have the right to retain counsel, and if indigent, to have counsel promptly appointed by the court upon the Attorney General's filing of a petition under subsection (a) of this section. Every effort shall be made to secure the presence of the adult in need of protective services at the hearing; failure of the adult to appear shall be explained by his or her counsel to the satisfaction of the court. All parties to the proceeding may present evidence and cross-examine witnesses. Testimony of the person(s) allegedly responsible for the abuse, neglect, or exploitation, and the fruits of that testimony, shall be inadmissible as evidence in a subsequent criminal trial except in a prosecution for perjury or false statement.
(c) The court shall maintain a register of lawyers who have expressed an interest in representing indigent persons entitled to the appointment of counsel under subsection (b) of this section, and shall attempt insofar as possible to make appointments from this register. Publicly funded or pro bono legal services shall be considered and given priority by the court. If such services are unavailable, compensation for appointed counsel shall be at the hourly rate established pursuant to § 11-2604(a), and, unless expressly waived by the court, shall be subject to a maximum amount of $750 per proceeding. Counsel shall also be reimbursed for expenses reasonably incurred. Compensation for investigative, expert, and other services shall be in accordance with § 11-2605. This subsection shall be implemented pursuant to procedures established by the court.
(d) If the court finds that the Attorney General has proven the averments in the petition by a preponderance of the evidence, it may:
(1) Direct any person to refrain from abusing, neglecting, exploiting, directly or indirectly interfering with the provision of services to, residing with, or otherwise contacting the adult in need of protective services;
(2) Direct a caregiver to fulfill his, her, or its legal or contractual responsibilities, or to refrain from inadequately carrying out voluntarily assumed responsibilities;
(3) Direct the Mayor to petition for the appointment of a conservator or guardian;
(4) Direct the Mayor to provide specified or unspecified protective services, including at night and on weekends if necessary; provided, that the court shall not direct the Mayor to provide a type of service not otherwise made available by the District government;
(5) Direct the Mayor, a caregiver, or, when appropriate, another party to the proceeding to remove the adult in need of protective services to a hospital, nursing home, community residence facility, hospice, or other appropriate facility (except a facility or part of a facility that has as its principal purpose the diagnosis and treatment of mental illnesses and disorders), so long as the placement is the least restrictive setting available in which the adult's needs can be adequately met;
(6) Direct any person to pay or reimburse the District, in accordance with § 7-1910, for relief granted under paragraph (4) or (5) of this subsection; or
(7) Direct any combination of the above.
(e) When granting relief under subsection (d)(3) through (5) of this section, the court shall first consider those remedies that encourage maximum self-determination and are least restrictive of personal liberty. In so doing, the court shall adopt a strong, rebuttable presumption in favor of home care over institutionalization. Secondarily, the court shall inquire about and take into consideration potential expense to the District.
(f) The court may modify or rescind a provisional protection order upon the motion of any party to the original proceeding and for good cause shown. Except as provided in subsection (g) of this section, a provisional protection order granting the relief in subsection (d)(4) or (5) of this section shall remain effective as to that relief for such period up to 45 calendar days as the court may specify, except that on the motion of any party to the original proceeding and for good cause shown, the court may grant a single extension for a period not to exceed an additional 45 calendar days. This 90-day time limitation may not be circumvented by the attempted issuance of a new order or reissuance of the original order before or after the extension period has expired. Relief granted under subsection (d)(1) through (3) and (6) of this section shall remain effective for such period as the court may specify.
(g) When determining the duration of a provisional protection order that directs the Mayor to provide protective services, the court shall take into account the number of days, if any, that the District has already provided services pursuant to § 7-1905(a) or § 7-1907, and in no event shall the issuance of a protection order result in the District's being required to provide more than 90 days of services in any particular case.
CREDIT(S)
(Mar. 14, 1985, D.C. Law 5-156, § 7, 32 DCR 13; Mar. 8, 2006, D.C. Law 16-67, § 2(f), 53 DCR 40.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 6-2506.
Effect of Amendments
D.C. Law 16-67, in the lead-in text of subsec. (a), subsec. (b), and subsec. (d), substituted “Attorney General” for “Corporation Counsel”; in subsec. (b), substituted “Attorney General's” for “Corporation Counsel's”; in subsec. (a)(4), substituted “neglect, self-neglect” for “neglect”; and, in subsec. (a)(5)(A), substituted “impairment or incapacity” for “impairment”.
Legislative History of Laws
For legislative history of D.C. Law 5-156, see Historical and Statutory Notes following § 7-1901.
For Law 16-67, see notes following § 7-1901.
Miscellaneous Notes
Delayed application of Law 5-156: See Historical and Statutory Notes following § 7-1901.