0001| HOUSE BILL 101
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| J. PAUL TAYLOR
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0005|
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0006|
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0007|
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0008| FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO ADULT PROTECTIVE SERVICES; AMENDING SECTIONS OF THE
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0012| NMSA 1978 TO PROVIDE PROTECTION FOR INCAPACITATED ADULTS AND TO
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0013| FACILITATE INVESTIGATION OF ABUSE; PROVIDING EXPANDED IMMUNITY.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 27-7-15 NMSA 1978 (being Laws 1989,
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0017| Chapter 389, Section 2) is amended to read:
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0018| "27-7-15. LEGISLATIVE FINDINGS--PURPOSE.--
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0019| A. The legislature recognizes that many adults in
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0020| the state are unable to manage their own affairs or protect
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0021| themselves from exploitation, abuse or neglect. Often such
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0022| adults cannot find others able or willing to render assistance.
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0023| B. It is the purpose of the Adult Protective
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0024| Services Act to establish a system of protective services
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0025| designed to fill this need and to assure the availability of
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0001| those services to all adults. It is also the purpose of the
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0002| Adult Protective Services Act to authorize only the least
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0003| possible restriction on the exercise of personal and civil
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0004| rights and religious beliefs consistent with the adult's need
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0005| for services and to require that due process be followed in
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0006| imposing those restrictions."
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0007| Section 2. Section 27-7-16 NMSA 1978 (being Laws 1989,
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0008| Chapter 389, Section 3, as amended) is amended to read:
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0009| "27-7-16. DEFINITIONS.--As used in the Adult Protective
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0010| Services Act:
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0011| A. "abuse" means:
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0012| (1) knowingly, intentionally or negligently
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0013| and without justifiable cause inflicting physical pain, injury
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0014| or mental anguish; or
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0015| (2) the intentional deprivation by a caretaker
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0016| or other person of services necessary to maintain the mental
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0017| and physical health of an adult;
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0018| B. "adult" means a person eighteen years of age or
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0019| older;
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0020| C. "appropriate facility" means any facility other
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0021| than a jail or detention facility;
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0022| D. "caretaker" means an individual or institution
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0023| that has assumed the responsibility for the care of an adult;
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0024| E. "conservator" means a person who is appointed by
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0025| a court to manage the [estate of a protected adult] property
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0001| or financial affairs or both of an incapacitated person or a
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0002| minor ward;
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0003| F. "court" means the district court having
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0004| jurisdiction;
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0005| G. "department" means the [human services]
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0006| children, youth and families department;
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0007| H. "emergency" means that an adult is living in
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0008| conditions that present a substantial risk of death or
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0009| immediate and serious physical harm to himself or others;
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0010| I. "exploitation" means an unjust or improper use
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0011| of an adult's [resources] money or property for
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0012| [another's] another person's profit or advantage, pecuniary
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0013| or otherwise;
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0014| J. "guardian" means a person who [is a guardian of
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an incapacitated adult pursuant to a court order] has
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0016| qualified to provide for the care, custody or control of the
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0017| person or a minor or incapacitated person pursuant to
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0018| testamentary or court appointment, but excludes one who is
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0019| merely a guardian ad litem;
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0020| K. "inability to manage his personal care" means
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0021| the inability, as evidenced by recent behavior, to meet one's
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0022| needs for medical care, nutrition, clothing, shelter, hygiene
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0023| or safety so that physical injury, illness or disease has
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0024| occurred or is likely to occur in the near future;
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0025| L. "inability to manage his property or financial
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0001| affairs" means gross mismanagement, waste or dissipation, as
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0002| evidenced by recent behavior, of an adult's income and
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0003| resources which has led or is likely in the near future to lead
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0004| to financial vulnerability, which threatens the adult's ability
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0005| to obtain or pay for his basic requirements for living;
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0006| [K.] M. "incapacitated adult" means any adult
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0007| who demonstrates over time partial or complete functional
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0008| impairment by reason of mental illness, mental deficiency,
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0009| physical illness or disability, chronic use of drugs, chronic
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0010| intoxication or other causes to the extent that he is unable to
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0011| manage his personal [care] affairs or he is unable to
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0012| manage his [personal property and] estate or financial
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0013| affairs, but does not include a person who refuses services
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0014| without other evidence of incapacity;
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0015| [L.] N. "independent living arrangements" means
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0016| a mode of life maintained on a continuing basis outside of a
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0017| hospital, veterans' administration hospital, nursing home or
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0018| other facility licensed by or under the jurisdiction of any
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0019| state agency;
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0020| [M.] O. "interested person" means any adult
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0021| relative, any person who has an interest in the welfare of the
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0022| adult to be protected under the Adult Protective Services Act
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0023| or any official or representative of a protective services
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0024| agency or of any public or nonprofit agency, corporation, board
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0025| or organization eligible for designation as a protective
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0001| services agency;
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0002| [N.] P. "neglect" means failure of the
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0003| caretaker of an adult to provide basic needs such as clothing,
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0004| food, shelter, supervision and care for the physical and mental
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0005| health for that adult or failure by an adult to provide such
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0006| basic needs for himself;
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0007| [O.] Q. "protected adult" means an adult for
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0008| whom a guardian or conservator has been appointed or other
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0009| protective order has been made or an abused, neglected or
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0010| exploited adult who has requested protective services;
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0011| [P.] R. "protective placement" means the
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0012| transfer of an adult from independent living arrangements to a
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0013| hospital, nursing home, domiciliary or residential care
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0014| facility or from one such institution to another;
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0015| [Q.] S. "protective services" means the
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0016| services furnished by the department or a protective services
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0017| agency or its delegate, as described in Section 27-7-21 NMSA
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0018| 1978; and
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0019| [R.] T. "protective services agency" means a
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0020| corporation, board or organization authorized by the department
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0021| pursuant to the Adult Protective Services Act to furnish
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0022| protective services to protected or incapacitated adults or to
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0023| serve as conservators or guardians of protected or
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0024| incapacitated adults upon appointment by a court."
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0025| Section 3. Section 27-7-17 NMSA 1978 (being Laws 1989,
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0001| Chapter 389, Section 4) is amended to read:
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0002| "27-7-17. ADULT PROTECTIVE SERVICES SYSTEM.--
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0003| A. The department shall develop a coordinated
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0004| system of protective services for incapacitated or protected
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0005| adults. In planning this system, the department shall obtain
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0006| the advice of agencies, corporations, boards and associations
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0007| involved in the provision of social, health, legal, nutritional
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0008| and other services to adults, as well as of organizations of
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0009| adults.
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0010| B. Upon establishment of the adult protective
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0011| services system, the department shall be responsible for
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0012| continuing coordination and supervision of the system. In
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0013| carrying out these duties, the department shall:
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0014| (1) adopt rules and regulations necessary to
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0015| implement and operate the system;
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0016| (2) monitor and evaluate the effectiveness of
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0017| the system; and
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0018| (3) use to the extent available grants from
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0019| federal, state and other public and private sources to support
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0020| the system.
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0021| C. The department shall administer a public
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0022| information program regarding the problem, reporting and
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0023| prevention of adult abuse, neglect and exploitation and the
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0024| availability of treatment and protective services for those
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0025| adults."
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0001| Section 4. Section 27-7-18 NMSA 1978 (being Laws 1989,
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0002| Chapter 389, Section 5) is amended to read:
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0003| "27-7-18. ADULT PROTECTIVE SERVICES ADVISORY BOARD
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0004| CREATED.--The "adult protective services advisory board" is
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0005| created, consisting of nine members appointed by the secretary
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0006| of [human services] the department. At least four members
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0007| shall be involved in the direct provision of adult protective
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0008| services. The advisory board shall provide continuing advice
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0009| to the department concerning the protective services system."
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0010| Section 5. Section 27-7-19 NMSA 1978 (being Laws 1989,
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0011| Chapter 389, Section 6) is amended to read:
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0012| "27-7-19. DEPARTMENT--INVESTIGATIONS--ORDERS--SERVICES
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0013| AND CONTRACTS.--
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0014| A. The department shall investigate all reports of
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0015| suspected abuse, neglect or exploitation of adults. Upon
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0016| receipt of a report, the department shall determine whether the
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0017| adult is abused, neglected or exploited and in need of
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0018| protective services and what services are needed, unless the
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0019| department determines that the adult is knowingly and
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0020| voluntarily refusing services or that the report is frivolous
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0021| or is patently without a factual basis. In determining the
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0022| need for protective services, the department shall visit the
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0023| person and [consult with] gather information from others
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0024| having knowledge of the facts of the particular case. After
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0025| making the determination, the department or the protective
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0001| services agency shall make a written report of its findings
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0002| and recommendations and take whatever action is necessary.
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0003| B. The department may petition the court for a
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0004| protective order or an order for appointment of a guardian or
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0005| conservator.
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0006| C. The department may provide direct protective
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0007| services and may contract with any protective services agency
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0008| for the provision of protective services. To the extent
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0009| appropriate and available, the department shall utilize
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0010| existing resources and services of public and nonprofit private
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0011| agencies in providing protective services.
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0012| D. Except when prohibited by law, the department
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0013| shall have immediate access to and may reproduce any record,
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0014| including medical, personal, psychological and financial
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0015| records, of the patient, resident or client of any private or
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0016| public facility or agency which the department determines is
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0017| necessary to pursue any investigation mandated by this section
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0018| or by Sections 30-47-1 through 30-47-10 NMSA 1978.
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0019| If the patient, resident or client:
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0020| (1) has the ability to consent, access may
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0021| only be obtained by the written consent of the patient,
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0022| resident or client;
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0023| (2) is unable to consent in writing, oral
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0024| consent may be given in the presence of a third party as
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0025| witness;
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0001| (3) is under a New Mexico guardianship or
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0002| conservatorship that provides the guardian or conservator with
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0003| the authority to approve review of the records, the department
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0004| shall obtain the permission of the guardian or conservator for
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0005| review of the record, unless any of the following applies:
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0006| (a) the existence of the guardianship or
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0007| conservatorship is unknown to the department or facility; or
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0008| (b) the guardian or conservator cannot be
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0009| reached within five working days; and
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0010| (4) is unable to express written or oral consent
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0011| and there is no guardian or conservator or the guardian or
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0012| conservator refuses to give consent or notification of the
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0013| guardian or conservator is not applicable for reasons set forth
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0014| in Paragraph (3) of this subsection or the patient, resident or
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0015| client is deceased, inspection of records may be made by
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0016| employees of the department upon petition to the district court
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0017| for an order requiring appropriate access if the department can
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0018| demonstrate that access is denied because of the incapacity,
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0019| coercion, extortion or justifiable fear of future abuse,
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0020| neglect, exploitation or abandonment of the adult client.
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0021| E. Upon request by the department, a long-term care
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0022| facility shall provide to the department the name, address and
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0023| telephone number of the guardian, conservator, attorney-in-
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0024| fact, legal representative or next of kin of any patient,
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0025| resident or client.
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0001| F. The department shall have immediate access to
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0002| the person who is alleged to be abused, neglected or exploited
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0003| to determine the accuracy of the report and the necessity of
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0004| protective services and placement, to evaluate the client's
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0005| needs and develop a service plan to meet those needs and to
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0006| provide for the delivery of services by the department or by
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0007| other service providers that the department deems to be
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0008| appropriate. If the department is denied access to the person
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0009| alleged to be abused, neglected or exploited, the department's
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0010| investigator may gain access upon petition to the district
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0011| court for an order requiring appropriate access if the
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0012| department can demonstrate that a care provider or third party
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0013| has interfered with the department's attempts to access the
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0014| adult client under investigation.
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0015| G. Anyone interfering with an investigation of
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0016| adult abuse, neglect or exploitation, pursuant to this section,
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0017| is guilty of a misdemeanor. Interference under this section
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0018| shall include investigations by facilities or individuals of
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0019| their own alleged abuse, neglect or exploitation without first
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0020| reporting that alleged abuse, neglect or exploitation to the
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0021| department."
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0022| Section 6. Section 27-7-20 NMSA 1978 (being Laws 1989,
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0023| Chapter 389, Section 7, as amended) is amended to read:
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0024| "27-7-20. PROTECTIVE SERVICES AGENCIES DESIGNATION--
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0025| POWERS.--
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0001| A. The department may designate any corporation,
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0002| board or organization as a protective services agency. The
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0003| department shall adopt and promulgate regulations establishing
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0004| criteria and procedures for the designation of protective
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0005| services agencies.
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0006| B. A protective services agency is authorized to:
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0007| (1) furnish protective services to an adult
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0008| with his consent;
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0009| (2) petition the court for an appointment of a
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0010| conservator or guardian, issuance of an emergency order for
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0011| protective services or an order for protective placement;
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0012| (3) furnish protective services to an adult
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0013| without his consent in an emergency pursuant to Section 27-7-25
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0014| NMSA 1978;
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0015| (4) furnish protective services to an
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0016| incapacitated or protected adult with the consent of the person
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0017| or his guardian;
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0018| (5) serve as conservator, guardian or
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0019| temporary guardian of a protected or incapacitated adult; and
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0020| (6) make such reports as the department or a
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0021| court may require.
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0022| [C. No corporation, board or organization, other
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than one designated by the department as a protective services
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agency, shall furnish protective services to an adult.
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D.] C. The department shall designate for each
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0001| county the department itself or at least one protective
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0002| services agency that shall be responsible for rendering
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0003| protective services in an emergency."
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0004| Section 7. Section 27-7-21 NMSA 1978 (being Laws 1989,
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0005| Chapter 389, Section 8, as amended) is amended to read:
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0006| "27-7-21. NATURE OF PROTECTIVE SERVICES--COSTS.--
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0007| A. Protective services are services furnished by
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0008| the department or a protective services agency or its delegate
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0009| to an incapacitated or protected person with the person's
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0010| consent or appropriate legal authority.
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0011| B. The services furnished in a protective services
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0012| system may include [but are not limited to] social case work,
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0013| psychiatric and health evaluation, home care, day care, legal
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0014| assistance, social services, health care, case management,
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0015| guardianship, conservatorship and other services consistent
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0016| with the Adult Protective Services Act.
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0017| C. In order to provide the services listed in
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0018| Subsection B of this section, the adult protective services
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0019| system established by the department may include [but is not
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limited to,] outreach, identifying persons in need of
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0021| services, counseling, referring persons for services,
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0022| evaluating individuals, arranging for services, tracking and
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0023| following up cases, petitioning the courts for the appointment
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0024| of a conservator or guardian of the person and other activities
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0025| consistent with the Adult Protective Services Act.
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0001| D. The costs of providing protective services shall
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0002| be borne by the provider of those services or the department or
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0003| other appropriate agency, subject to available appropriations
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0004| and resources, unless the adult agrees to pay for them or a
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0005| court authorizes the provider or the department or other
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0006| agency to receive reasonable reimbursement from the adult's
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0007| assets after a finding that the person is financially able to
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0008| make payment."
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0009| Section 8. Section 27-7-23 NMSA 1978 (being Laws 1989,
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0010| Chapter 389, Section 10) is amended to read:
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0011| "27-7-23. VOLUNTARY PROTECTIVE SERVICES--PROTECTIVE
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0012| PLACEMENT.--
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0013| A. Any adult who has been abused, neglected or
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0014| exploited and is in need of protective services or protective
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0015| placement as determined by the department and who requests
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0016| those services shall receive them, subject to available
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0017| appropriations and resources. If the person withdraws or
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0018| refuses consent, voluntary protective services or protective
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0019| placement shall not be provided. No legal rights are
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0020| relinquished as a result of acceptance of voluntary protective
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0021| services or protective placement.
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0022| B. No person shall interfere with the provision of
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0023| protective services or protective placement to an adult who
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0024| requests and consents to receive those services or placement.
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0025| In the event that interference occurs on a continuing basis,
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0001| the department or a protective services agency may petition the
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0002| court to enjoin that interference or, at the department's
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0003| discretion, may request criminal prosecution."
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0004| Section 9. Section 27-7-24 NMSA 1978 (being Laws 1989,
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0005| Chapter 389, Section 11) is amended to read:
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0006| "27-7-24. INVOLUNTARY PROTECTIVE SERVICES.--
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0007| A. If an adult is unable to consent to receive
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0008| protective services, those services may be ordered by a court
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0009| on an involuntary basis through an emergency order pursuant to
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0010| the Adult Protective Services Act or through appointment of a
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0011| guardian or conservator.
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0012| B. In ordering involuntary protective services, the
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0013| court shall authorize only that intervention which it finds to
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0014| be least restrictive of the adult's liberty and rights
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0015| consistent with the adult's welfare and safety. The basis for
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0016| such a finding shall be stated in the record by the court.
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0017| C. The incapacitated or protected adult shall not
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0018| be required to pay for involuntary protective services unless
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0019| that payment is authorized by the court upon a showing that the
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0020| adult is financially able to pay. In this event, the court
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0021| shall provide for reimbursement of the reasonable costs of the
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0022| services. The costs of involuntary protective services shall
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0023| be borne by the provider of those services or the department or
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0024| other appropriate agency, subject to available appropriations
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0025| and resources, if the adult is not financially able to cover
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0001| those costs.
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0002| D. No person shall interfere with the provision of
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0003| involuntary protective services to an adult. In the event that
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0004| interference occurs on a continuing basis, the department or
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0005| protective services agency may petition the court to enjoin
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0006| interference."
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0007| Section 10. Section 27-7-25 NMSA 1978 (being Laws 1990,
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0008| Chapter 79, Section 6) is amended to read:
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0009| "27-7-25. EX-PARTE ORDERS FOR EMERGENCY PROTECTIVE
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0010| SERVICES OR EMERGENCY PROTECTIVE PLACEMENT--NOTICE--PETITION.--
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0011| A. Upon petition by the department, the court may
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0012| issue an order authorizing the provision of involuntary
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0013| protective services or protective placement on an emergency
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0014| basis to an adult under the criteria set forth in Subsection B
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0015| of this section.
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0016| B. At the time a petition is filed or any time
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0017| thereafter, the court may issue an ex-parte order authorizing
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0018| the provision of involuntary protective services or involuntary
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0019| protective placement upon a sworn written statement of facts
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0020| showing probable cause exists to believe that:
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0021| (1) the adult is incapacitated;
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0022| (2) an emergency exists;
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0023| (3) the adult lacks the capacity to consent to
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0024| receive protective services; and
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0025| (4) no person authorized by law or court order
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0001| to give consent for the adult is available or willing to
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0002| consent to the provision of protective services or protective
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0003| placement on an emergency basis.
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0004| C. An affidavit for an ex-parte order for emergency
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0005| protective services or emergency protective placement may be
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0006| signed by any person who has knowledge of the facts alleged or
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0007| is informed of them and believes that they are true.
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0008| D. The Rules of Evidence do not apply to the
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0009| issuance of an emergency ex-parte protective services or
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0010| protective placement order or to hearings held on an
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0011| application for renewal of the original emergency order.
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0012| E. In issuing an emergency ex-parte order, the
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0013| court shall adhere to the following limitations:
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0014| (1) only the protective services or protective
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0015| placement necessary to remove the conditions creating the
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0016| emergency shall be ordered, and the order shall specifically
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0017| designate the proposed protective services or protective
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0018| placement;
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0019| (2) protective services or protective
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0020| placement authorized by an emergency ex-parte order shall not
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0021| include hospitalization or a change of residence, unless the
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0022| order gives specific approval for the action;
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0023| (3) protective services or protective
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0024| placement may be provided by emergency ex-parte order only for
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0025| ten days; provided that the original order may be renewed once
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0001| for a period of twenty additional days upon application to the
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0002| court showing that continuation of the original order is
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0003| necessary to remove the conditions creating the emergency. An
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0004| application for renewal of the original order shall be sup-
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0005|
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0006| ported by a written report of the results of the evaluation
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0007| required by Section 27-7-22 NMSA 1978 and copies of the actual
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0008| evaluations;
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0009| (4) the issuance of an emergency ex-parte
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0010| order shall not deprive the adult of any rights except those
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0011| provided for in the order;
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0012| (5) the department and its employees are
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0013| prohibited from:
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0014| (a) taking custody;
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0015| (b) acting as guardians or
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0016| conservators for any adult in need of protective services,
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0017| except that an employee may serve in that capacity when related
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0018| by affinity or consanguinity to an adult;
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0019| (c) acting as treatment guardians under
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0020| the Mental Health and Developmental Disabilities Code except
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0021| that an employee may serve in that capacity when related by
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0022| affinity or consanguinity to an adult;
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0023| (d) acting as qualified health care
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0024| professionals; and
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0025| (e) acting as visitors under the Probate
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0001| Code for any adult in need of protective services;
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0002| (6) to implement an emergency ex-parte order,
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0003| the court may authorize forcible entry of premises for the
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0004| purposes of rendering protective services or transporting the
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0005| adult to another location for the provision of services only if
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0006| facts contained in the affidavit supporting the petition for
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0007| ex-parte order show that attempts to gain voluntary access to
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0008| the premises have failed and forcible entry is necessary.
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0009| Persons making an authorized forcible entry shall be
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0010| accompanied by a law enforcement officer; and
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0011| (7) service of an ex-parte order authorizing
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0012| forcible entry shall be according to the following procedure.
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0013| The order shall be served on the alleged incapacitated adult by
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0014| a person authorized to serve arrest warrants and shall direct
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0015| the officer to advise the adult of the nature of the protective
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0016| services that have been ordered by the court. If the order
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0017| authorizes emergency protective placement, the order shall
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0018| direct the officer to assist in transfer of the adult to a
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0019| place designated by the court.
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0020| F. The petition for an emergency ex-parte order
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0021| shall set forth:
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0022| (1) the name, address and interest of the
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0023| petitioner;
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0024| (2) the name, age and address of the adult in
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0025| need of protective services;
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0001| (3) facts describing the nature of the
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0002| emergency;
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0003| (4) facts describing the nature of the adult's
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0004| incapacity;
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0005| (5) the proposed protective services;
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0006| (6) the petitioner's reasonable belief,
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0007| together with supporting facts, about the need for emergency
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0008| intervention; and
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0009| (7) facts showing the petitioner's attempts to
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0010| obtain the adult's consent to the proposed services and the
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0011| outcome of those attempts.
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0012| G. Notice of the filing of the petition and the
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0013| issuance of the emergency ex-parte order, including a copy of
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0014| the petition and the affidavit for ex-parte order, shall be
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0015| given to the adult and the adult's spouse or, if none, his
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0016| adult children or next of kin, or guardian, if any. The notice
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0017| shall be given in language reasonably understandable by its
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0018| intended recipients within twenty-four hours, excluding
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0019| Saturdays, Sundays and legal holidays, from the time that the
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0020| ex-parte order authorizing protective services is served upon
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0021| the incapacitated adult. The notice shall inform the
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0022| recipients that a hearing will be held no later than ten days
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0023| after the date the petition is filed to determine whether the
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0024| conditions creating the emergency have been removed and whether
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0025| the adult should be released from the court's order for protec-
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0001|
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0002| tive services.
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0003| H. Within ten days from the filing of a petition
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0004| for an emergency order for protective services or protective
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0005| placement, the court shall hold a hearing upon any application
|
0006| for renewal of the emergency order. The hearing upon an
|
0007| application for renewal shall be held pursuant to the
|
0008| provisions of Section 27-7-27 NMSA 1978.
|
0009| I. The protected adult or any interested person may
|
0010| petition the court to have the emergency order set aside or
|
0011| modified at any time, notwithstanding any prior findings by the
|
0012| court that the adult is incapacitated.
|
0013| J. If the adult continues to need protective
|
0014| services or protective placement after the renewal order
|
0015| provided in Paragraph (3) of Subsection E of this section has
|
0016| expired, the department or original petitioner shall
|
0017| immediately petition the court to appoint a conservator or
|
0018| guardian or to order non-emergency protective placement
|
0019| pursuant to Section 27-7-26 NMSA 1978.
|
0020| K. The petitioner shall not be liable for filing
|
0021| the petition if he acted in good faith."
|
0022| Section 11. Section 27-7-25.1 NMSA 1978 (being Laws 1990,
|
0023| Chapter 79, Section 7) is amended to read:
|
0024| "27-7-25.1. EMERGENCY PLACEMENT BY A LAW ENFORCEMENT
|
0025| OFFICER WITHOUT A COURT ORDER.--
|
0001| A. When, from personal observation of a law
|
0002| enforcement officer, it appears probable that an incapacitated
|
0003| adult will suffer immediate and irreparable physical injury or
|
0004| death if not immediately placed in an appropriate facility,
|
0005| that the adult is unable to give consent and that it is not
|
0006| possible to follow the procedures of Section 27-7-25 NMSA 1978,
|
0007| the law enforcement officer making that observation may trans-
|
0008|
|
0009| port the adult to an appropriate facility. No court order is
|
0010| required to authorize the law enforcement officer to act upon
|
0011| his observation pursuant to this section.
|
0012| B. A law enforcement officer who transports an
|
0013| incapacitated adult to an appropriate facility pursuant to the
|
0014| provisions of this section shall immediately notify the
|
0015| department of the placement.
|
0016| C. The department shall file a petition pursuant to
|
0017| Subsection A of Section 27-7-25 NMSA 1978 within two working
|
0018| days after the placement of the adult by the law enforcement
|
0019| officer has occurred unless the department determines that the
|
0020| criteria for emergency removal and placement have not been met
|
0021| or that there is no further need for involuntary protective
|
0022| services or placement.
|
0023| D. Upon receipt of notice from a law enforcement
|
0024| officer that an adult has been placed in a facility pursuant to
|
0025| the authority of this section, the department shall give notice
|
0001| pursuant to Subsection G of Section 27-7-25 NMSA 1978 within
|
0002| two working days after the transfer of the adult has taken
|
0003| place.
|
0004| E. The court shall hold a hearing on the petition
|
0005| filed by the department as a result of the law enforcement
|
0006| officer's emergency placement within ten days of the filing of
|
0007| the petition, pursuant to the provisions of Section 27-7-27
|
0008| NMSA 1978, to determine whether the conditions creating the
|
0009| need for the emergency placement have been removed and whether
|
0010| the adult should be released from the protective placement."
|
0011| Section 12. Section 27-7-26 NMSA 1978 (being Laws 1989,
|
0012| Chapter 389, Section 13, as amended) is amended to read:
|
0013| "27-7-26. NON-EMERGENCY PROTECTIVE PLACEMENT--FINDINGS--
|
0014| PETITION--ORDER.--
|
0015| A. If the adult refuses to consent, non-emergency
|
0016| protective placement shall not take place unless ordered by a
|
0017| court after a finding on the record based on clear and
|
0018| convincing evidence that:
|
0019| (1) the adult is incapacitated;
|
0020| (2) the adult is incapable of providing for
|
0021| his own care or custody and his condition creates a substantial
|
0022| risk of serious physical harm to himself or others;
|
0023| (3) the adult needs care or treatment;
|
0024| (4) the proposed order is substantially
|
0025| supported by the evaluation provided for in Subsection [F]
|
0001| E of this section or, if not so supported, there are
|
0002| compelling reasons for ordering that placement; and
|
0003| (5) no less restrictive alternative course of
|
0004| care or treatment is available that is consistent with the
|
0005| incapacitated person's welfare and safety.
|
0006| [B. The department, a protective services agency,
|
a conservator, a guardian or any interested person may petition
|
the court for non-emergency protective placement.
|
C.] B. The petition for non-emergency protective
|
0010| placement or protective services shall state with
|
0011| particularity the factual basis for the allegations specified
|
0012| in Subsection A of this section and shall be based on the most
|
0013| reliable
|
0014| information available to the petitioner.
|
0015| [D.] C. Written notice of a petition for non-
|
0016| emergency protective placement shall be served upon the adult
|
0017| by personal service at least [ten] fourteen days prior to
|
0018| the time set for a hearing. Notice shall also be given to the
|
0019| adult's legal counsel, care providers, guardian, spouse and
|
0020| adult children or next of kin, [and persons having physical
|
custody of the adult] whose names and addresses are known to
|
0022| the petitioner or can with reasonable diligence be ascertained.
|
0023| The person serving the notice shall certify to the court that
|
0024| the petition has been delivered and how the required notice was
|
0025| given. The notice shall be in language reasonably
|
0001| understandable by the adult who is the subject of the petition
|
0002| and also shall be given orally if necessary. The notice shall
|
0003| include:
|
0004| (1) the names of all petitioners;
|
0005| (2) the factual basis of the belief that
|
0006| protective placement is needed;
|
0007| (3) the rights of the adult in the court
|
0008| proceedings; and
|
0009| (4) the name and address of the proposed
|
0010| placement or services.
|
0011| [E.] D. Upon the filing of a petition for non-
|
0012| emergency protective placement, the court shall hold a hearing
|
0013| pursuant to the provisions of Section 27-7-27 NMSA 1978.
|
0014| [F.] E. In order to make the findings required
|
0015| in Paragraphs (2) through (5) of Subsection A of this section,
|
0016| the court shall direct that a comprehensive evaluation of the
|
0017| adult alleged to be in need of placement be conducted as
|
0018| provided in Section 27-7-22 NMSA 1978.
|
0019| [G.] F. In ordering non-emergency protective
|
0020| placement, the court shall give consideration to the choice of
|
0021| residence of the adult. The court may order placement in
|
0022| facilities such as hospitals, nursing homes, domiciliary or
|
0023| personal care facilities, sheltered care residences or other
|
0024| appropriate facilities licensed by the state.
|
0025| [H.] G. The court may authorize non-emergency
|
0001| protective placement of or protective services for an adult
|
0002| for a period not to exceed six months.
|
0003| [I.] H. At the time of expiration of an order
|
0004| for non-emergency protective placement or protective
|
0005| services, [the guardian] the original petitioner [or any
|
interested person] may petition the court to extend its
|
0007| order for protective
|
0008| placement or protective services for an additional period not
|
0009| to exceed six months. The contents of the petition shall
|
0010| conform to the provisions of Subsections A and [C] B of
|
0011| this section. Notice of the petition for the extension of
|
0012| placement or services shall be made in conformity with
|
0013| Subsection [D] C of this section. The court shall hold a
|
0014| hearing to determine whether to renew the order. Any person
|
0015| entitled to a notice under Subsection [D] C of this section
|
0016| may appear at the hearing and challenge the petition. In this
|
0017| event, the court shall conduct the hearing pursuant to the
|
0018| provisions in Section 27-7-27 NMSA 1978.
|
0019| [J.] I. The residence of or services provided
|
0020| to an adult that had been established pursuant to an order for
|
0021| non-emergency protective placement or protective services
|
0022| shall not be changed unless the court authorizes the transfer
|
0023| of residence [after finding compelling reasons to justify the
|
transfer] or change of services.
|
0025| [K.] J. Prior to the expiration of the non-
|
0001| emergency protective placement or protective services, the
|
0002| department shall review the need for continued protective ser-
|
0003|
|
0004| vices, including the necessity for appointment of a conservator
|
0005| or guardian, [That recommendation and report shall be made to
|
the department, the protective services agency, the adult's
|
conservator or guardian and all persons notified of the
|
original petition for protective placement and the court, where
|
appropriate.
|
L. Any adult may request non-emergency protective
|
placement under the Adult Protective Services Act. No legal
|
rights are relinquished or modified as a result of that
|
placement] and shall make such recommendation to the court."
|
0014| Section 13. Section 27-7-29 NMSA 1978 (being Laws 1989,
|
0015| Chapter 389, Section 16) is amended to read:
|
0016| "27-7-29. CONFIDENTIALITY OF RECORDS--PENALTY.--
|
0017| A. All records of the department, the court, state
|
0018| and local agencies and protective services agencies that are
|
0019| [protected] created or maintained pursuant to
|
0020| investigations under the Adult Protective Services Act or for
|
0021| whom application has ever been made for protection shall be
|
0022| confidential and shall not be disclosed directly or indirectly
|
0023| to the public.
|
0024| B. The records described in Subsection A of this
|
0025| section shall be open to inspection only by [court personnel,
|
department personnel, personnel of any state agency with a
|
legitimate interest in the records and any other person or
|
entity, by order of the court, having a legitimate interest in
|
the case or the work of the court] the following:
|
0005| (1) the alleged abused, neglected or
|
0006| exploited person, except as to the identity of the referral
|
0007| source and second source information such as medical
|
0008| psychological evaluations;
|
0009| (2) court personnel;
|
0010| (3) personnel of any state agency with a
|
0011| legitimate interest in the records;
|
0012| (4) law enforcement officials;
|
0013| (5) department personnel;
|
0014| (6) any state government social services
|
0015| agency in any other state;
|
0016| (7) health care or mental health
|
0017| professionals involved in the evaluation, treatment,
|
0018| residential care or protection of the adult;
|
0019| (8) parties and their counsel in all
|
0020| legal proceedings pursuant to the Adult Protective Services Act
|
0021| or legal actions pursuant to the Probate Code;
|
0022| (9) persons who have been, or will be
|
0023| in the immediate future, providing care or services to the
|
0024| adult except the alleged abuser;
|
0025| (10) persons appointed by the court
|
0001| pursuant to the Probate Code to be the adult's guardian ad
|
0002| litem, guardian, conservator, visitor or qualified health care
|
0003| professional;
|
0004| (11) any of the persons who the
|
0005| department intends to nominate or recommend to the court to be
|
0006| appointed pursuant to the Probate Code;
|
0007| (12) any other person or entity, by
|
0008| order of the court, having a legitimate interest in the case or
|
0009| the work of the court; and
|
0010| (13) protection and advocacy
|
0011| representatives pursuant to the federal Developmental
|
0012| Disabilities Assistance and Bill of Rights Act and Protection
|
0013| and Advocacy for Mentally Ill Individuals Act.
|
0014| C. Records of cases involving substantiated abuse,
|
0015| neglect or exploitation shall be provided as appropriate to the
|
0016| department of health [and environment department], the
|
0017| district attorney's office, the medicaid fraud control unit in
|
0018| New Mexico and the office of the long-term care ombudsman for
|
0019| appropriate additional action.
|
0020| D. Whoever intentionally and unlawfully releases
|
0021| any information or records closed to the public pursuant to
|
0022| this section or releases or makes other unlawful use of records
|
0023| in violation of this section is guilty of a petty misdemeanor."
|
0024| Section 14. Section 27-7-30 NMSA 1978 (being Laws 1989,
|
0025| Chapter 389, Section 17, as amended) is amended to read:
|
0001| "27-7-30. DUTY TO REPORT.--
|
0002| A. Any person having reasonable cause to believe
|
0003| that an incapacitated adult is being abused, neglected or
|
0004| exploited shall immediately report that information to the
|
0005| department [or other appropriate agency].
|
0006| B. The report required in Subsection A of this
|
0007| section may be made orally or in writing. The report shall
|
0008| include the name, age and address of the adult, the name and
|
0009| address of any other person responsible for the adult's care,
|
0010| the nature and extent of the adult's condition, the basis of
|
0011| the reporter's knowledge and other relevant information.
|
0012| C. Any person failing or refusing to report, or
|
0013| obstructing or impeding any investigation, as required by
|
0014| Subsection A of this section is guilty of a misdemeanor."
|
0015| Section 15. Section 27-7-31 NMSA 1978 (being Laws 1989,
|
0016| Chapter 389, Section 18) is amended to read:
|
0017| "27-7-31. IMMUNITY.--Any person making a report pursuant
|
0018| to Section [17 of the Adult Protective Services Act] 27-7-30
|
0019| NMSA 1978, testifying in any judicial proceeding arising from
|
0020| the report or participating in a required evaluation pursuant
|
0021| to [that] the Adult Protective Services Act or any law
|
0022| enforcement officer carrying out his responsibilities under
|
0023| that act or any person providing records or information as
|
0024| required under that act shall be immune from civil or criminal
|
0025| liability on account of that report, testimony or participa-
|
0001|
|
0002| tion, unless the person acted in bad faith or with a malicious
|
0003| purpose."
|
0004| - 29 - State of New Mexico
|
0005| House of Representatives
|
0006|
|
0007| FORTY-THIRD LEGISLATURE
|
0008| FIRST SESSION, 1997
|
0009|
|
0010|
|
0011| February 6, 1997
|
0012|
|
0013|
|
0014| Mr. Speaker:
|
0015|
|
0016| Your CONSUMER AND PUBLIC AFFAIRS COMMITTEE, to
|
0017| whom has been referred
|
0018|
|
0019| HOUSE BILL 101
|
0020|
|
0021| has had it under consideration and reports same with
|
0022| recommendation that it DO PASS, amended as follows:
|
0023|
|
0024| 1. On page 8, line 14, strike the period and insert in lieu
|
0025| thereof a colon, and on line 15, strike "If" and insert "if".
|
0001|
|
0002|
|
0003| 2. On page 10, line 16, following the period insert
|
0004| "Interference under this section shall not include efforts by
|
0005| facilities or individuals to establish whether there is
|
0006| reasonable cause to believe that there is adult abuse, neglect or
|
0007| exploitation.".
|
0008|
|
0009| 3. On page 17, line 17, between "professionals" and the
|
0010| semicolon insert "pursuant to the Probate Code".
|
0011|
|
0012| 4. On page 22, line 5, strike "refuses" and insert in lieu
|
0013| thereof "is unable".
|
0014|
|
0015| 5. On page 22, line 6, after "placement" insert "or
|
0016| services".
|
0017|
|
0018| 6. On page 25, between lines 24 and 25, insert the
|
0019| following new section:
|
0020|
|
0021| "Section 13. Section 27-7-27 NMSA 1978 (being Laws 1989,
|
0022| Chapter 389, Section 14, as amended) is amended to read:
|
0023|
|
0024| "27-7-27. HEARING ON PETITION.--
|
0025|
|
0001| A. The hearing on a petition for renewal of an
|
0002| emergency ex-parte order for protective services or for an order
|
0003| for non-emergency protective placement or services shall be
|
0004| held under the following conditions:
|
0005|
|
0006| (1) the adult shall be present unless the court
|
0007| determines it is impossible for the adult to be present or it is
|
0008| not in the adult's best interest because of a threat to that
|
0009| adult's health and safety;
|
0010|
|
0011| (2) the adult has the right to counsel whether
|
0012| or not the adult is present at the hearing. If the person is
|
0013| indigent, the court shall appoint counsel no later than the time
|
0014| of the filing of the petition;
|
0015|
|
0016| (3) counsel appointed by the court pursuant to
|
0017| Paragraph (2) of this subsection shall interview the allegedly
|
0018| incapacitated adult prior to any hearing on the petition or any
|
0019| application for renewal of the original emergency order;
|
0020|
|
0021| (4) the adult shall have the right to trial by
|
0022| jury upon request by the adult or his counsel only in hearings
|
0023| held on petitions for non-emergency protective placement or
|
0024| services; and
|
0025|
|
0001| (5) the adult has the right at his own expense
|
0002| or, if indigent, at the expense of the state to secure an
|
0003| independent medical, psychological or psychiatric examination
|
0004| relevant to the issue involved in any hearing under this section
|
0005| and to present a report of this independent evaluation or the
|
0006| evaluator's personal testimony as evidence at the hearing.
|
0007|
|
0008| B. The duty of counsel representing an adult for whom
|
0009| a petition for an order for emergency protective services or for
|
0010| non-emergency protective placement or services has been filed
|
0011| shall be to represent the adult by presenting his declared
|
0012| position to the court.
|
0013|
|
0014| C. The court shall issue for the record a statement
|
0015| of its findings in support of any order for renewal of emergency
|
0016| protective services or for non-emergency protective placement or
|
0017| services."".
|
0018|
|
0019| 7. Renumber succeeding sections accordingly.
|
0020|
|
0021| 8. On page 27, strike lines 15 and 16, and insert in lieu
|
0022| thereof "department petitions the court appoint pursuant to the
|
0023| Probate Code;".
|
0024|
|
0025| Respectfully submitted,
|
0001|
|
0002|
|
0003|
|
0004|
|
0005|
|
0006| Gary King, Chairman
|
0007|
|
0008|
|
0009| Adopted Not Adopted
|
0010|
|
0011| (Chief Clerk) (Chief Clerk)
|
0012|
|
0013| Date
|
0014|
|
0015| The roll call vote was 9 For 0 Against
|
0016| Yes: 9
|
0017| Excused: Sandel
|
0018| Absent: None
|
0019|
|
0020|
|
0021| 114896.2
|
0022| 116063.1
|
0023| G:\BILLTEXT\BILLW_97\H0101 State of New Mexico
|
0024| House of Representatives
|
0025|
|
0001| FORTY-THIRD LEGISLATURE
|
0002| FIRST SESSION, 1997
|
0003|
|
0004|
|
0005| February 22, 1997
|
0006|
|
0007|
|
0008| Mr. Speaker:
|
0009|
|
0010| Your JUDICIARY COMMITTEE, to whom has been referred
|
0011|
|
0012| HOUSE BILL 101, as amended
|
0013|
|
0014| has had it under consideration and reports same with
|
0015| recommendation that it DO PASS, amended as follows:
|
0016|
|
0017| 1. On page 2, line 6, delete the closing quotation mark,
|
0018| and between lines 6 and 7, insert the following new subsection:
|
0019|
|
0020| "C. Nothing in this act shall be construed to mean an
|
0021| adult, including an incapacitated adult or a protected adult, is
|
0022| abused, neglected, being denied essential services or in need of
|
0023| protective services for the sole reason he relies upon or is
|
0024| being furnished with spiritual treatment through prayer alone in
|
0025| accordance with the express or implied intent of the adult; nor
|
0001| shall anything in this act be construed to authorize or require
|
0002| any medical care or treatment in contravention of the express or
|
0003| implied wish of that adult."".
|
0004|
|
0005| 2. On page 10, line 14, strike "their own".
|
0006|
|
0007| 3. On page 10, line 15, after the word "exploitation"
|
0008| insert "within their facilities, operation and control".
|
0009|
|
0010| 4. On page 28, line 8, strike the word "petty".
|
0011|
|
0012| Respectfully submitted,
|
0013|
|
0014|
|
0015|
|
0016|
|
0017|
|
0018| Thomas P. Foy, Chairman
|
0019|
|
0020|
|
0021| Adopted Not Adopted
|
0022|
|
0023| (Chief Clerk) (Chief Clerk)
|
0024|
|
0025| Date
|
0001|
|
0002| The roll call vote was 9 For 0 Against
|
0003| Yes: 9
|
0004| Excused: M.P. Garcia, Mallory, Rios, Sanchez
|
0005| Absent: None
|
0006|
|
0007|
|
0008| .116615.1
|
0009| .117500.1
|
0010| G:\BILLTEXT\BILLW_97\H0101
|
0011|
|
0012| FORTY-THIRD LEGISLATURE
|
0013| FIRST SESSION, 1997
|
0014|
|
0015|
|
0016| March 14, 1997
|
0017|
|
0018| Mr. President:
|
0019|
|
0020| Your PUBLIC AFFAIRS COMMITTEE, to whom has been
|
0021| referred
|
0022|
|
0023| HOUSE BILL 101, as amended
|
0024|
|
0025| has had it under consideration and reports same with
|
0001| recommendation that it DO PASS, and thence referred to the
|
0002| JUDICIARY COMMITTEE.
|
0003|
|
0004| Respectfully submitted,
|
0005|
|
0006|
|
0007|
|
0008|
|
0009| __________________________________
|
0010| Shannon Robinson, Chairman
|
0011|
|
0012|
|
0013|
|
0014| Adopted_______________________ Not
|
0015| Adopted_______________________
|
0016| (Chief Clerk) (Chief Clerk)
|
0017|
|
0018|
|
0019| Date ________________________
|
0020|
|
0021|
|
0022| The roll call vote was 7 For 0 Against
|
0023| Yes: 7
|
0024| No: 0
|
0025| Excused: Garcia, Smith
|
0001| Absent: None
|
0002|
|
0003|
|
0004|
|
0005|
|
0006| H0101PA1
|
0007|
|
0008| FORTY-THIRD LEGISLATURE
|
0009| FIRST SESSION, 1997
|
0010|
|
0011|
|
0012| March 19, 1997
|
0013|
|
0014| Mr. President:
|
0015|
|
0016| Your JUDICIARY COMMITTEE, to whom has been referred
|
0017|
|
0018| HOUSE BILL 101, as amended
|
0019|
|
0020| has had it under consideration and reports same with
|
0021| recommendation that it DO PASS.
|
0022|
|
0023| Respectfully submitted,
|
0024|
|
0025|
|
0001|
|
0002|
|
0003| __________________________________
|
0004| Fernando R. Macias, Chairman
|
0005|
|
0006|
|
0007|
|
0008| Adopted_______________________ Not
|
0009| Adopted_______________________
|
0010| (Chief Clerk) (Chief Clerk)
|
0011|
|
0012|
|
0013|
|
0014| Date ________________________
|
0015|
|
0016|
|
0017| The roll call vote was 5 For 0 Against
|
0018| Yes: 5
|
0019| No: 0
|
0020| Excused: Sanchez, Tsosie, Vernon
|
0021| Absent: None
|
0022|
|
0023|
|
0024| H0101JU1
|