CHAPTER 21-65
PROTECTION OF VULNERABLE ADULTS
21-65-1 Definitions.
21-65-2 Petition for relief from vulnerable adult abuse--Affidavit--Contents.
21-65-3 Ex parte temporary protection order.
21-65-4 Rights of vulnerable adult in action brought by substitute petitioner.
21-65-5 Forms for pro se actions.
21-65-6 Guardian ad litem.
21-65-7 Hearing on petition--Service of process.
21-65-8 Continuance of ex parte temporary protection order.
21-65-9 Temporary protection order effective until protection order served.
21-65-10 Persons who may make showing for protection order.
21-65-11 Relief available for vulnerable adult abuse.
21-65-12 Relief available for financial exploitation.
21-65-13 Limitations on protection order.
21-65-14 Term of protection order--Amendment or extension.
21-65-15 Attorney's fees and court costs.
21-65-16 Title to real property unaffected.
21-65-17 Delivery of protection order to law enforcement.
21-65-18 Right to relief unaffected by leaving home to avoid abuse.
21-65-19 Protection order--Violation--Penalty.
21-65-1. Definitions.
Terms used in this chapter mean:
(1) "Attorney-in-fact," an agent under a power of attorney pursuant to chapter 59-2 or an attorney-in-fact under a durable power of attorney pursuant to § 59-7-2.1 or chapter 59-12;
(2) "Caretaker," a related or nonrelated person who has the responsibility for the health or welfare of a vulnerable adult as a result of assuming the responsibility voluntarily, by contract, by receipt of payment for care, or by order of the court;
(3) "Conservator," as defined in subdivision 29A-5-102(2);
(4) "Vulnerable adult abuse," any of the following:
(a) Physical abuse as defined in subdivision 22-46-1(7);
(b) Emotional and psychological abuse as defined in subdivision 22-46-1(4);
(c) Neglect as defined in subdivision 22-46-1(6) and § 22-46-1.1; or
(d) Financial exploitation;
(5) "Family or household member," a spouse, a person cohabiting with the vulnerable adult, a parent, or a person related to the vulnerable adult by consanguinity or affinity, but does not include children of the vulnerable adult who are less than eighteen years of age;
(6) "Fiduciary," a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of a vulnerable adult and to act in good faith and with fairness. The term, fiduciary, includes an attorney in fact, a guardian, or a conservator;
(7) "Financial exploitation," exploitation as defined in subdivision 22-46-1(5) when committed by a person who stands in a position of trust or confidence;
(8) "Guardian," as defined in subdivision 29A-5-102(4);
(9) "Peace officer," as defined in subdivision 23A-45-9(13);
(10) "Petitioner," a vulnerable adult who files a petition pursuant to this chapter, and includes a substitute petitioner who files a petition on behalf of a vulnerable adult pursuant to this chapter;
(11) "Present danger of vulnerable adult abuse," a situation in which the respondent has recently threatened the vulnerable adult with initial or additional abuse or neglect or the potential for misappropriation, misuse, or removal of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult combined with reasonable grounds to believe that abuse, neglect, or exploitation is likely to occur;
(12) "Pro se," a person proceeding on the person's own behalf without legal representation;
(13) "Stands in a position of trust or confidence," the person has any of the following relationships relative to the vulnerable adult:
(a) Is a parent, spouse, adult child, or other relative by consanguinity or affinity of the vulnerable adult;
(b) Is a caretaker for the vulnerable adult; or
(c) Is a person who is in a confidential relationship with the vulnerable adult. A confidential relationship does not include a legal, fiduciary, or ordinary commercial or transactional relationship the vulnerable adult may have with a bank incorporated pursuant to the provisions of any state or federal law; any savings and loan association or savings bank incorporated pursuant to the provisions of any state or federal law; any credit union organized pursuant to the provisions of any state or federal law; any attorney licensed to practice law in this state; or any agent, agency, or company regulated under title 58 or chapter 36-21A;
(14) "Substitute petitioner," a family or household member, guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable adult, or other interested person who files a petition pursuant to this chapter; and
(15) "Vulnerable adult," a person sixty-five years of age or older who is unable to protect himself or herself from abuse as a result of age or a mental or physical condition, or an adult with a disability as defined in § 22-46-1.
Source: SL 2016, ch 120, § 3; SL 2020, ch 214, § 46.
21-65-2. Petition for relief from vulnerable adult abuse--Affidavit--Contents.
A vulnerable adult or a substitute petitioner may seek relief from vulnerable adult abuse by filing a petition and affidavit in the circuit court or in a magistrate court with a magistrate judge presiding. Venue is where either party resides. The petition and affidavit shall include all of the following:
(1) The name of the vulnerable adult and the name and address of the vulnerable adult's attorney, if any. If the vulnerable adult is proceeding pro se, the petition shall include a mailing address for the vulnerable adult;
(2) The name of the substitute petitioner if the petition is being filed on behalf of a vulnerable adult, and the name and address of the attorney of the substitute petitioner. If the substitute petitioner is proceeding pro se, the petition shall include a mailing address for the substitute petitioner;
(3) The name and address, if known, of the respondent;
(4) The relationship of the vulnerable adult to the respondent;
(5) The nature of the alleged vulnerable adult abuse, including specific facts and circumstances of the abuse;
(6) The name and age of any other individual whose welfare may be affected; and
(7) The desired relief, including a request for temporary or emergency orders. A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.
If a petition for a protection order alleging the existence of vulnerable adult abuse is filed with the court pursuant to this section and if the court, upon an initial review, determines that the allegations do not support the existence of vulnerable adult abuse, but that the allegations do support the existence of stalking or physical injury pursuant to § 22-19A-8 or domestic abuse pursuant to § 25-10-3, the court may hear and act upon the petition as though the petition had been filed under § 22-19A-8 or § 25-10-3 and subject to the provisions of the respective chapters.
Source: SL 2016, ch 120, § 4.
21-65-3. Ex parte temporary protection order.
If an affidavit filed with a petition under § 21-65-2 alleges that the vulnerable adult is in present danger of vulnerable adult abuse before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and grant relief as the court deems proper, including an order:
(1) Restraining any person from committing vulnerable adult abuse; and
(2) Excluding any person from the dwelling or the residence of the vulnerable adult.
Source: SL 2016, ch 120, § 5.
21-65-4. Rights of vulnerable adult in action brought by substitute petitioner.
If a substitute petitioner files a petition pursuant to § 21-65-2 on behalf of a vulnerable adult, the vulnerable adult retains the right to all of the following:
(1) To contact and retain counsel;
(2) To have access to personal records;
(3) To file objections to the protection order;
(4) To request a hearing on the petition; and
(5) To present evidence and cross-examine witnesses at the hearing.
Source: SL 2016, ch 120, § 6.
21-65-5. Forms for pro se actions.
By July 1, 2016, the Unified Judicial System shall prescribe standard forms to be used by a vulnerable adult or substitute petitioner seeking a protection order by proceeding pro se in an action pursuant to this chapter.
The clerk of the circuit court shall furnish the required forms to any person seeking a protection order through pro se proceedings pursuant to this chapter.
Source: SL 2016, ch 120, § 7.
21-65-6. Guardian ad litem.
Pursuant to § 15-6-17(c), the court may on its own motion or on the motion of a party appoint a guardian ad litem for a vulnerable adult if justice requires. The vulnerable adult's attorney may not also serve as the guardian ad litem.
Source: SL 2016, ch 120, § 8.
21-65-7. Hearing on petition--Service of process.
Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless the court grants a continuance for good cause. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.
Upon application of a party, the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers.
The court shall exercise its discretion in a manner that protects the vulnerable adult from traumatic confrontation with the respondent.
Hearings shall be recorded.
Upon application, notice to all parties, and hearing, the court may modify the terms of an existing protection order.
Source: SL 2016, ch 120, § 9.
21-65-8. Continuance of ex parte temporary protection order.
An ex parte temporary protection order is effective for a period of thirty days except as provided in § 21-65-9 unless the court grants a continuance for good cause. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:
(1) The parties stipulate to an additional continuance; or
(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.
If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.
Source: SL 2016, ch 120, § 10.
21-65-9. Temporary protection order effective until protection order served.
If an ex parte temporary protection order is in effect and the court issues a protection order pursuant to this chapter, the ex parte temporary protection order remains effective until the order issued pursuant to this chapter is served on the respondent.
Source: SL 2016, ch 120, § 11.
21-65-10. Persons who may make showing for protection order.
The showing required pursuant to § 21-65-11 may be made by any of the following:
(1) The vulnerable adult;
(2) The guardian, conservator, attorney-in-fact, or guardian ad litem of the vulnerable adult;
(3) A witness to the vulnerable adult abuse; or
(4) An adult protective services worker who has conducted an investigation.
Source: SL 2016, ch 120, § 12; SL 2020, ch 214, § 47.
21-65-11. Relief available for vulnerable adult abuse.
Upon a finding by a preponderance of the evidence that vulnerable adult abuse has occurred, the court may order any of the following:
(1) That the respondent be required to move from the residence of the vulnerable adult if both the vulnerable adult and the respondent are titleholders or contract holders of record of the real property, are named as tenants in the rental agreement concerning the use and occupancy of the dwelling unit, are living in the same residence, or are married to each other;
(2) That the respondent provide suitable alternative housing for the vulnerable adult;
(3) That a peace officer accompany the party who is leaving or has left the party's residence to remove essential personal effects of the party;
(4) That the respondent be restrained from vulnerable adult abuse;
(5) That the respondent be restrained from entering or attempting to enter on any premises when it appears to the court that restraint is necessary to prevent the respondent from committing vulnerable adult abuse;
(6) That the respondent be restrained from exercising any powers on behalf of the vulnerable adult through a court-appointed guardian, conservator, or guardian ad litem, an attorney-in-fact, or another third party; and
(7) In addition to the relief provided in § 21-65-12, other relief that the court considers necessary to provide for the safety and welfare of the vulnerable adult.
Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.
Source: SL 2016, ch 120, § 13; SL 2020, ch 214, § 48.
21-65-12. Relief available for financial exploitation.
If the court finds that the vulnerable adult has been the victim of financial exploitation, the court may order the relief the court considers necessary to prevent or remedy the financial exploitation, including any of the following:
(1) Directing the respondent to refrain from exercising control over the funds, benefits, property, resources, belongings, or assets of the vulnerable adult;
(2) Requiring the respondent to return custody or control of the funds, benefits, property, resources, belongings, or assets to the vulnerable adult;
(3) Requiring the respondent to follow the instructions of the guardian, conservator, or attorney-in-fact of the vulnerable adult; and
(4) Prohibiting the respondent from transferring the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to any person other than the vulnerable adult.
Source: SL 2016, ch 120, § 14; SL 2020, ch 214, § 49.
21-65-13. Limitations on protection order.
The court may not use an order issued pursuant to this chapter to do any of the following:
(1) To allow any person other than the vulnerable adult to assume responsibility for the funds, benefits, property, resources, belongings, or assets of the vulnerable adult; or
(2) For relief that is more appropriately obtained in a proceeding filed pursuant to chapter 29A-5 including giving control and management of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to a conservator for any purpose other than the relief granted pursuant to § 21-65-12.
Source: SL 2016, ch 120, § 15.
21-65-14. Term of protection order--Amendment or extension.
A protection order shall be for a fixed period of time not to exceed five years. The court may amend or extend an order at any time upon a petition filed by either party and after notice and a hearing. The court may extend an order if the court, after a hearing at which the respondent has the opportunity to be heard, finds that the respondent continues to pose a threat to the safety of the vulnerable adult, a person residing with the vulnerable adult, or a member of the vulnerable adult's immediate family, or continues to present a risk of financial exploitation of the vulnerable adult. The number of extensions that the court may grant is not limited.
Source: SL 2016, ch 120, § 16.
21-65-15. Attorney's fees and court costs.
The court may order that the respondent pay the attorney's fees and court costs of the vulnerable adult and substitute petitioner.
Source: SL 2016, ch 120, § 17.
21-65-16. Title to real property unaffected.
An order pursuant to this chapter does not affect title to real property.
Source: SL 2016, ch 120, § 18.
21-65-17. Delivery of protection order to law enforcement.
The petitioner may deliver an order within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the vulnerable adult. Each law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to this chapter.
Source: SL 2016, ch 120, § 19.
21-65-18. Right to relief unaffected by leaving home to avoid abuse.
The petitioner's right to relief under this chapter is not affected by the vulnerable adult leaving home to avoid vulnerable adult abuse.
Source: SL 2016, ch 120, § 20.
21-65-19. Protection order--Violation--Penalty.
If a temporary protection order or a protection order is granted pursuant to this chapter and the respondent or person restrained knows of the order, a violation of the order is a Class 1 misdemeanor.
If the acts constituting a violation of this section also constitute an assault, as defined in § 22-18-1, the violation of this section is a Class 6 felony.
If a respondent or person restrained has been convicted of, or entered a plea of guilty to, two or more prior violations of this section, § 22-19A-16, or § 25-10-13, or the comparable laws of any other state, within ten years of committing the current offense, and the factual basis for the current offense occurred after the date of the second conviction or guilty plea, the respondent or person restrained is guilty of a Class 6 felony for a third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.
Any proceeding under this chapter is in addition to other civil or criminal remedies.
Source: SL 2020, ch 76, § 1; SL 2021, ch 90, § 1.
