SB274

By Senators Smitherman, Singleton, Dunn, Coleman-Madison and Beasley

ENROLLED, An Act,

Relating to elder abuse; to amend Section 15-10-3, Code of Alabama 1975; to establish the Elder Abuse Protection Order and Enforcement Act; to provide for the issuance of elder abuse protection orders; to define terms; to authorize certain individuals in addition to the victim to petition for an elder abuse protection order; to provide penalties for violating an elder abuse protection order; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Sections 1 to 11, inclusive, shall be known and may be cited as the Elder Abuse Protection Order and Enforcement Act.

Section 2. Sections 1 to 11, inclusive, shall be liberally construed and applied to promote all of the following purposes:

(1) To maximize protection of victims of elder abuse.

(2) To create a flexible and expeditious method of obtaining a protection order against an individual who has committed elder abuse.

(3) To expand the ability of law enforcement officers to assist victims, to enforce the law effectively in cases of elder abuse, and to prevent further incidents of abuse.

Section 3. For purposes of Sections 1 to 11, inclusive, the following terms shall have the following meanings:

(1) CAREGIVER. The term as defined in Section 13A-6-191, Code of Alabama 1975.

(2) ELDER ABUSE. The commission of any of the following acts or the intent to commit any of the following acts against an elderly person:

a. Abuse, as defined in Section 38-9-2, Code of Alabama 1975.

b. Arson, as defined in Sections 13A-7-40 to 13A-7-43, inclusive, Code of Alabama 1975.

c. Assault, as defined in Sections 13A-6-20 to 13A-6-22, inclusive, Code of Alabama 1975.

d. Criminal coercion, as defined in Section 13A-6-25 Code of Alabama 1975.

e. Criminal trespass as defined in Sections 13A-7-2 to 13A-7-4.1, inclusive, Code of Alabama 1975.

f. Emotional abuse, as defined in Section 13A-6-191, Code of Alabama 1975.

g. Financial exploitation, as defined in Sections 13A-6-191 and 8-6-171, Code of Alabama 1975.

h. Harassment, as defined in Section 13A-11-8, Code of Alabama 1975.

i. Kidnapping, as defined in Sections 13A-6-43 and 13A-6-44, Code of Alabama 1975.

j. Menacing, as defined in Section 13A-6-23, Code of Alabama 1975.

k. Reckless endangerment, as defined in Section 13A-6-24, Code of Alabama 1975.

l. Sexual abuse, as defined as any of the acts in Sections 13A-6-60 to 13A-6-68, Code of Alabama 1975.

m. Stalking, as defined in Sections 13A-6-90 to 13A-6-91.1, inclusive, Code of Alabama 1975.

n. Theft, as defined in Sections 13A-8-2 to 13A-8-5, inclusive, Code of Alabama 1975.

o. Unlawful imprisonment, as defined in Sections 13A-6-41 and 13A-6-42, Code of Alabama 1975.

(3) ELDER ABUSE PROTECTION ORDER or PROTECTION ORDER. An order issued pursuant to Sections 1 to 11, inclusive, including all of the following:

a. A restraining order, injunctive order, or order of release from custody issued by a circuit, district, municipal, or probate court that seeks to protect an elderly person.

b. An order issued by a circuit, district, or municipal court that places conditions on the pre-trial release of a defendant in a criminal case, which may include provisions of bail pursuant to Section 15-13-190, Code of Alabama 1975, that seeks to protect an elderly person.

(4) ELDERLY PERSON. A person 60 years of age or older.

(5) PLAINTIFF. An elderly person in need of protection from elder abuse.

(6) THREAT. Any word or action, expressed or implied, made to cause a plaintiff to fear for his or her safety or for the safety of another person.

(7) VIOLATION. The knowing commission of any act or conduct prohibited by an elder abuse protection order or any willful failure to abide by its terms.

Section 4. (a) The following courts shall have jurisdiction to issue elder abuse protection orders under this act:

(1) Circuit courts.

(2) A special circuit court judge appointed pursuant to Section 12-1-14 or 12-1-14.1, Code of Alabama 1975.

(3) A district court judge designated by a written standing order from the presiding circuit court judge.

(b) An elder abuse protection order may be requested in any pending civil or domestic relations action, as an independent civil action, or in connection with the preliminary, final, or post-judgment relief in a civil action.

(c) A petition for an elder abuse protection order may be filed in any of the following locations:

(1) Where the plaintiff or defendant resides.

(2) Where the plaintiff is temporarily located if he or she has left his or her residence to avoid further abuse.

(3) Where the abuse occurred.

(d) There is no minimum period of residence for the plaintiff in the State of Alabama or in the county in which a case is filed.

(e) An elder abuse protection order shall be a status order that is specifically designed to protect the elderly person, and in personam jurisdiction over the defendant shall not be required in order to issue an ex parte or final order under this act.

Section 5. (a) The plaintiff's right to relief under this act shall not be affected by his or her leaving the residence or household to avoid further abuse.

(b) The remedies and procedures provided in this act are in addition to and no in lieu of any other judicial protection actions that may be initiated by the victim in any other forum.

(c) Any elder abuse protection order issued in this state shall be effective and enforceable in every county and jurisdiction in this state.

(d) An order issued by a court of another state, tribal nation, or territory that provides the relief or protection similar to an elder abuse protection order under Sections 1 to 11, inclusive, shall be accorded full faith and credit and enforced as if it were an order of this state.

Section 6. (a) If a plaintiff lacks the physical or mental capacity to seek protection for himself or herself, the following may file a sworn petition for relief on behalf of the plaintiff:

(1) A court appointed guardian. The petition must include a copy of the court order appointing the petitioner as the plaintiff's guardian.

(2) A court appointed conservator. The petition must include a copy of the court order appointing the petitioner as the plaintiff's conservator.

(3) A temporary guardian appointed pursuant to Section 26-2A-107, Code of Alabama 1975. The petition must include a copy of the court order appointing the petitioner as the plaintiff's temporary guardian.

(4) An agent, co-agent, or successor agent appointed under the plaintiff's validly executed power of attorney who acts within the authority of the power of attorney. The petition shall include a copy of the power of attorney.

(5) A health care proxy appointed under the plaintiff's validly executed Advance Directive for Health Care, or similar document, who acts within the authority of the designation. The petition shall include a copy of the Advance Directive for Health Care or similar document.

(6) An interested person who has the authority to petition for protective placement or other protective services under Section 38-9-6, Code of Alabama 1975.

(b) A sworn petition shall allege the incidents of abuse and the specific facts and circumstances that form the basis upon which relief is sought.

(c) Standardized petitions for actions pursuant to this act shall be made available through the circuit clerk's offices throughout the state. A circuit clerk shall not be required to provide assistance to individuals in completing the forms or in presenting the petitioner's case to the court.

(d) The elderly person for whom the petition is filed must be served with the petition pursuant to the Alabama Rules of Civil Procedure.

(e) The court may not assess court costs or other fees for the filing or service of a petition or the issuance of a witness subpoena under this act against a petitioner or plaintiff. Costs and fees may be assessed against the defendant at the discretion of the court.

Section 7. (a) The court shall hold a hearing after the filing of a petition under this act upon the request of the defendant or within 10 days of the perfection of service. A final hearing shall be set at which the standard of proof shall be a preponderance of the evidence. If the defendant has not been served, a final hearing may be continued to allow for service to be perfected.

(b) The court may enter such temporary ex parte protection orders as it deems necessary to protect the plaintiff from abuse. The court shall grant or deny a petition for a temporary ex parte protection order filed under this act within three business days of the filing of the petition. Any granted temporary ex parte protection order shall be effective until the final hearing date.

(c) If a final hearing under subsection (a) is continued, the court may make or extend temporary ex parte protection orders under subsection (b) as it deems reasonably necessary.

Section 8. (a) If it appears from a petition for an elder abuse protection order or a petition to modify an elder abuse protection order that elder abuse has occurred or a modification is warranted, the court may do either of the following:

(1) Without notice or hearing, immediately issue an ex parte elder abuse protection order or modify an ex parte elder abuse protection order as it deems necessary.

(2) After providing notice as required by the Alabama Rules of Civil Procedure, issue an elder abuse protection order or modify an elder abuse protection order after a hearing whether or not the defendant appears.

(b) Based upon a risk of imminent potential harm to the plaintiff, a court may grant one or more of the following ex parte forms of relief without prior notice to the defendant or a hearing:

(1) Enjoin the defendant from threatening to commit or committing acts of elder abuse against the plaintiff and any other individual designated by the court.

(2) Restrain and enjoin the defendant from harassing, stalking, annoying, telephoning, contacting, or otherwise communicating, either directly or indirectly, with the plaintiff or threatening or engaging in conduct that would place the plaintiff or any other individual designated by the court in reasonable fear of bodily injury.

(3) Order the defendant to stay away from the plaintiff's residence, place of employment, or any specified place frequented by the plaintiff that the defendant has no legitimate reason to frequent.

(4) Remove and exclude the defendant from the residence of the plaintiff, regardless of ownership of the residence.

(5) Order possession and use of an automobile or other essential personal effects, regardless of ownership, and direct the appropriate law enforcement officer to accompany the plaintiff to the residence of the plaintiff or other specified locations as necessary to protect the plaintiff from abuse.

(6) Prohibit the defendant from transferring, concealing, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties or in which the plaintiff had an ownership interest within the last 12 months.

(7) Prohibit the defendant from transferring the funds, benefits, property, resources, belongings, or assets of the plaintiff to any person other than the plaintiff.

(8) Direct the defendant to refrain from exercising control over the funds, benefits, property, resources, belongings, or assets of the plaintiff.

(9) Require the defendant to provide an accounting of the disposition of the plaintiff's income and other resources, and of the plaintiff's debts and expenses.

(10) Restrain the defendant from exercising any powers the defendant has been granted as the plaintiff's agent under power of attorney.

(11) Require the defendant to comply with the instructions of the plaintiff's guardian, conservator, or agent under power of attorney.

(12) Order other relief as it deems necessary to provide for the safety and welfare of the plaintiff and any individual designated by the court.

(c) The court may grant one or more of the following forms of relief in a final order after notice and hearing:

(1) Grant the relief available in subsection (b).

(2) Require the defendant to return custody or control of the funds, benefits, property, resources, belongings, or assets to the plaintiff.

(3) Order restitution.

(4) Prohibit the defendant from possessing a firearm or other weapon specified by the court, except when the weapon is necessary for employment as a law enforcement officer or military personnel.

(5) Order the defendant to pay attorneys' fees and court costs.

(d) Any temporary ex parte protection order issued pursuant to this act shall remain in effect until the final order is entered.

(e) Any final elder abuse protection order shall be of permanent duration unless otherwise specified by the court.

(f) An elder abuse protection order may not affect in any manner title to real property.

Section 9. (a) A copy of an elder abuse protection order shall be issued to the plaintiff, the defendant, and the law enforcement officials with jurisdiction to enforce the protection order.

(b) If the defendant is appointed as the plaintiff's guardian or conservator, a copy of any protection order shall be issued to the court that made the appointment.

(c) Ex parte and final elder abuse protection orders shall be in a format as provided by the Administrative Office of Courts. If a court wishes to provide additional information in these standardized court orders, the court may attach additional pages containing this additional information.

Section 10. (a) A violation of an elder abuse protection order is a Class A misdemeanor, which shall be punishable as provided in law.

(b) A second conviction for a violation of an elder abuse protection order, in addition to any other penalty or fine, shall be punishable by a minimum of 30 days imprisonment, which may not be suspended. A third or subsequent conviction, in addition to any other penalties or fines, shall be punishable by a minimum sentence of 120 days imprisonment, which may not be suspended.

Section 11. A law enforcement officer may arrest any person for a violation of Sections 1 to 11, inclusive, if the officer has probable cause to believe that the person has violated any provision of a valid elder abuse protection order, whether temporary or permanent. The presentation of an elder abuse protection order constitutes probable cause for an officer to believe that a valid order exists. For purposes of Sections 1 to 11, inclusive, the elder abuse protection order may be inscribed on a tangible copy or may be stored in an electronic or other medium if it is retrievable in a detectable form. Presentation of a certified copy of the elder abuse protection order is not required for enforcement or to allow a law enforcement officer to effect a warrantless arrest. If an elder abuse protection order is not presented to or otherwise confirmed by a law enforcement officer, the officer may consider other information in determining whether there is probable cause to believe that a valid protection order exists. The law enforcement officer may arrest the defendant without a warrant although he or she did not personally see the violation. Knowledge by the officer of the existence or contents of, or both, or presentation to the officer by the complainant of, an elder abuse protection order shall constitute prima facie evidence of the validity of the order. If a law enforcement officer determines that an otherwise valid elder abuse protection order cannot be enforced because the defendant has not been notified or served with the protection order, the law enforcement officer shall inform the defendant of the order and allow the person a reasonable opportunity to comply with the order's provisions before enforcing the order. In the event the law enforcement officer provides notice of the elder abuse protection order to the defendant, the officer shall document this fact in the written report.Section 12. Section 15-10-3, Code of Alabama 1975, is amended to read as follows:

§15-10-3.

"(a) An officer may arrest a person without a warrant, on any day and at any time in any of the following instances:

"(1) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.

"(2) When a felony has been committed, though not in the presence of the officer, by the person arrested.

"(3) When a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony.

"(4) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed.

"(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.

"(6) When the officer has actual knowledge that a warrant for the person's arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested person as soon as possible. If the officer does not have the warrant in his or her possession at the time of arrest the officer shall inform the defendant of the offense charged and of the fact that a warrant has been issued.

"(7) When the officer has reasonable cause to believe that a felony or misdemeanor has been committed by the person arrested in violation of a protection order, including a domestic violence protection order or an elder abuse protection order, issued by a court of competent jurisdiction.

"(8) When an offense involves domestic violence as defined in Section 13A-6-139.1 or elder abuse as defined in Section 3 of the act adding this amendatory language, and the arrest is based on probable cause, regardless of whether the offense is a felony or misdemeanor.

"(b) When a law enforcement officer investigates an allegation of domestic violence or elder abuse, whether or not an arrest is made, the officer shall make a written report of the alleged incident, including a statement of the complaint, and the disposition of the case.

"(c) If the defendant is arrested under this section for committing an act of domestic violence in violation of a domestic violence protection order or an act of elder abuse in violation of an elder abuse protection order, the defendant shall be held in custody until brought before the court as expeditiously as possible for the purpose of enforcing the protection order and for consideration of bail in accordance with Section 15-13-190 and the applicable rules of criminal procedure, pending a hearing."

Section 13. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 14. Nothing in this act shall be construed to limit the enforcement of any other laws or rules that protect vulnerable adults or limit the jurisdiction of or action by any regulatory or law enforcement agency.

Section 15. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Elderly

Human Resources Department

Protection Orders

Abuse

Crimes and Offenses

Courts

Administrative Office of Courts

Law Enforcement Officers

Arrests

Code Amended