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ADULT PROTECTIVE SERVICES ACT OF 1976, §§ 38-9-1 TO -11, ALA. CODE 1975 - NIX V. FRANKLIN COUNTY DEP'T OF HUMAN RESOURCES

Nix v. Franklin County Dep’t of Human Resources, [Ms. 1160494, Apr. 14, 2017] __ So. 3d __ (Ala. 2017). The Court unanimously (Main, J., and Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur) reverses a summary judgment entered by the Franklin Circuit Court in favor of the Franklin County Department of Human Resources which held that a 78-year-old gentleman was in need of protective services under the Adult Protective Services Act of 1976, §§ 38-9-1 to -11, Ala. Code 1975, such that he could be involuntarily confined to an assisted-living facility and his personal home sold to defray the costs of his stay at the assisted-living facility.

The Court highlights the expedited procedural requirements of § 38-9-6 concerning judicial determinations ordering protective placement or protective services of adults alleged to be in need:

“(a) An interested person may petition the court to order protective placement or other protective services for an adult in need of protective services. No protective placement or other protective services may be ordered unless there is a determination by the court that the person is unable to provide for his or her own protection from abuse, neglect, exploitation, sexual abuse, or emotional abuse. Upon a petition, setting forth the facts and name, age, sex, and residence of the person, the court of the circuit in which the person resides shall appoint a day, not more than 30 days from the filing of the petition, for a hearing on the petition. If, on the hearing of a petition, the person is not represented by counsel, the court shall appoint a guardian ad litem to represent him or her. A jury of six persons shall be impaneled for the hearing to serve as the trier of facts.”

A condition precedent to ordering protective placement is a determination that the person as to whom protective placement is being sought is an “adult in need of protective services.” The Act defines that term as follows:

“A person 18 years of age or old whose behavior indicates that he or she is mentally incapable of adequately caring for himself or herself and his or her interests without serious consequences to himself or herself or others, or who, because of physical or mental impairment, is unable to protect himself or herself from abuse, neglect, exploitation, sexual abuse, or emotional abuse by others, and who has no guardian, relative, or other appropriate person able, willing, and available to assume the kind and degree of protection and supervision required under the circumstances.”

§ 38-9-2(2), Ala. Code 1975.

Ms. *17. The Court highlights the key provisions of the Act:

The drafters of the Act were keenly aware of the tensions between ensuring the public health and protecting individual liberties and expressed an intent to strike a balance between the two. The statement of legislative findings and intent in the Act provides that “[t]his chapter is designed to establish [protective] services and assure their availability to all persons when in need of them, and to place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, exploitation and neglect.” § 38-9-3, Ala. Code 1975. In that regard, and in addition to the promise in § 38-9-6(a), Ala. Code 1975, of a speedy jury trial, the Act requires a court to “give preference in making a determination to the least drastic alternative considered to be proper under the circumstances, including a preference for noninstitutional care whenever possible.” § 38-9-6(c), Ala. Code 1975.

Further, the Act requires the court to obtain a “comprehensive evaluation of the adult in need of services,” id.; guarantees that “[n]o civil rights are relinquished as a result of any protective placement under this chapter,” § 38-9-6(i), Ala. Code 1975; and provides that, “[a]s far as is compatible with the mental and physical condition of the adult in need of services or claimed to be in need of services under this chapter, every reasonable effort shall be made to assure that no action is taken without the full and informed consent of the person.” § 38-9-6(j), Ala. Code 1975.

Ms. *18-19. Here, the gentleman alleged to be in need of protective services submitted his own testimony challenging DHR’s contentions. The Court found that this testimony established a genuine issue of material fact that precluded summary judgment. Accordingly, the Franklin Circuit Court’s entry of summary judgment was reversed, and the order authorizing the sale of the home was reversed, and the circuit court was directed to conduct the jury trial required by § 38-9-6 as soon as practicable.

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