MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary B
By: Representatives Rushing, Gipson, Hale, Rogers (14th), Miles, Gibbs (72nd), Holloway
AN ACT TO AMEND SECTION 43-47-9, MISSISSIPPI CODE OF 1972, TO CREATE "NANCY'S LAW," WHICH AUTHORIZES THE DEPARTMENT OF HUMAN SERVICES TO RELOCATE OR PROVIDE NEW CARETAKERS FOR VULNERABLE PERSONS DURING ANY EVALUATION OR INVESTIGATION REGARDING ABUSE OF A VULNERABLE PERSON; TO BRING FORWARD SECTIONS 43-47-11, 43-47-13 AND 43-47-15, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE PROTECTIVE SERVICES PLANS OF VULNERABLE ADULTS WHO HAVE BEEN ABUSED OR EXPLOITED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-47-9, Mississippi Code of 1972, is amended as follows:
43-47-9. (1) (a)
Upon receipt of a report pursuant to Section 43-47-7 that a vulnerable person
is in need of protective services, the department shall initiate an
investigation and/or evaluation within forty-eight (48) hours if immediate
attention is needed, or within seventy-two (72) hours if the vulnerable person
is not in immediate danger, to determine whether the vulnerable person is in
need of protective services and what services are needed. The evaluation shall
include any necessary visits and interviews with the person, and if
appropriate, with the alleged perpetrator of the vulnerable person abuse and
with any person believed to have knowledge of the circumstances of the case. * * *
(b) If at any time during the evaluation and/or investigation, the department has probable cause to believe that the alleged perpetrator or caretaker is interfering or in any way causing harm or undue influence upon the vulnerable person, the department may, in its discretion, (i) upon notice to the caretaker, relocate the vulnerable person to a care facility and prohibit the alleged perpetrator from having access to the vulnerable person, or (ii) upon notice to the caretaker, remove the caretaker, replace such with a new caretaker that is chosen by the department, and prohibit the alleged perpetrator from having access to the vulnerable person. This paragraph (b) shall be known and may be cited as "Nancy's Law."
(2) The staff and physicians of local health departments, mental health clinics and other public or private agencies, including law enforcement agencies, shall cooperate fully with the department in the performance of its duties. These duties include immediate, in-residence evaluations and medical examinations and treatment where the department deems it necessary. However, upon receipt of a report of abuse, neglect or exploitation of a vulnerable person confined in a licensed hospital or licensed nursing home facility in the state, the department shall immediately refer this report to the proper authority at the State Department of Health for investigation under Section 43-47-37.
Upon a showing of probable cause that a vulnerable person has been abused, a court may authorize a qualified third party to make an evaluation to enter the residence of, and to examine the vulnerable person. Upon a showing of probable cause that a vulnerable person has been financially exploited, a court may authorize a qualified third party, also authorized by the department, to make an evaluation, and to gain access to the financial records of the vulnerable person.
(3) The department may contract with an agency or private physician for the purpose of providing immediate, accessible evaluations in the location that the department deems most appropriate.
SECTION 2. Section 43-47-11, Mississippi Code of 1972, is brought forward as follows:
43-47-11. (1) If, pursuant to an investigation instituted pursuant to Section 43-47-7, the department determines that a vulnerable person is in need of protective services, it shall prepare a plan of services, reviewing that plan with the vulnerable person and obtaining his consent in writing.
(2) When a caretaker of a vulnerable person who consents to the receipt of protective services refuses to allow the provision of such services to the vulnerable person, the department may petition the court for an order for injunctive relief enjoining the caretaker from interfering with the provision of protective services to the vulnerable person.
(3) If a vulnerable person does not consent to the receipt of protective services, or if he withdraws his consent, the services shall not be provided, except as indicated in Section 43-47-13.
SECTION 3. Section 43-47-13, Mississippi Code of 1972, is brought forward as follows:
43-47-13. (1) Every reasonable effort shall be made to secure the consent and participation of the vulnerable person in an evaluation and resolution of the need for protective services. If those efforts fail and if the department has reasonable cause to believe that a vulnerable person is being abused, neglected or exploited and lacks the capacity to consent to protective services, then the department may petition the court for an order for injunctive relief authorizing the provision of protective services. The petition must allege specific facts sufficient to show that the vulnerable person is in need of protective services and lacks the capacity to consent to them.
(2) The court shall set the case for hearing within fourteen (14) days after the filing of the petition. The vulnerable person must receive at least five (5) days' notice of the hearing. Where good cause is shown, the court may direct that a shorter notice be given. The vulnerable person has the right to be present and represented by counsel at the hearing. If the person, in the determination of the court, lacks the capacity to waive the right to counsel, then the court shall appoint a guardian ad litem. If the person is indigent, the cost of representation shall be borne by the department or by the court.
(3) If, at the hearing, the court finds by clear and convincing evidence that the vulnerable person is in need of protective services and lacks the capacity to consent to those services, the court may issue an order relative thereto. This order may include the designation of an individual, organization or agency to be responsible for the performing or obtaining of essential services on behalf of the vulnerable person or otherwise consenting to protective services in his behalf. The order may provide for protective services for a period not to exceed eighteen (18) months, at which time the vulnerable person's need for protective services may be reviewed by the department filing a petition requesting such review with the court. Should the court determine that the vulnerable person is in further need of protective services, it may order the provision of such protective services as provided herein.
(4) The court may appoint a guardian or conservator for the vulnerable person, but the court shall not appoint the department as a guardian of the vulnerable person. No vulnerable person may be committed to a mental health facility under this chapter. However, nothing contained herein shall prohibit the filing of petitions under other applicable provisions of the laws of this state.
SECTION 4. Section 43-47-15, Mississippi Code of 1972, is brought forward as follows:
43-47-15. (1) The department shall have the authority to provide immediate medical care, food, clothing, heat, shelter, supervision or other essential services in the absence of consent if it is determined that:
(a) The vulnerable person is in imminent danger of death or irreparable harm;
(b) Provision of emergency and/or protective services will alleviate the endangerment; and
(c) No other statutory or otherwise appropriate remedy is immediately available.
(2) Within forty-eight (48) hours, excluding Saturdays, Sundays and legal holidays, the department shall petition the court for an order for injunctive relief authorizing the provision of emergency services.
(3) Upon petition of the Commissioner of Public Welfare, the court may order the provision of emergency services to a vulnerable person after finding that there is reasonable cause to believe that:
(a) The vulnerable person lacks the capacity to consent and that he is in need of protective services;
(b) An emergency exists; and
(c) No other person authorized by law or order to give consent is available and willing to arrange for emergency services.
If there is reasonable cause to believe that the conditions listed above exist and no other custodian is available, then upon a written petition for emergency services filed by the department, the court may issue an order for injunctive relief for the department to provide emergency services to a vulnerable person.
(4) The petition for emergency services shall set forth the name, address and authority of the petitioners; the name, age and residence of the vulnerable person; the nature of the emergency; the proposed emergency services; the petitioner's reasonable belief as to the existence of the conditions set forth in subsection (1) of this section; and facts showing petitioner's attempts to obtain the vulnerable person's consent to the services.
(5) If the provision of emergency and/or protective services alleviates the imminent danger of death or irreparable harm and the department has reasonable cause to believe that the vulnerable person remains in need of protective services, the department shall proceed according to Sections 43-47-11 and 43-47-13.
(6) Where it is necessary to enter a premises without the vulnerable person's consent after obtaining a court order in compliance with subsection (3) of this section, the representative of the petitioner shall do so.
(7) No petitioner shall be held liable in any action brought by the vulnerable person if the petitioner acted in good faith.
SECTION 5. This act shall take effect and be in force from and after July 1, 2018.