Delaware Code Title 31 Sec. 3908 – Emergency order for protective services
(a) Upon petition by the Public Guardian or adult protective services unit of the Department, the Court may issue an order authorizing the provision of protective services on an emergency basis to an adult person after finding on the record, based on a preponderance of the evidence that:
(1) The person is impaired or incapacitated, as defined in § 3902(2) or (19) of this title;
(2) An emergency exists, as defined in § 3902 of this title;
(3) The person lacks the capacity to consent to receive protective services;
(4) No person authorized by law or Court order to give consent for the person is available and willing to consent to emergency services; and
(5) There are compelling reasons for ordering services.
Terms Used In Delaware Code Title 31 Sec. 3908
- adult person: means a person of the age of 18 years or older. See Delaware Code Title 1 Sec. 302
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Court: means the Court of Chancery of the State. See Delaware Code Title 31 Sec. 3902
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Department: means the Department of Health and Social Services of the State. See Delaware Code Title 31 Sec. 3902
- Emergency: means that a person is living in conditions which present a substantial risk of serious harm and includes, but is not limited to, problems which cannot be managed by a person who is impaired, such as insufficient food supply, inadequate shelter, threatened or actual abuse or utility shut-off. See Delaware Code Title 31 Sec. 3902
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Interested person: means any adult relative or friend of a person who is impaired; an official or representative of the protective services agency or of any public or nonpublic private agency; or any corporation, board, organization or person designated by the Court to act in the interest of the person who is impaired. See Delaware Code Title 31 Sec. 3902
- Person who is incapacitated: means a person for whom a guardian of person or property, or both, shall be appointed, under § 3901 of Title 12. See Delaware Code Title 31 Sec. 3902
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- State: means the State of Delaware; and when applied to different parts of the United States, it includes the District of Columbia and the several territories and possessions of the United States. See Delaware Code Title 1 Sec. 302
(b) In an emergency order, the Court is to consider:
(1) Only such protective services as are necessary to remove the conditions creating the emergency shall be ordered; and the Court shall specifically designate the approved services in its order.
(2) Protective services authorized by an emergency order shall not include hospitalization or change of residence unless the Court specifically finds such action is necessary and gives specific approval for such action in its order.
(3) Protective services may be provided through an emergency order for a maximum of 90 days upon a showing to the Court that continuation of the original order is necessary to remove the emergency. During this period the person who is impaired may petition the Court to have the emergency order removed.
(4) In its order, the Court shall appoint the petitioner or another interested person other than the service provider as temporary guardian of the person of the person who is incapacitated. The temporary guardian shall assume responsibility for the person’s welfare and be granted therein authority to give consent for the person for the approved protective services until the expiration of the order.
(5) The issuance of an emergency order and the appointment of a temporary guardian shall not deprive the person of any rights except to the extent validly provided for in the order of appointment.
(6) To implement an emergency order, the Court may authorize forcible entry of the premises of the person for the purpose of rendering protective services or transporting the person to another location for such services. Such forcible entry may be authorized only after a showing to the Court that attempts to gain voluntary access to the premises have failed and forcible entry is necessary. The order of the Court shall include an order to the appropriate police department authorizing forcible entry.
(c) The petition for an emergency order shall set forth to the best of the petitioner’s knowledge and belief:
(1) The name, address and interest of the petitioner;
(2) The name, address and approximate age of the person in need of protective services;
(3) If the information can be obtained and if any exist, the names and addresses of the spouse and next of kin of the person;
(4) The petitioner’s attempts to contact the persons named in paragraph (c)(3) of this section and their responses to the situation;
(5) The petitioner’s reasonable belief, together with facts supportive thereof, as to the existence of the facts stated in paragraphs (a)(1) through (4) of this section;
(6) Facts showing petitioner’s attempts to obtain the person’s consent to the services and the outcomes of such attempts; and
(7) The proposed protection services.
(d) Actual notice of the filing of such petition, and other relevant information including the factual basis of the belief that emergency services are needed and a description of the exact services to be rendered, shall be given to the person, and at the Court’s discretion, to the person’s spouse, or if none, to the person’s adult children, next of kin or guardian if any. Notice to any parties other than the person in need of services may be waived by the Court if the petition avers with specificity that such notice would be detrimental to the person who is impaired. Such notice shall be given in language reasonably understandable by their intended recipients at least 24 hours prior to the hearing for emergency intervention, and longer if possible.
(e) Upon the filing of a petition for an emergency order for protective services, the Court shall hold a hearing within 7 days or immediately, if necessary, pursuant to § 3909 of this title.
(f) If the person continues to need protective services after the order and renewal provided for in paragraph (b)(3) of this section has expired, such services can only be rendered pursuant to the appointment of a guardian.
(g) The petitioner or other witness supplying information shall be immune from civil liability for damages as a result of filing the petition if the petitioner acted in good faith and believed the person to be in need of such assistance.
(h) The authority of the police departments of this State to transfer a person to a mental health facility in cases of a psychiatric emergency are not affected by this chapter.
(i) Whenever the Court finds, based upon a verified petition, affidavit or other evidentiary materials, that probable cause exists to believe that: (1) a person is impaired or incapacitated, as defined in § 3902(2) or (19) of this title; (2) that an emergency exists, as defined in § 3902 of this title; (3) that the emergency threatens serious harm to such person which harm may occur before a hearing on the petition for an emergency order may be held; (4) that the person is located in the building or premises described; and (5) that entry or access to said building or premises is being denied, the Court may issue an order for entry. The order for entry shall be signed by the Court, and shall contain the address of the building or premises where the person is located and the name of the person reported to be in need of protective services. The order for entry shall command that entry to the building or premises where the person is located be permitted for the purpose of seeing or interviewing, assessing and counseling the person named in the order. The order for entry shall permit entry on a day certain, which shall be set forth in the order. Nothing contained in this subsection shall in any way be construed to limit or restrict entry where the consent of the owner, lessor or lawful occupant is obtained. Whenever a member of the Court is unavailable, any judge of the Superior Court may exercise the powers conferred by this subsection.
63 Del. Laws, c. 384, § ?1; 66 Del. Laws, c. 49, §§ ?3, 4; 67 Del. Laws, c. 185, § ?1; 70 Del. Laws, c. 186, § ?1; 78 Del. Laws, c. 179, § ?377; 79 Del. Laws, c. 438, § ?1; 81 Del. Laws, c. 343, § 1;