Section 3908 - Emergency petition and order for protective services(a) Upon petition by the Public Guardian or Adult Protective Services, the Court may issue an order authorizing the provision of protective services on an emergency basis to an individual after finding on the record and, based on a preponderance of the evidence, that all of the following exist:(1) The The individual is an adult who is impaired or an adult who is incapacitated.(3) The individual lacks the capacity to consent to receive protective services.(4) No person authorized by law or Court order to give consent for the adult is available and willing to consent to emergency services.(5) A compelling reason exists to order services.(b) In determining whether to issue an emergency order, the Court shall consider all of the following: (1) Only the protective services necessary to remove the conditions creating the emergency may be ordered, and the Court shall specifically designate the approved services in its order.(2) Protective services authorized by an emergency order may not include hospitalization or change of residence unless the Court specifically finds the action is necessary and gives specific approval for the action in its order.(3) Protective services may be provided through an emergency order for a maximum of 90 days upon a showing to the Court that continuation of the original order is necessary to remove the emergency. During this period the adult who is impaired may petition the Court to have the emergency order removed.(4) In its order, the Court shall appoint the petitioner or another interested person other than the service provider as temporary guardian of the physical body of the adult who is impaired or the adult who is incapacitated. The temporary guardian shall assume responsibility for the adult's welfare and the Court's order shall grant the guardian authority to give consent for the adult for the approved protective services until the expiration of the order.(5) The issuance of an emergency order and the appointment of a temporary guardian does not deprive the individual of any rights except to the extent validly provided for in the emergency order.(6) To implement an emergency order, the Court may authorize forcible entry of the premises of the adult who is impaired or the adult who is incapacitated for the purpose of rendering protective services or transporting the adult to another location for services. Forcible entry may be authorized only after a showing to the Court that an attempt to gain voluntary access to the premises failed and forcible entry is necessary. The emergency order must include authorization for the appropriate police department to execute forcible entry.(c) A petitioner for an emergency order shall state, to the best of the petitioner's knowledge and belief, all of the following: (1) The petitioner's name, address, and interest in the circumstances for which the petitioner seeks an emergency order.(2) The name, address, and approximate age of the adult who is impaired or the adult who is incapacitated in need of protective services.(3) If the information exists and can be obtained, the names and addresses of the spouse and next of kin of the adult who is impaired or the adult who is incapacitated.(4) The petitioner's attempts to contact the individuals named under paragraph (c)(3) of this section and the individuals' responses to the situation.(5) The petitioner's reasonable belief, and facts supporting the belief, as to the existence of the facts stated under paragraphs (a)(1) through (5) of this section.(6) Facts showing petitioner's attempt to obtain the adults consent to protective services and the outcome of the attempt.(7) The proposed protective services.(d)(1) Actual notice of the filing of a petition under this section and other relevant information, including the factual basis of the belief that emergency services are needed and a description of the exact services to be rendered, must be given to the adult who is impaired or adult who is incapacitated and, at the Court's discretion, to the adult's spouse or, if none, to the adult's adult children, next of kin, or guardian if any.(2) The Court may waive notice to a party other than the adult who is impaired or adult who is incapacitated and in need of protective services, if the petition avers with specificity that notice would be detrimental to the adult.(3) Notice must be given in language reasonably understandable by the intended recipient at least 24 hours prior to the hearing for emergency intervention, or longer if possible.(e) Upon the filing of a petition for an emergency order for protective services, the Court shall hold a hearing within 7 days or immediately, if necessary, under § 3909 of this title.(f) If the adult who is impaired or the adult who is incapacitated continues to need protective services after the order and renewal under paragraph (b)(3) of this section has expired, services may be rendered only under the appointment of a guardian.(g) The petitioner or a witness supplying information is immune from civil liability for damages as a result of filing the petition if the petitioner or witness acts in good faith and believes the adult who is impaired or the adult who is incapacitated needs assistance.(h) This chapter does not affect the authority of the police departments of this State to transfer an adult who is impaired or an adult who is incapacitated to a mental health facility in cases of a psychiatric emergency under Chapter 50 of Title 16.(i)(1) The Court may issue an order for forcible entry of a building or premises if the Court finds, based upon a verified petition, affidavit, or other evidentiary materials, that probable cause exists to believe that all of the following are true: The adult at the building or premises is an adult who is impaired or an adult who is incapacitated.
c. The emergency threatens serious harm to the adult who is impaired or the adult who is incapacitated and the harm may occur before a hearing on the petition for an emergency order may be held.d. The adult who is impaired or the adult who is incapacitated is located in the building or premises described.e. Entry or access to the building or premises is being denied.(2) The Court must sign the order for entry.(3) The order for entry must include all of the following:a. The address of the building or premises where the adult who is impaired or the adult who is incapacitated is located.b. The name of the adult who is impaired or the adult who is incapacitated reported to need protective services.c. A command that entry to the building or premises where the adult who is impaired or adult who is incapacitated is located be permitted for the purpose of seeing or interviewing, assessing, and counseling the adult named in the order.d. Authorization for entry on a date specified in the order.(4) This subsection may not be construed to limit or restrict entry if the consent of the owner, lessor, or lawful occupant is obtained.(5) If a member of the Court is unavailable, a judge of the Superior Court may exercise the powers under this subsection.Amended by Laws 2023, ch. 529,s 9, eff. 11/1/2024.Amended by Laws 2017 , ch. 343, s 1, eff. 7/23/2018.63 Del. Laws, c. 384, §1; 66 Del. Laws, c. 49, §§3, 4; 67 Del. Laws, c. 185, §1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 377.;