BILL REQ. #:  H-1491.3 

READ FIRST TIME 02/15/07.   

     AN ACT Relating to the protection of vulnerable adults; amending RCW 74.34.020, 74.34.110, 74.34.120, 74.34.145, 74.34.150, and 74.34.210; reenacting and amending RCW 74.34.130; and adding new sections to chapter 74.34 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 74.34.020 and 2006 c 339 s 109 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Abandonment" means action or inaction by a person or entity with a duty of care for a vulnerable adult that leaves the vulnerable person without the means or ability to obtain necessary food, clothing, shelter, or health care.
     (2) "Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult. In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:
     (a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not it is consensual.
     (b) "Physical abuse" means the willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or the use of chemical restraints or physical restraints unless the restraints are consistent with licensing requirements, and includes restraints that are otherwise being used inappropriately.
     (c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.
     (d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.
     (3) "Consent" means express written consent granted after the vulnerable adult or his or her legal representative has been fully informed of the nature of the services to be offered and that the receipt of services is voluntary.
     (4) "Department" means the department of social and health services.
     (5) "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW, boarding homes; chapter 18.51 RCW, nursing homes; chapter 70.128 RCW, adult family homes; chapter 72.36 RCW, soldiers' homes; or chapter 71A.20 RCW, residential habilitation centers; or any other facility licensed by the department.
     (6) "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than for the vulnerable adult's profit or advantage.
     (7) "Individual provider" means a person under contract with the department to provide services in the home under chapter 74.09 or 74.39A RCW.
     (8) "Interested person" means a person who is interested in the welfare of the vulnerable adult and who has a good faith belief that the court's intervention is necessary to protect the vulnerable adult.
     (9) "Mandated reporter" is an employee of the department; law enforcement officer; social worker; professional school personnel; individual provider; an employee of a facility; an operator of a facility; an employee of a social service, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agency; county coroner or medical examiner; Christian Science practitioner; or health care provider subject to chapter 18.130 RCW.
     (((9))) (10) "Neglect" means (a) a pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or (b) an act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42.100.
     (((10))) (11) "Permissive reporter" means any person, including, but not limited to, an employee of a financial institution, attorney, or volunteer in a facility or program providing services for vulnerable adults.
     (((11))) (12) "Protective services" means any services provided by the department to a vulnerable adult with the consent of the vulnerable adult, or the legal representative of the vulnerable adult, who has been abandoned, abused, financially exploited, neglected, or in a state of self-neglect. These services may include, but are not limited to case management, social casework, home care, placement, arranging for medical evaluations, psychological evaluations, day care, or referral for legal assistance.
     (((12))) (13) "Self-neglect" means the failure of a vulnerable adult, not living in a facility, to provide for himself or herself the goods and services necessary for the vulnerable adult's physical or mental health, and the absence of which impairs or threatens the vulnerable adult's well-being. This definition may include a vulnerable adult who is receiving services through home health, hospice, or a home care agency, or an individual provider when the neglect is not a result of inaction by that agency or individual provider.
     (((13))) (14) "Vulnerable adult" includes a person:
     (a) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself; or
     (b) Found incapacitated under chapter 11.88 RCW; or
     (c) Who has a developmental disability as defined under RCW 71A.10.020; or
     (d) Admitted to any facility; or
     (e) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW; or
     (f) Receiving services from an individual provider.

Sec. 2   RCW 74.34.110 and 1999 c 176 s 12 are each amended to read as follows:
     An action known as a petition for an order for protection of a vulnerable adult in cases of abandonment, abuse, financial exploitation, or neglect is created.
     (1) A vulnerable adult, or interested person on behalf of the vulnerable adult, may seek relief from abandonment, abuse, financial exploitation, or neglect, or the threat thereof, by filing a petition for an order for protection in superior court.
     (2) A petition shall allege that the petitioner, or person on whose behalf the petition is brought, is a vulnerable adult and that the petitioner, or person on whose behalf the petition is brought, has been abandoned, abused, financially exploited, or neglected, or is threatened with abandonment, abuse, financial exploitation, or neglect by respondent.
     (3) A petition shall be accompanied by affidavit made under oath, or a declaration signed under penalty of perjury, stating the specific facts and circumstances which demonstrate the need for the relief sought. If the petition is filed by an interested person, the affidavit or declaration must also include a statement of why the petitioner qualifies as an interested person.
     (4) A petition for an order may be made whether or not there is a pending lawsuit, complaint, petition, or other action ((between the parties)) pending that relates to the issues presented in the petition for an order for protection.
     (5) Within ninety days of receipt of the master copy from the administrative office of the courts, all court clerk's offices shall make available the standardized forms and instructions required by section 3 of this act.
     (6) Any assistance or information provided by any person, including, but not limited to, court clerks, employees of the department, and other court facilitators, to another to complete the forms provided by the court in subsection (5) of this section does not constitute the practice of law.
     (7) A petitioner is not required to post bond to obtain relief in any proceeding under this section.
     (((6))) (8) An action under this section shall be filed in the county where the ((petitioner)) vulnerable adult resides; except that if the ((petitioner)) vulnerable adult has left or been removed from the residence as a result of abandonment, abuse, financial exploitation, or neglect, or in order to avoid abandonment, abuse, financial exploitation, or neglect, the petitioner may bring an action in the county of either the vulnerable adult's previous or new residence.
     (((7) The filing fee for the petition may be waived at the discretion of the court.))
     (9) No filing fee may be charged to the petitioner for proceedings under this section. Standard forms and written instructions shall be provided free of charge.

NEW SECTION.  Sec. 3   A new section is added to chapter 74.34 RCW to read as follows:
     (1) The administrative office of the courts shall develop and prepare standard petition, temporary order for protection, and permanent order for protection forms, a standard notice form to provide notice to the vulnerable adult if the vulnerable adult is not the petitioner, instructions, and a court staff handbook on the protection order process. The standard petition and order for protection forms must be used after September 1, 2007, for all petitions filed and orders issued under this chapter. The administrative office of the courts, in preparing the instructions, forms, notice, and handbook, may consult with attorneys from the elder law section of the Washington state bar association, judges, the department, the Washington protection and advocacy system, and law enforcement personnel.
     (a) The instructions shall be designed to assist petitioners in completing the petition, and shall include a sample of the standard petition and order for protection forms.
     (b) The order for protection form shall include, in a conspicuous location, notice of criminal penalties resulting from violation of the order.
     (c) The standard notice form shall be designed to explain to the vulnerable adult in clear, plain language the purpose and nature of the petition and that the vulnerable adult has the right to participate in the hearing and to either support or object to the petition.
     (2) The administrative office of the courts shall distribute a master copy of the standard forms, instructions, and court staff handbook to all court clerks and shall distribute a master copy of the standard forms to all superior, district, and municipal courts.
     (3) The administrative office of the courts shall determine the significant non-English-speaking or limited-English-speaking populations in the state. The administrator shall then arrange for translation of the instructions required by this section, which shall contain a sample of the standard forms, into the languages spoken by those significant non-English-speaking populations, and shall distribute a master copy of the translated instructions to all court clerks by September 1, 2007.
     (4) The administrative office of the courts shall update the instructions, standard forms, and court staff handbook when changes in the law make an update necessary. The updates may be made in consultation with the persons and entities specified in subsection (1) of this section.
     (5) For purposes of this section, "court clerks" means court administrators in courts of limited jurisdiction and elected court clerks.

Sec. 4   RCW 74.34.120 and 1986 c 187 s 6 are each amended to read as follows:
     (1) The court shall order a hearing on a petition under RCW 74.34.110 not later than fourteen days from the date of filing the petition.
     (2) Personal service shall be made upon the respondent not less than ((five)) six court days before the hearing. When good faith attempts to personally serve the respondent have been unsuccessful, the court shall permit service by mail or by publication.
     (3) When a petition under RCW 74.34.110 is filed by someone other than the vulnerable adult, notice of the petition and hearing must be personally served upon the vulnerable adult not less than six court days before the hearing. In addition to copies of all pleadings filed by the petitioner, the petitioner shall provide a written notice to the vulnerable adult using the standard notice form developed under section 3 of this act. When good faith attempts to personally serve the vulnerable adult have been unsuccessful, the court shall permit service by mail, or by publication if the court determines that personal service and service by mail cannot be obtained.
     (4) If timely service under subsections (2) and (3) of this section cannot be made, the court ((may set a new hearing date)) shall continue the hearing date until the substitute service approved by the court has been satisfied. The court may continue any temporary order for protection until the hearing is held. A petitioner may also move for temporary relief under chapter 7.40 RCW.

Sec. 5   RCW 74.34.130 and 2000 c 119 s 27 and 2000 c 51 s 2 are each reenacted and amended to read as follows:
     The court may order relief as it deems necessary for the protection of the ((petitioner)) vulnerable adult, including, but not limited to the following:
     (1) Restraining respondent from committing acts of abandonment, abuse, neglect, or financial exploitation against the vulnerable adult;
     (2) Excluding the respondent from ((petitioner's)) the vulnerable adult's residence for a specified period or until further order of the court;
     (3) Prohibiting contact with the vulnerable adult by respondent for a specified period or until further order of the court;
     (4) Prohibiting the respondent from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;
     (5) Requiring an accounting by respondent of the disposition of ((petitioner's)) the vulnerable adult's income or other resources;
     (6) Restraining the transfer of the respondent's and/or vulnerable adult's property for a specified period not exceeding ninety days; and
     (7) Requiring the respondent to pay ((the)) a filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney's fee.
     Any relief granted by an order for protection, other than a judgment for costs, shall be for a fixed period not to exceed ((one year)) five years. The clerk of the court shall enter any order for protection issued under this section into the judicial information system.

Sec. 6   RCW 74.34.145 and 2000 c 119 s 2 are each amended to read as follows:
     (1) An order for protection of a vulnerable adult issued under this chapter which restrains the respondent or another person from committing acts of abuse, prohibits contact with the ((petitioner)) vulnerable adult, excludes the person from any specified location, or prohibits the person from coming within a specified distance from a location, shall prominently bear on the front page of the order the legend: VIOLATION OF THIS ORDER WITH ACTUAL NOTICE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER CHAPTER 26.50 RCW AND WILL SUBJECT A VIOLATOR TO ARREST.
     (2) Whenever an order for protection of a vulnerable adult is issued under this chapter, and the respondent or person to be restrained knows of the order, a violation of a provision restraining the person from committing acts of abuse, prohibiting contact with the ((petitioner)) vulnerable adult, excluding the person from any specified location, or prohibiting the person from coming within a specified distance of a location, shall be punishable under RCW 26.50.110, regardless of whether the person is a family or household member as defined in RCW 26.50.010.

Sec. 7   RCW 74.34.150 and 1986 c 187 s 9 are each amended to read as follows:
     The department of social and health services, in its discretion, may seek relief under RCW 74.34.110 through 74.34.140 on behalf of and with the consent of any vulnerable adult. When the department has reason to believe a vulnerable adult lacks the ability or capacity to consent, the department, in its discretion, may seek relief under RCW 74.34.110 through 74.34.140 on behalf of the vulnerable adult. Neither the department of social and health services nor the state of Washington shall be liable for ((failure)) seeking or failing to seek relief on behalf of any persons under this section.

NEW SECTION.  Sec. 8   A new section is added to chapter 74.34 RCW to read as follows:
     (1) When a petition for protection under RCW 74.34.110 is filed by someone other than the vulnerable adult or the vulnerable adult's guardian, and the vulnerable adult for whom protection is sought advises the court at the hearing that he or she does not want all or part of the protection sought in the petition, then the court may dismiss the petition or the provisions that the vulnerable adult objects to and any protection order issued under RCW 74.34.120 or 74.34.130, or the court may take additional testimony or evidence, or order additional hearings to determine whether the vulnerable adult is unable, due to incapacity, undue influence, or other factors found by the court, to protect his or her person or estate in connection with the issues raised in the petition or order.
     (2) If the court issues a protection order over the objection of the vulnerable adult, and is not able to make an adequate determination regarding whether the vulnerable adult is unable, due to incapacity, undue influence, or other factors found by the court, to protect his or her person or estate in connection with the issues raised in the petition or order, based on the evidence and testimony offered at the hearing, then the court shall schedule a separate evidentiary hearing on this issue and on any other issue the court may order. The hearing shall be held within fourteen days of entry of the order. Notice of the time and place of the evidentiary hearing shall be personally served upon the vulnerable adult and the respondent not less than six court days before the hearing. When good faith attempts to personally serve the vulnerable adult and the respondent have been unsuccessful, the court shall permit service by mail, or by publication if the court determines that personal service and service by mail cannot be obtained. If timely service cannot be made, the court may set a new hearing date. A hearing under this subsection is not necessary if the vulnerable adult has been determined to be incapacitated under the guardianship laws, chapter 11.88 RCW. If a hearing is scheduled under this subsection, the protection order shall remain in effect pending the court's decision at the subsequent hearing.
     (3) At the hearing scheduled by the court, the court shall give the vulnerable adult, the respondent, the petitioner, and in the court's discretion other interested persons, the opportunity to testify and submit relevant evidence.
     (4) If the court determines that the vulnerable adult is capable of protecting his or her person or estate in connection with the issues raised in the petition, and the individual continues to object to the protection order, the court shall dismiss the order or may modify the order if agreed to by the vulnerable adult, or the court may enter any other orders as are proper or necessary in the court's discretion. If the court determines that the vulnerable adult is not capable of protecting his or her person or estate in connection with the issues raised in the petition or order, and that the individual continues to need protection, the court shall order relief consistent with RCW 74.34.130 as it deems necessary for the protection of the vulnerable adult. In the entry of any order that is inconsistent with the expressed wishes of the vulnerable adult, the court's order shall be governed by the legislative findings contained in RCW 74.34.005.

NEW SECTION.  Sec. 9   A new section is added to chapter 74.34 RCW to read as follows:
     Any vulnerable adult who has not been adjudicated incapacitated under chapter 11.88 RCW, or the vulnerable adult's guardian, at any time subsequent to entry of a permanent protection order under this chapter, may apply to the court for an order to modify or vacate the order. In a hearing on an application to dismiss or modify the protection order, the court shall grant such relief consistent with RCW 74.34.110 as it deems necessary for the protection of the vulnerable adult, including dismissal or modification of the protection order.

Sec. 10   RCW 74.34.210 and 1995 1st sp.s. c 18 s 86 are each amended to read as follows:
     A petition for an order for protection ((or)) may be brought by the vulnerable adult, the vulnerable adult's guardian or legal fiduciary, the department, or any interested person as defined in RCW 74.34.020. An action for damages under this chapter may be brought by the ((plaintiff)) vulnerable adult, or where necessary, by his or her family members and/or guardian or legal fiduciary((, or as otherwise provided under this chapter)). The death of the ((plaintiff)) vulnerable adult shall not deprive the court of jurisdiction over a petition or claim brought under this chapter. Upon petition, after the death of the vulnerable ((person)) adult, the right to initiate or maintain the action shall be transferred to the executor or administrator of the deceased, for the benefit of the surviving spouse, child or children, or other heirs set forth in chapter 4.20 RCW.