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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
SENATE BILL 300 By: Rosino
AS INTRODUCED
An Act relating to guardianship of vulnerable adult;
amending 43A O.S. 2011, Section 1 0-108, which relates
to petition for involuntary pr otective services;
requiring dismissal of temporary guardianship upon
removal of emergency conditions; clarifying scope of
certain service; and providing an effecti ve date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 43A O.S. 2011, Section 10 -108, is
amended to read as follows:
Section 10-108. A. 1. If the Department of Human Services
determines that a vulnerable adult is suffering fro m abuse, neglect,
self-neglect, or financial neglect or exploitation presenting a
substantial risk of death or immediate and serious physical harm to
the person or financial exploitation of the estate of the person,
and the vulnerable adult lacks mental ca pacity to consent to receive
protective services an d no consent can be obtained, the Department
may petition the district court in the county specified by par agraph
3 of this subsection for an order:
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a. authorizing involuntary protective services and
appointing a temporary guardian of the person and/or
the estate,
b. freezing the assets of the vulnerable adult, if the
vulnerable adult is being exploited, establ ishing any
new accounts necessary to pay the daily living
expenses of the vulnerable adult, and di recting a full
accounting and investigation of the person alleged to
be improperly managing the esta te of the vulnerable
adult,
c. suspending or revoking the powers of an attorney -in-
fact granted by a durable power of attorney, or
revoking an irrevocable t rust, or terminating a
guardianship or conservators hip established pursuant
to the Oklahoma Guardian ship and Conservatorship Act ,
or
d. directing any law enfo rcement agency to transport any
incapacitated person or vulnerable adult as necessary
for appropriate care, treatment and residential
placement. If such transportation is ordered,
reimbursement for expenses incurred from the
transportation of a vulnerable adult under the
Department’s temporary guardianship shall be paid as
provided for in Section 10 -107 of this title.
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2. Under no circumstances shall the court authorize the
Department, pursuant to t his subsection, to consent or deny consent
to a Do-Not-Resuscitate order or the withdrawal of hydration or
nutrition or other life -sustaining treatment alth ough the court
retains jurisdiction to hear such ma tters under applicable law.
3. The district cour t which may be petitioned by the Department
for an order pursuant to paragraph 1 of this subsection is:
a. the district court in the county in which the
vulnerable adult resides,
b. the district court in the county in which the
vulnerable adult is receivin g inpatient services, or
c. the district court in the coun ty where the vulnerable
adult is located when any delay caused by taking the
petition to the distr ict court in the county of the
residence of the vul nerable adult would result in
greater substantial risk of death or greater serious
physical harm to the vul nerable adult. The petition
shall include an explanation of why the petition was
filed in the district court in the county specified by
this subparagraph rather than in the district court as
specified in subparagraph a or b of this paragraph.
B. The petition shall be sworn to and include the name, age,
and address of the vulnerable adult who the Depa rtment has
determined is in need of emergency prote ctive services, the nature
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of the abuse, neglect, or exploitation, the services needed, and
information relating to the capacity of the person to consent to
services and a description of the attempts of th e Department to
obtain consent and the name of the person or organization proposed
to be appointed as temporary guardian.
C. 1. The vulnerable adult shall r eceive an opportunity for a
hearing upon the petition, and shall be personally served with a
copy of the petition and a notice scheduling hearing at least forty-
eight (48) hours prior to any such he aring if the petition seeks
temporary guardianship of thir ty (30) days or more.
2. a. The hearing shall be set by the court on an expedited
basis, but no later than five (5) calendar days, not
including weekends or holidays when the court is
closed, from the date the notice scheduling hearing is
signed by the judge. The vulnerable adult shall have
a right to a closed hearing unless such vulnerable
adult requests otherwise.
b. Unless the vulnerable adult obje cts or the person
requiring notification pursuant to this subparagraph
is alleged to have abused, neglected or exploited the
vulnerable adult, the following persons shall be
notified of any hearing held pu rsuant to this
subsection:
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(1) the legal guardian, guardian ad litem and
caretaker of the vulnerable adult,
(2) any person so requested by the vulnerable adul t
to be present at the hearing, and
(3) persons required to be notified pursuant to
Section 3-110 of Title 30 of the Oklahoma
Statutes.
D. 1. Upon sworn testimony of a representative of the
Department, or statement of a district attorney representing the
Department, that immediate and reasonably foreseeable death or
serious physical harm to or financ ial exploitation of the vulnerable
adult will result, the court may waive prior notice and issue a
seventy-two-hour temporary guardianship and provide involun tary
protective services whether or not during regular courthouse
business hours. However, within twenty-four (24) hours of issuance
of the seventy-two-hour order, the vulnerable adult and the atto rney
of the vulnerable adult, if known, shall be personall y served with
written notice scheduling a hearing within seventy -two (72) hours.
2. If a hearing on the seventy-two-hour order is declined, or
upon conclusion of any such hearing, the court may ter minate the
temporary guardianship and involuntary services or enter a temporary
guardianship for up to thirty (30) additional calendar days as
provided for in subsection G of this section.
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E. 1. The vulnerable adult has a right to be present and
represented by counsel at any hearing authorized by this section.
If the vulnerable adult is indigent or, in the determination of the
court, lacks capacity to waiv e the right to counsel, the court shall
immediately appoint counsel who shall personally meet with t he
vulnerable adult and attempt to discuss the petition or any pending
motion prior to any hearing.
2. If the vulnerable adult is not in attendance at a sc heduled
hearing, the court shall make a special fin ding as to why the
vulnerable adult is unable to attend, and, upon the request of the
vulnerable adult or t he attorney of the vulnerable adult, may
continue the hearing to allow the vulnerable adult to att end.
3. If the vulnerable adult is indigent, the c ost of
representation by counsel shall be borne b y court funds.
4. If the vulnerable adult is not indigent , the court may order
costs of representation paid from the estate in the same manner as
currently paid under the Oklahoma Guardianship and Conservat orship
Act.
F. 1. After a hearing on the peti tion, the court may:
a. appoint a temporary guardian and o rder involuntary
protective services including, but not limited to,
authorization for medical and/ or psychological
treatment and evaluations, and resid ential placement
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subject to the provisions of s ubsection G of this
section,
b. issue an order freezing al l assets of the vulnerable
adult, establish any new accounts necessary to pay the
daily living expenses of the vulnerable adult, and
order a full accounting and investigation of the
person alleged to be improperly managing the
vulnerable adult’s estate,
c. suspend or revoke powers of attorney or terminate a
guardianship or conservatorship upon a findin g that
the attorney-in-fact, guardian or conservator failed
to act appropriately on behalf of the vu lnerable
adult, or
d. order any law enforcement agency to transport any
incapacitated person or vulnerable adult as necessary
for appropriate care, treatmen t and residential
placement. If such transportation is ordered,
reimbursement for expenses incurred from the
transportation of a vulnerable adult under the
Department’s temporary guardianship shall be paid as
provided for in Section 10 -107 of this title.
2. a. Except as otherwise provided by subparagraphs b and c
of this paragraph, the court appointing a temporary
guardian and ordering involuntary protective s ervices
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shall not have authority to order the sale of the real
property of the vulnerable adult.
b. If the Department of Human Services has been appoin ted
temporary guardian and the court issues an order for
the Department to continue as the temporary guar dian
of the vulnerable adult beyond the one hundred eighty
(180) calendar days authorized by this section because
there is no one willing and able to a ct as guardian
for the vulnerable adult, the De partment, as temporary
guardian may, after one (1) year fr om its initial
appointment, sell the real property of a vulnerable
adult pursuant to the provision s of the Oklahoma
Guardianship and Conservatorship Ac t.
c. The Department, as temporary guardian of a vulnerable
adult, may also sell the real property of the
vulnerable adult pursuant to the provisions of the
Oklahoma Guardianship and Conservatorship Act prior to
the one-year requirement specified in subpar agraph b
of this paragraph, if not selling the real property
would jeopardize the vulnerable adult ’s eligibility
for Medicaid. The fact that the vulnerable adult
would be in jeopardy for receipt of Medi caid if the
property was not sold shall be stated upo n the court
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order directing the sale of the rea l property of the
vulnerable adult.
d. The court may issue an order authorizing the
Department to sell personal property of a vulnerable
adult when additional resources are required to pay
for necessary care f or the vulnerable adult pursuant
to state law.
G. Whenever the court issues an order for involuntary
protective services, the court shall adhere to the following
limitations:
1. Only such protective se rvices as are necessary to remove the
conditions creating the emergency shall be ordered, and the co urt
shall specifically designate the approved services in the order of
the court. When the conditions creating the emergency have been
removed, the court s hall dismiss the temporary gua rdianship ordered
pursuant to this section;
2. The scope of service provided by the Department shall be
limited to protective se rvices or the establishment of eligibility
for protective services for the person and estate. The Department
shall request dismissal of the temporary guardianship ordered
pursuant to this section when:
a. an appropriate level of care for the vulnerable a dult
as determined by the De partment has been established,
b. assets have been secured, if applicable, and
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c. a representative payee or trustee has been set for
financial management , if applicable;
3. Protective services authorized by an involuntary protective
services order shall not include a change of residence unless the
court specifically finds suc h action is necessary to remove the
conditions creating the emergency and gives specific approval for
such action in the order of the court. Emergency placement may be
made to such facilities as nursing homes, hospital rehabilitation
centers, assisted liv ing centers, foster care and in-home
placements, or to other appropriate facilities for emergency care or
evaluation to determine the extent of a vulnerable adult ’s physical,
mental and functiona l limitations; provided, however, emergency
placement shall not be made or construed as an alternativ e to
emergency detention and protective custody as authorized under
Section 5-206 et seq. of this title or made or construed as an
alternative to involunta ry commitment under Section 5 -410 et seq. of
this title when a vulnerable adult otherwise meets the c riteria for
involuntary commitment. Services to such vulnerable adults shall be
provided in a manner that is appropriate for the adult ’s age and
condition and, except for facilities operated by the Department of
Mental Health and Substance Abuse Services or community-based
structured crisis centers under contract with the Department
pursuant to Section 3 -317 of this title, services provided to
vulnerable adults pursuant to this section shall be provided in a
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setting that is segregated from any patients or residents of a
facility who have been determined to be a danger to others ; and
3. 4. Involuntary protective services may be provided for a
period not to exceed thirty (30) calendar days except as provided by
subsections L and M of this section.
H. The court shall appoint the Department or an interested
person or organization as temporary guardian of the person with
responsibility for the welfare of such per son and authority to give
consent on behalf of the person fo r the approved involuntary
protective services until the expiration of the order.
I. The issuance of an order for involuntary protective services
and the appointment of a temporary guardian shall not deprive the
vulnerable adult of any rights except to th e extent validly provided
for in the order or appointment.
J. 1. To enforce an order for involuntary protective services,
the court may authorize:
a. forcible entry of the premises of the vulner able adult
to be protected for the purpose of rendering
protective services but only after a reasona ble
showing to the court that good faith attempts to gain
voluntary access to the premises have failed and
forcible entry is necessary,
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b. the transporting of the vulnerable adult to another
location for the provisio n of involuntary services,
and
c. the eviction of persons who are in a position to
exploit the vulnerable adult from any property owned,
leased, or rented by the vulnerable adult and
restriction of those persons’ further access to any
property of the vulne rable adult.
2. If forcible entry is au thorized by the court, the order
shall include a directive that the Department ’s representative be
accompanied by a police officer or deputy sheriff in the county
where the vulnerable adult or property of the vulnera ble adult is
located, and the police off icer or deputy sheriff shall make the
forcible entry.
K. The vulnerable adult, the temporary guardian, or any
interested person may petition the court to h ave the order to
provide involuntary protective services set aside or modified at any
time.
L. If the vulnerable adult continues to need involuntary
protective services after expiration of the thirty -day temporary
guardianship provided in subsection G of this section, the temporary
guardian shall immediately file a verified motion requesting the
court to, except as otherwise provided by subsection F of this
section, continue the temporary guardianship and involuntary
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protective services under this section for a period not to exceed
one hundred eighty (180) calendar days.
M. 1. Service of the verified m otion shall be made in
conformity with subsection C of this section.
2. Upon filing such motion, the court shall order that a
physical, mental, and social evaluation of the vulnerable adult be
conducted by the Depar tment and that a proposed plan of care b e
submitted to the court within thirty (30) calendar days thereafter
reflecting the evaluation findings and recommended services.
3. Upon filing such motio n, the prior temporary guardianship
shall remain in full for ce and effect pending a review hearing a fter
the thirty-day evaluation period. The caretaker, guardian or next -
of-kin of the vulnerable adult may request that the evaluation
period be shortened f or good cause.
4. The evaluation shall include at least the following
information:
a. the address of the place where the person is residing
and the person or agency which is providing care,
treatment, or services at present,
b. a summary of the profession al treatment and services
provided to the person by the Depa rtment or agency, if
any, in connection with the problem creating the need
for emergency protective services, and
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c. a medical and social evaluation , including, but not
limited to, the Department ’s assessment of the
person’s capacity to consent to services , a
psychological or psychiatric evaluat ion and review if
the mental state of the person is in question, and any
recommendations for or against maintenance of partial
legal rights. The evaluation and review shall include
recommendations for placement base d upon the best
interests of the vulnera ble adult taking into
consideration the following:
(1) the least restrictive environment,
(2) the desires of the vulnerable adult and legal
guardian,
(3) the desires of the caretaker of the vulnerable
adult and of any of the persons specified in
Section 3-110 of Title 30 of the Oklahoma
Statutes,
(4) the physical and mental health needs of the
vulnerable adult,
(5) the available programs and services, and
(6) the health, well-being and welfare of the
vulnerable adult and the public.
During the hearing to co nsider the motion to continue the
temporary guardianship of the vulnerable adult for up to one hundred
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eighty (180) calendar days, the court shall consider the
Department’s findings and proposed plan of care and any other
evidence presented by the caretake r, guardian or other interested
persons. The court shall either terminate the temporary
guardianship and all involuntary services or continue the temporary
guardianship and specify any necessary services to be provi ded by
the Department for a period not t o exceed one hundred eighty (180)
calendar days. Provided, the court may continue the guardianship of
the Department, if there is no one willing and able t o act as
guardian for the vulnerable adult.
N. Neither the Department nor any of its employees or a ny other
petitioner shall be liable for filing a petition pursuant to the
Protective Services for Vulnerable Adults Act if the petition was
filed in good faith.
SECTION 2. This act shall become effec tive November 1, 2021.
58-1-365 TEK 1/7/2021 9:37:22 AM