71-6-107 - Provision of protective services without the consent of the adult.
71-6-107. Provision of protective services without the consent of the adult.
(a) (1) (A) If the department determines that an adult who is in need of protective services is in imminent danger if that adult does not receive protective services and lacks capacity to consent to protective services, then the department may file a complaint with the court for an order authorizing the provision of protective services necessary to prevent imminent danger of irreparable physical or mental harm, or both, and/or the cessation of life. The judge or chancellor shall hear the complaint ahead of any other business then pending in court or in chambers. This order may include the designation of an individual or organization to be responsible for the personal welfare of the adult and for consenting to protective services in the adult's behalf. The complaint must allege specific facts sufficient to show that the adult is in imminent danger if the adult does not receive protective services and lacks capacity to consent to protective services. Prior to filing a complaint with the court for an order authorizing removal of an adult from that adult's chosen place of residence, the department shall make reasonable efforts to exhaust all practical alternatives to the removal of such adult from such place of residence.
(B) In situations where the department must present a petition for emergency removal of an adult in imminent danger and a chancellor or circuit judge is unavailable, the department may present petitions to judicial officers with general sessions jurisdiction. Further proceedings shall be conducted in chancery or circuit court.
(C) For the purposes of this section, sexual abuse, as defined in this chapter, shall provide grounds for the department to obtain custody of an adult who lacks capacity to consent when such abuse relates to sexual activity or contact.
(2) The judge or chancellor or the general sessions court judge, prior to entering the order, must find that the adult is in imminent danger if the adult does not receive protective services and lacks capacity to consent to protective services.
(3) Within seven (7) days of entering an order pursuant to this section, or for good cause shown, then up to fifteen (15) days, the court shall hold a hearing on the merits. If such a hearing is not held within such time, the order authorizing the provision of protective services shall be dissolved.
(4) (A) The adult alleged to be in need of protective services and any person to whom the adult is lawfully married, if known and reasonably available, must be served with a copy of the complaint at least forty-eight (48) hours prior to the hearing, unless for good cause shown, a shorter time is allowed by the court. The adult and the adult's spouse have a right to be present and represented by counsel at the hearing. Failure to serve a copy of the complaint on a lawful spouse of the adult, if the spouse is not known or is not reasonably available as determined by the court, shall not prevent the provision of protective services, as ordered by the court, that may be necessary to prevent the adult from suffering imminent harm.
(B) If the adult alleged to be in need of protective services is indigent or, in the determination of the judge or chancellor, lacks capacity to waive the right to counsel, then the court shall appoint counsel for the adult alleged to be in need of protective services.
(C) If the adult alleged to be in need of protective services is indigent, court costs and the cost of representation of the adult shall be borne by the state; otherwise, the costs shall be borne by the adult. The state shall not be liable for the cost of counsel or court costs for the spouse of the adult; provided, however, that if the court finds that the department or an agency acting under subdivision (a)(7) has, without good cause, failed to serve a copy of the complaint on the lawful spouse of the adult, the court may assess attorneys fees for the spouse of the adult and court costs to the department or agency acting under subdivision (a)(7) not to exceed a total of two thousand dollars ($2,000); provided further, however, that the court may exceed the two thousand dollar ($2,000) limit upon making a specific finding of fact that the failure of the department or an agency to serve the complaint resulted in financial hardship upon the spouse or adult in excess of two thousand dollars ($2,000) and that the interests of justice require that the limit be exceeded in the particular case.
(D) If a court determines that appointment of a guardian ad litem is necessary, and if the adult is indigent, the cost for the guardian ad litem shall be borne by the state; otherwise the costs shall be borne by the adult.
(5) (A) Protective services necessary to prevent imminent danger of irreparable physical or mental harm, or both, and/or the cessation of life authorized by order pursuant to this section may include, but are not limited to, taking the adult into physical custody in the home, a medical or nursing care facility, or, if available, an alternative living arrangement exclusive of a developmental center operated by the department of mental health and developmental disabilities; provided, that the court finds that such custody is for the purpose of medical examination and treatment necessary to prevent imminent danger of irreparable physical or mental harm, or both, and/or the cessation of life or protection from abuse or neglect necessary to prevent imminent danger of irreparable physical or mental harm, or both, and/or the cessation of life, and that the court specifically authorizes such custody in its order. In determining what specific custodial authority to grant under this section, the court shall consider whether the imminent danger of irreparable physical or mental harm, or both, and/or the cessation of life is relatively mild or severe and authorize such custody as is appropriate under the circumstances. The department shall review the decree at least annually to determine whether the prerequisites for custody still exist.
(B) Within a reasonable period of time after an adult is taken into physical custody and placed other than in a medical or nursing care facility, the department shall cause an appropriate examination to be made of the adult to determine the cause or causes resulting in the adult's lack of capacity to consent, if such determination had not been made at the time of the final hearing.
(6) (A) In the event that the adult has sufficient resources to defray the costs of a medical or nursing care facility, or an appropriate alternative living arrangement, as decreed by the court pursuant to this subsection (a), and that without such resources the adult would be unable to enter such facility or alternative living arrangement, then the court may appoint a temporary guardian for such period as necessary to secure and disburse the adult's resources for that purpose, but for no longer than six (6) months from the entry of the order authorizing provision of protective services. However, the court in its discretion may extend such period for a period no longer than an additional six (6) months. The guardian appointed pursuant hereto shall file an accounting with the court as to the resources used.
(B) The court in its order may authorize the temporary guardian to exercise a limited power of attorney over any accounts the adult has in a bank, credit union, or other financial institution. The temporary guardian so designated shall deliver a copy of the order of the court to the financial institution prior to taking any action with regard to the accounts. The limited power of attorney shall authorize the temporary guardian to withdraw money from or freeze or unfreeze the account.
(C) Concurrent with the order of the court appointing a temporary guardian, the court shall issue a subpoena directed to the financial institution in compliance with the Financial Records Privacy Act, compiled in title 45, chapter 10, requesting the names of any co-owner or additional authorized signatories on the accounts, unless the temporary guardian has actual knowledge of any co-owners or additional authorized signatories. Upon receipt of the response to the subpoena, or upon actual knowledge of the co-owners or additional authorized signatories, the temporary guardian shall send a copy of the order to any person who is a co-owner of or authorized signatory on the deposit account within ten (10) days of receiving the names of the co-owners or signatories. Nothing in this subdivision (a)(6)(C) shall preclude the temporary guardian from making immediate expenditures from the accounts of the adult necessary to provide protective services for the adult in imminent danger, as defined in this part, pending the response by the co-owners or other signatories to the accounts.
(D) If the court finds that the temporary guardian has, without good cause, failed to provide a copy of the order under this subdivision (a)(6) to the co-owner or additional authorized signatory on the deposit account, the court may assess attorneys' fees for the benefit of the co-owner or additional authorized signatory or court costs associated with the failure of the department or the temporary guardian; provided, that the fees and court costs shall not exceed a total of two thousand dollars ($2,000); provided, further, however, that the court may exceed the two thousand dollar ($2,000) limit upon making a specific finding of fact that the failure of the department or an agency to serve the complaint resulted in financial hardship upon the spouse or adult in excess of two thousand dollars ($2,000) and that the interests of justice require that the limit be exceeded in the particular case.
(7) If the department refuses to exercise the powers granted to it by subdivision (a)(1), any private non-profit agency representing disabled adults may proceed under subdivision (1), after giving notice to the department of intent to do so. If an order authorizing the provision of protective services results, the department's responsibilities are the same as they would have been if the department had sought the order. If the court finds that an order authorizing the provision of protected services is not warranted, any agency proceeding under this subdivision (a)(7) will be responsible for the cost of the court-appointed attorney representing the individual for whom protective services were sought as well as court costs.
(b) (1) If the department determines that an adult is in need of protective services and lacks capacity to consent to protective services, then the department may petition the judge or chancellor for a hearing. The complaint must allege specific facts sufficient to show that the adult is in need of protective services and lacks capacity to consent to protective services.
(2) (A) The adult alleged to be in need of protective services and any person to whom the adult is lawfully married, if known and reasonably available, must be served with a copy of the complaint at least ten (10) days prior to the hearing, unless for good cause shown, a shorter time is allowed by the court. The adult and the adult's spouse have a right to be present and represented by counsel at the hearing. Failure to serve a copy of the complaint on a lawful spouse of the adult, if the spouse is not known or is not reasonably available as determined by the court, shall not prevent the provision of protective services to the adult, as ordered by the court.
(B) If the adult alleged to be in need of protective services is indigent or, in the determination of the judge or chancellor, lacks capacity to waive the right to counsel, then the court shall appoint counsel for the adult alleged to be in need of protective services.
(C) If the adult alleged to be in need of protective services is indigent, court costs and the cost of representation of the adult shall be borne by the state; otherwise the costs shall be borne by the adult. The state shall not be liable for the costs of counsel or court costs for the spouse of the adult; provided, however, if the court finds that the department or an agency acting under subdivision (7) has, without good cause, failed to serve a copy of the complaint on the lawful spouse of the adult, the court may assess attorneys fees for the spouse of the adult and court costs to the department or agency acting under subdivision (7) not to exceed a total of two thousand dollars ($2,000); provided, however, that the court may exceed the two thousand dollar ($2,000) limit upon making a specific finding of fact that the failure of the department or an agency to serve the complaint resulted in financial hardship upon the spouse or adult in excess of two thousand dollars ($2,000) and that the interests of justice require that the limit be exceeded in the particular case.
(D) If a court determines that appointment of a guardian ad litem is necessary, and if the adult is indigent, the cost for the guardian ad litem shall be borne by the state; otherwise the costs shall be borne by the adult.
(3) If the judge or chancellor finds that the adult is in need of protective services and lacks capacity to consent to protective services, then the judge or chancellor may enter a decree authorizing the provision of protective services. This decree may include the designation of an individual or organization to be responsible for the personal welfare of the adult and for consenting to protective services in the adult's behalf.
(c) An individual or organization appointed pursuant to subsection (a) or (b) to be responsible for the personal welfare of the adult and for consenting to protective services in the adult's behalf or to serve as temporary guardian shall have only specific authority as the court shall provide in its order. Such authority shall be limited to the authority to consent to specified protective services, including medical care if ordered, and if ordered pursuant to subsection (a), may arrange for, and consent to, appropriate custodial care and gain access to and disburse the adult's resources. If the adult is in need of a person to manage the adult's affairs or to have other responsibilities not addressed in this section, the procedures and requirements for appointment of a conservator pursuant to title 34, chapter 1 or 3, must be followed. Nothing in this section shall be construed as requiring the department to initiate proceedings for the appointment of a conservator or a temporary guardian or to accept such appointment if proceedings are instituted or to initiate proceedings under title 34, chapter 1 or 3.
[Acts 1978, ch. 899, § 1; T.C.A., § 14-2607; Acts 1980, ch. 513, § 7; 1986, ch. 630, §§ 9-14; 1986, ch. 892, § 1; T.C.A., § 14-25-107; 1995, ch. 486, §§ 2-5, 7, 10-13, 15, 19; 1999, ch. 247, § 3; 2000, ch. 947, § 6; 2008, ch. 887, §§ 1-3; 2008, ch. 1005, §§ 2, 3.]