Section 5.17 - Protective Orders(1) A Protective Order may be sought to enable the provision of Protective Services in cases where a Protective Services Agency has Reasonable Cause to Believe that access to the allegedly Abused Elder has been barred by any person other than the allegedly Abused Elder or where the determination of the Elder's Decisional Capacity to consent to the provision of Protective Services is necessary for the completion of the Investigation.(2) Protective Orders may be sought for the following circumstances: (a) The Elder is believed to lack the Decisional Capacity to consent to protective services. A Protective Services Agency or the Department may petition the Court for an order under M.G.L. c. 19A, § 20(a) or 20(b) requesting that a medical/competency evaluation be completed in order to determine the Elder's Decisional Capacity to consent to Protective Services if, as a result of an Investigation, a Protective Services Agency or the Department has Reasonable Cause to Believe: 1. That a Reportable Condition exists;2. That the Elder is in need of one or more Protective Services to alleviate the conditions creating the Abuse;3. That an attempt has been made to obtain consent in accordance with 651 CMR 5.15 for the provision of one or more Protective Services and consent has not been obtained; and4. That consent has not been obtained because the Elder may lack the Decisional Capacity to consent to the provision of one or more Protective Services needed to alleviate the Abuse;5. That the risk to the Elder is serious enough to warrant Court intervention; and6. Supervisory approval for the initiation of Court action has been obtained.(b) The Elder lacks the Decisional Capacity to consent to the provision of protective services. A Protective Services Agency or the Department may petition the Court for an order under M.G.L. c. 19A, § 20(a) or 20(b) specifying those services necessary to alleviate the Abuse if, as a result of an Investigation, a Protective Services Agency or the Department has Reasonable Cause to Believe:1. That a Reportable Condition exists;2. That the Elder is in need of one or more Protective Services to alleviate the conditions creating the Abuse;3. That an attempt has been made to obtain consent in accordance with 651 CMR 5.15 for the provision of one or more Protective Services and consent has not been obtained; and4. That consent has not been obtained because the Elder lacks the Decisional Capacity to consent, as determined by a medical/competency evaluation, to the provision of one or more Protective Services needed to alleviate the Abuse;5. That the risk to the Elder is serious enough to warrant Court intervention; and6. Supervisory approval for the initiation of Court action has been obtained.(c) Access to the Elder is barred during the investigation of a report by a person other than the Elder. A Protective Services Agency or the Department may petition the Court for an order to complete the Investigation of a report of Abuse under M.G.L. c. 19A, § 20(a) or 20(b) if a Protective Services Agency or the Department has Reasonable Cause to Believe:1. That a Reportable Condition may exist;2. That the Elder may be in need of one or more Protective Services to alleviate the conditions creating the alleged Abuse;3. That an attempt(s) has been made to gain access in order to complete the Investigation and access has been barred by a person(s) other than the allegedly Abused Elder;4. That the alleged risk to the Elder is serious enough to warrant Court intervention; and5. Supervisory approval for the initiation of Court action has been obtained.(3)Contents of the Petition. The petition for an order for Protective Services and/or appointment of a fiduciary shall set forth the facts and attesting documentation required by the Court and be in accordance with procedures developed by the Court. The documentation shall include the petition, affidavits of the Protective Services Caseworker and other involved professionals, the medical certificate, and the accompanying physician's letter or affidavit, if available. Such petition shall specify the services/interventions requested and shall seek the least restrictive form of intervention that will alleviate or eliminate Abuse.(4)Rights of the Elder under M.G.L. c. 19A, § 20(a) or 20(b). (a) The Protective Services Caseworker shall inform the Elder of his or her rights under M.G.L. c. 19A, § 20(a) or 20(b) in a manner suitable to the Elder's level of understanding.(b) The Elder who is the subject of the petition shall have the right to be present, be represented by counsel, present evidence, and examine and cross-examine witnesses.(c) The Elder shall have the right, at his or her own expense, to secure an independent medical and psychological or psychiatric examination relevant to the issue involved in any hearing under M.G.L. c. 19A, § 20(a) or 20(b) and to present a report of his or her independent evaluation or the evaluator's personal testimony as evidence at the hearing. Appointed counsel of an indigent Elder may request that the Court order such an independent evaluation.(d) The Court shall not order an institutional placement or change of residence unless it finds that no less restrictive alternative will meet the needs of the Elder.(e) No Elder may be committed to a mental health facility pursuant to M.G.L. c. 19A, §§ 20(a) or 20(b).(f) If the Elder who is the subject of the petition is indigent, the Court shall appoint counsel to represent the interest of the Elder at the Court hearing.(g) If the Elder who is the subject of the petition lacks the Decisional Capacity to retain counsel or waives the right to counsel, the Court shall appoint a guardian ad litem to represent the interest of the Elder at the Court hearing.(h) A Protective Services Agency attorney shall request that the Court appoint counsel for the Elder who is the subject of the petition if the Elder is not represented by counsel at the Court hearing.(i) The Protective Services Caseworker, in conjunction with the Protective Services Supervisor and agency attorney, shall make reasonable attempts to facilitate the exercise of the Elder's rights as set forth in 651 CMR 5.17(4)(a) through (h) in any hearing under M.G.L. c. 19A, §§ 20(a) or 20(b).(5)Specific Procedural Statutory Requirements of the Court. (a)Non-emergency Protective Order, M.G.L. c. 19A, § 20(a). 1. The Court shall hold a hearing on the matter within 14 days of the filing of the petition.2. The Court shall give notice to the Elder who is the subject of the petition at least five days prior to the date set for the hearing.3. An order for Protective Services for an Elder pursuant to M.G.L. c. 19A, § 20(a) shall remain in effect for a period of six months, unless otherwise stipulated in such order. The Court may, for good cause shown, extend an order for Protective Services. Such extension shall remain in effect for a period of six months, unless otherwise stipulated in the order.(b)Emergency Protective Order, M.G.L. c. 19A, § 20(b).1. A member of the immediate family, or Caretaker of the Elder may also petition the court for a Protective Order if they have Reasonable Cause to Believe that the conditions set forth in 651 CMR 5.16(2) through (4) exist. A member of the Elder's immediate family or the Elder's Caretaker is encouraged to report the alleged Abuse to the Elder Abuse Hotline, the local designated Protective Services Agency, or the Department, in order to seek an Emergency Investigation of the situation and condition of the Elder prior to filing a petition with the Court for an Emergency order for Protective Services under M.G.L. c. 19A, § 20(b).
2. The Court shall give notice to the Elder who is the subject of the petition at least 24 hours prior to the Court hearing.3. The Court may dispense with notice upon finding that immediate and foreseeable physical harm to the Elder or others will result from the 24 hour delay and that reasonable attempts have been made to give such notice to the Elder.4. No statutory authority exists for the appointment of any type of fiduciary representation as a result of a hearing for an Emergency Protective Order under M.G.L. c. 19A, § 20(b).5. The order for Emergency Protective Services shall remain in effect for a period not to exceed 14 days. Said order may be extended for an additional period not to exceed 14 days if the Court finds that the extension is necessary to remove the Emergency. (6)Actions upon Obtaining a Protective Order. (a)Non-emergency Protective Order, M.G.L. c. 19A, § 20(a). 1. If, after a hearing the Court determines, based on the preponderance of the evidence, that the Elder has been Abused, is in need of Protective Services and lacks the Decisional Capacity to consent and no other person who is authorized to consent is available or willing to consent, the Court may order the provision of Protective Services.2. If, after a hearing the Court determines, based on the preponderance of the evidence, that the Elder has been Abused, is in need of Protective Services and lacks the Decisional Capacity to consent and no other person who is authorized to consent is available or willing to consent, the Court may appoint a Conservator, Guardian, or other person authorized to consent to the provision of Protective Services; provided however, that the Court shall establish the least restrictive form of fiduciary representation that will satisfy the needs of such Elder.3. The Protective Services Caseworker shall develop or revise and implement a service plan for the provision of one or more Protective Services in accordance with the order of the Court as soon as possible after the M.G.L. c. 19A, § 20(a) order is granted.4. The Elder, a Protective Services Agency, or the Department, may, for good cause shown, and, at any time, petition the Court to modify or set aside any order of the Court pursuant to M.G.L. c. 19A, § 20(a).5. Where funds are not available through appropriation from the Department to directly provide one or more Protective Services under M.G.L. c. 19A, § 20(a), a Protective Services Agency shall coordinate with and utilize existing social, health, mental health, legal and other resources, as available, to provide services under a service plan.6. A Protective Services Agency shall insure that the services are provided in the least intrusive manner and by persons already familiar with the Elder whenever possible.7. A copy of all Protective Orders issued by the Court shall be placed in the Protective Services case record.(b)Emergency Protective Order, M.G.L. c. 19A, § 20(b). 1. If, after a hearing the Court determines, based on the preponderance of the evidence, that the Elder has been or is being Abused, that an Emergency exists, and that the Elder lacks the Decisional Capacity to consent to the provision of Protective Services, the Court may order the provision of Protective Services on an Emergency basis.2. The Court has the statutory authority to order only those services necessary to remove the conditions creating the Emergency and shall specifically delineate the authorized services in its order.3. The Protective Services Caseworker shall develop or revise and implement a service plan for the provision of one or more Protective Services in accordance with the Emergency order as soon as possible after an M.G.L. c. 19A, § 20(b) order is granted.4. The Elder, a Protective Services Agency, or the Department, may, for good cause shown, and, at any time, petition the Court to modify or set aside any order of the Court pursuant to M.G.L. c. 19A, § 20(b).5. Where funds are not available through appropriation from the Department to directly provide one or more Protective Services under M.G.L. c. 19A, § 20(b), a Protective Services Agency shall coordinate with and utilize existing social, health, mental health, legal and other resources, as available, to provide services under a service plan.6. A Protective Services Agency shall insure that the services are provided in the least intrusive manner and by persons already familiar with the Elder whenever possible.7. A copy of all Protective Orders issued by the Court shall be placed in the Protective Services case record.Amended by Mass Register Issue 1330, eff. 1/13/2017.