Adult protection laws recently changed
Law changes impacting the Adult Protective Services (APS) took effect recently. In addition to notable law changes such as changing the definition of exploitation and adding to the list of mandatory reporters addressed in a recent OJFSDA Update, other law changes include:
- Changing the definition of “neglect” to include “abandonment”. Under continuing law, “neglect” means the failure of an older adult to provide for himself or herself the goods or services necessary to avoid physical harm, mental anguish, or mental illness or the failure of a caretaker to provide the goods or services. The act adds abandonment as another form of neglect and defines “abandonment” to mean desertion of an older adult by a caretaker without having made any provisions for the transfer of the older adult’s care. It clarifies that to constitute abandonment, the abandonment must involve the older adult’s primary caretaker. A “caretaker” is the person assuming responsibility for the care of an older adult on a voluntary basis, by contract, through receipt of payment for care, as a result of a family relationship, or by court order.
- Authorizing county prosecutors, in addition to the CDJFS, to file petitions. Specifically, county prosecutors can now file directly for:
- An order authorizing protective services for an older adult who the CDJFS determines needs protective services as a result of exploitation.
- A temporary restraining order to prevent the interference with services if an older adult has consented to protective services but another person refuses to allow them.
- An order authorizing emergency protective services and a renewal of such an order upon a showing that a continuation of the order is necessary to remove the emergency.
- Ability to redact specific information before releasing reports, when required. Law retains the requirement that information contained in a report be made available, on request, to the older adult who is the subject of the report and to legal counsel for the older adult. Being added is a provision stating that if the CDJFS determines that there is a risk of harm to a person who makes a report or to the older adult who is the subject of the report, it may redact the name and identifying information related to the person who made the report.
- Mandatory referral of suspected criminal exploitation to law enforcement, and the ability to file temporary restraining orders. The act requires a CDJFS to notify a local law enforcement agency if it has reasonable cause to believe that the subject of a report of abuse, neglect, or exploitation of an older adult or of an investigation of such a report, is being or has been criminally exploited. During the local law enforcement agency’s investigation of criminal exploitation, the county prosecutor may file a petition in court for a temporary restraining order against any person, including the alleged victim, who denies or obstructs access to the older adult’s residence. The court must issue the temporary restraining order if it finds there is reasonable cause to believe that the older adult is being or has been abused, neglected, or exploited and access to the older adult’s residence has been denied or obstructed. The act establishes that such a finding by the court is prima facie evidence that immediate and irreparable injury, loss, or damage will result, so no notice is required. After obtaining the temporary restraining order, a representative of the law enforcement agency may be accompanied to the residence by a peace officer.
These law changes represent a continued interest in the APS system, coming not only from ODJFS but also from cross-system groups such as the Attorney General’s Elder Abuse Commission, the Ohio Coalition for Adult Protective Services, and the Ohio APS Advisory Council. These entities have representatives from state departments (ODJFS, Medicaid, Mental Health & Addiction Services, Aging, and Developmental Disabilities) and stakeholder groups such as OJFSDA and the associations representing the area agencies on aging, county prosecutors, probate judges, and more. While increased focus on the program is a welcome evolution in recent years, OJFSDA continues to reiterate the need for increased state support to fund a corresponding capacity for the APS program in all Ohio counties.