63.2-1609 - Emergency order for adult protective services. - Virginia Statutes

§ 63.2-1609. Emergency order for adult protective services.

A. Upon petition by the local department to the circuit court, the court mayissue an order authorizing the provision of adult protective services on anemergency basis to an adult after finding on the record, based on apreponderance of the evidence, that:

1. The adult is incapacitated;

2. An emergency exists;

3. The adult lacks the capacity to consent to receive adult protectiveservices; and

4. The proposed order is substantially supported by the findings of the localdepartment that has investigated the case, or if not so supported, there arecompelling reasons for ordering services.

B. In issuing an emergency order, the court shall adhere to the followinglimitations:

1. Only such adult protective services as are necessary to improve or correctthe conditions creating the emergency shall be ordered, and the court shalldesignate the approved services in its order. In ordering adult protectiveservices the court shall consider the right of a person to rely on nonmedicalremedial treatment in accordance with a recognized religious method ofhealing in lieu of medical care.

2. The court shall specifically find in the emergency order whetherhospitalization or a change of residence is necessary. Approval of thehospitalization or change of residence shall be stated in the order. No adultmay be committed to a mental health facility under this section.

3. Adult protective services may be provided through an appropriate courtorder only for a period of 15 days. The original order may be renewed oncefor a five-day period upon a showing to the court that continuation of theoriginal order is necessary to remove the emergency.

4. In its order the court shall appoint the petitioner or another interestedperson, as temporary guardian of the adult with responsibility for theadult's welfare and authority to give consent for the adult for the approvedadult protective services until the expiration of the order.

5. The issuance of an emergency order and the appointment of a temporaryguardian shall not deprive the adult of any rights except to the extentprovided for in the order or appointment.

C. The petition for an emergency order shall set forth the name, address, andinterest of the petitioner; the name, age and address of the adult in need ofadult protective services; the nature of the emergency; the nature of theadult's incapacity, if determinable; the proposed adult protective services;the petitioner's reasonable belief, together with facts supportive thereof,as to the existence of the facts stated in subdivisions A 1 through A 4; andfacts showing the petitioner's attempts to obtain the adult's consent to theservices and the outcomes of such attempts.

D. Written notice of the time, date and place for the hearing shall be givento the adult, to his spouse, or if none, to his nearest known next of kin,and a copy of the petition shall be attached. Such notice shall be given atleast 24 hours prior to the hearing for emergency intervention. The court maywaive the 24-hour notice requirement upon showing that (i) immediate andreasonably foreseeable physical harm to the adult or others will result fromthe 24-hour delay, and (ii) reasonable attempts have been made to notify theadult, his spouse, or if none, his nearest known next of kin.

E. Upon receipt of a petition for an emergency order for adult protectiveservices, the court shall hold a hearing. The adult who is the subject of thepetition shall have the right to be present and be represented by counsel atthe hearing. If it is determined that the adult is indigent, or, in thedetermination of the judge, lacks capacity to waive the right to counsel, thecourt shall locate and appoint a guardian ad litem. If the adult is indigent,the cost of the proceeding shall be borne by the Commonwealth. If the adultis not indigent, the court may order that the cost of the proceeding shall beborne by such adult. This hearing shall be held no earlier than 24 hoursafter the notice required in subsection D has been given, unless such noticehas been waived by the court.

F. The adult, the temporary guardian or any interested person may petitionthe court to have the emergency order set aside or modified at any time thereis evidence that a substantial change in the circumstances of the adult forwhom the emergency services were ordered has occurred.

G. Where adult protective services are rendered on the basis of an emergencyorder, the temporary guardian shall submit to the court a report describingthe circumstances thereof including the name, place, date and nature of theservices provided. This report shall become part of the court record. Suchreport shall be confidential and open only to such persons as may be directedby the court.

H. If the person continues to need adult protective services after therenewal order provided in subdivision B 3 has expired, the temporary guardianor the local department shall immediately petition the court to appoint aguardian pursuant to Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2.

(1977, c. 547, § 63.1-55.6; 1978, c. 562; 1979, c. 451; 1997, c. 921; 2002,c. 747; 2004, cc. 749, 1011.)