Protecting Vulnerable Adults
Posted Friday, January 31, 2014 by John S. Palmer
Washington has adopted a statutory scheme designed to protect incapacitated persons and other vulnerable adults from abuse and neglect. Formally known as the Abuse of Vulnerable Adults Act (and often referred to as the “Vulnerable Adult Protection Act”), it requires doctors, social workers, and other health care providers to report suspected abuse or neglect. It also provides a mechanism for those with an interest in the vulnerable adult’s affairs to seek an order of protection.
The Act defines “vulnerable adult” to include a person who is:
- Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself”;
- Found to be incapacitated under Washington’s guardianship statute;
- Developmentally disabled;
- Admitted to any nursing home, assisted living facility, adult family home, or other facility licensed by the Washington Department of Social and Health Services (DSHS);
- Receiving services from home health, hospice, or other licensed in-home services agencies;
- Receiving services from an individual provider licensed by DSHS to provide in-home services;
- Who self-directs his or her own care and receives services from a personal aide under chapter 74.39 RCW.
The Act also allows a vulnerable adult or an “interested person” acting on his or her behalf to seek restraining orders to stop the abuse, financial exploitation, or neglect of the vulnerable adult. “Interested person” is defined as “a person who demonstrates to the court’s satisfaction that the person is interested in the welfare of the vulnerable adult, that the person has a good faith belief that the court’s intervention is necessary, and that the vulnerable adult is unable, due to incapacity, undue influence, or duress at the time the petition is filed, to protect his or her own interests.”
In response to such a petition, a court may enter an order restraining the respondent from committing acts of abuse or neglect; excluding the respondent from the vulnerable adult’s residence or from having any contact with the vulnerable adult; and requiring the respondent to account for the disposition of the vulnerable adult’s income or other resources. The court may also temporarily prohibit transfers of the vulnerable adult’s assets while things are sorted out, and order the respondent to pay the petitioner’s legal fees.
If the petition is brought by an interested person other than the vulnerable adult’s legal guardian, and the vulnerable adult advises the court 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” or the court may allow additional evidence to be submitted “to determine whether the vulnerable adult is unable, due to incapacity, undue influence, or duress, to protect his or her person or estate in connection with the issues raised in the petition or order.”
If after taking additional evidence 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 he or she continues to object to the protection order, the court must dismiss the order or may modify the order if agreed to by the vulnerable adult. If the court determines that the vulnerable adult is not capable of protecting his or her person or estate, the court may issue a protection order as it deems necessary for the protection of the vulnerable adult.
In a decision handed down on January 14, 2014, the Washington Court of Appeals held that when an alleged incapacitated person opposes the petition, the petitioner must prove the allegations in his or her petition by clear, cogent and convincing evidence, which is a higher burden of proof than the “preponderance of the evidence” standard for most civil matters. In reaching this decision, the court said that petitions brought under the Abuse of Vulnerable Adults Act are similar to guardianship petitions, in that they both can have a profound effect on the vulnerable adult’s liberty and autonomy:
Both the Act and the guardianship statutes are concerned with the personal and financial health of vulnerable or incapacitated adults. Additionally, just as the legislature recognized that imposing restrictions on the incapacitated person in a contested guardianship case restricts an individual’s liberty and autonomy interests, so too does granting a protection order against the vulnerable adult’s wishes.
The protection order may prevent the vulnerable adult from freely interacting with the person against whom the protection order is granted. It also may prevent the vulnerable adult from giving gifts or providing support to the restrained person or inviting the restrained person onto her property. Thus, because a contested vulnerable adult protection order case implicates the vulnerable adult’s liberty and autonomy interests like a guardianship does, the standard of proof for a vulnerable adult protection order contested by the alleged vulnerable adult is clear, cogent, and convincing evidence, as it is with a guardianship.
If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.