Virginia Law

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abuse" means the willful infliction of physical pain, injury, or mental anguish or unreasonable confinement of an adult as defined in § 63.2-1603 of the Code of Virginia.

"Adult" means any person 60 years of age and older, or any person 18 years of age or older who is incapacitated and who resides in the Commonwealth; provided, however, "adult" may include qualifying nonresidents who are temporarily in the Commonwealth and who are in need of temporary or emergency protective services.

"Adult protective services" or "APS" means services provided by the local department that are necessary to protect an adult as defined in § 63.2-1603 of the Code of Virginia from abuse, neglect, or exploitation.

"APS case management information system" means the computer system that collects and maintains information on APS reports, investigations, and service provision. The system is the official state automated system for APS.

"Collateral" means a person whose personal or professional knowledge may help confirm or rebut the allegations of adult abuse, neglect, or exploitation or whose involvement may help ensure the safety of the adult.

"Commissioner" means the commissioner of the department.

"Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person, and where the context plainly indicates, includes a "limited conservator" or a "temporary conservator."

"Department" or "DARS" means the Virginia Department for Aging and Rehabilitative Services.

"Director" means the director or his designated representative of the local department of social services of any city or county in the Commonwealth.

"Disposition" means the determination by the local department of whether or not adult abuse, neglect, or exploitation has occurred.

"Documentation" means information and materials, written or otherwise, concerning allegations, facts, and evidence.

"Exploitation" means the illegal, unauthorized, improper, or fraudulent use of an adult as defined in § 63.2-1603 of the Code of Virginia or the adult's funds, property, benefits, resources, or other assets for another's profit, benefit, or advantage, including a caregiver or person serving in a fiduciary capacity, or that deprives the adult of his rightful use of or access to such funds, property, benefits, resources, or other assets. "Adult exploitation" includes (i) an intentional breach of a fiduciary obligation to an adult to his detriment or an intentional failure to use the financial resources of an adult in a manner that results in neglect of such adult; (ii) the acquisition, possession, or control of an adult's financial resources or property through the use of undue influence, coercion, or duress; and (iii) forcing or coercing an adult to pay for goods or services or perform services against his will for another's profit, benefit, or advantage if the adult did not agree, or was tricked, misled, or defrauded into agreeing, to pay for such goods or services or perform such services.

"Guardian" means a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The powers and duties of the guardian are defined by the court and are limited to matters within the areas in which the person in need of a guardian has been determined to be incapacitated.

"Guardian ad litem" means an attorney appointed by the court to represent the interest of the adult for whom a guardian or conservator is requested.

"Incapacitated person" means any adult who is impaired by reason of mental illness, intellectual disability, physical illness or disability, advanced age, or other causes to the extent that the adult lacks sufficient understanding or capacity to make, communicate, or carry out responsible decisions concerning his well-being. As used in this chapter for the purpose of establishing an adult's eligibility for APS, such adult may or may not have been adjudicated incapacitated by a court.

"Involuntary protective services" means those services authorized by the court for an adult who has been determined to need protective services and who has been adjudicated incapacitated and lacking the capacity to consent to receive the needed protective services.

"Lacks capacity to consent" means a preliminary judgment of a local department of social services that an adult is unable to consent to receive needed services for reasons that relate to an emotional or psychiatric condition, intellectual disability, developmental disability, or other reasons that impair the adult's ability to recognize a substantial risk of death or immediate and serious harm to himself. The lack of capacity to consent may be either permanent or temporary. The local department shall make a preliminary judgment that the adult lacks capacity to consent before petitioning the court for authorization to provide protective services on an emergency basis pursuant to § 63.2-1609 of the Code of Virginia.

"Legally incapacitated" means that the person has been adjudicated incapacitated by a circuit court because of a mental or physical condition that renders him, either wholly or partially, incapable of taking care of himself or his estate.

"Legitimate interest" means a lawful, demonstrated right to access the requested information pursuant to § 51.5-122 of the Code of Virginia.

"Local department" means any local department of social services in the Commonwealth of Virginia.

"Mandated reporters" means those persons identified in § 63.2-1606 of the Code of Virginia who are required to report to APS when such persons have reason to suspect that an adult is abused, neglected, or exploited or is at risk of abuse, neglect, or exploitation.

"Mental anguish" means a state of emotional pain or distress resulting from verbal or behavioral actions of an alleged perpetrator. The intent of the action is to threaten or intimidate, cause sorrow or fear, humiliate, change behavior, or ridicule the adult. There must be observable or documented evidence that it is the alleged perpetrator's action that has caused the adult's emotional pain or distress.

"Neglect" means that an adult as defined in § 63.2-1603 of the Code of Virginia is living under such circumstances that he is not able to provide for himself or is not being provided such services as are necessary to maintain his physical and mental health and that the failure to receive such necessary services impairs or threatens to impair his well-being. However, no adult shall be considered neglected solely on the basis that such adult is receiving religious nonmedical treatment or religious nonmedical nursing care in lieu of medical care, provided that such treatment or care is performed in good faith and in accordance with the religious practices of the adult and there is written or oral expression of consent by that adult. Neglect includes the failure of a caregiver or another responsible person to provide for basic needs to maintain the adult's physical and mental health and well-being, and it includes the adult's neglect of self. Neglect includes:

1. The lack of clothing considered necessary to protect an adult's health;

2. The lack of food necessary to prevent physical injury or to maintain life, including failure to receive appropriate food for adults with conditions requiring special diets;

3. Shelter that is not structurally safe; has rodents or other infestations that may result in serious health problems; or does not have a safe and accessible water supply, safe heat source, or sewage disposal. Adequate shelter for an adult depends on the impairments of the adult; however, the adult must be protected from the elements that would seriously endanger his health (e.g., rain, cold, or heat) and could result in serious illness or debilitating conditions;

4. Inadequate supervision by a paid or unpaid caregiver who provides the supervision necessary to protect the safety and well-being of an adult in his care;

5. The failure of persons who are responsible for caregiving to seek needed medical care or to follow medically prescribed treatment for an adult, or the adult has failed to obtain such care for himself. The needed medical care is believed to be of such a nature as to result in physical or mental injury or illness if it is not provided;

6. Medical neglect includes the withholding of medication or aids needed by the adult including dentures, eye glasses, hearing aids, or walkers. It also includes the unauthorized administration of prescription drugs, over-medicating or under-medicating, and the administration of drugs for other than medical reasons, as determined by a licensed health care professional; or

7. Self-neglect by an adult who is not meeting his own basic needs due to mental or physical impairments. Basic needs refer to such things as food, clothing, shelter, health, or medical care.

"Notification" means informing designated and appropriate individuals or agencies of the local department's action and the individual's rights.

"Preponderance of evidence" means the evidence as a whole shows that the facts are more probable and credible than not. It is evidence that is of greater weight or more convincing than the evidence offered in opposition.

"Report" means an allegation made in writing or orally by any person that an adult is suspected of being abused, neglected, or exploited or at risk of being abused, neglected, or exploited. The report shall be made to the local department or by calling the APS Hotline.

"Responsible person" means an individual who is authorized by state law to make decisions concerning the adult and to receive information about the adult.

"Service plan" means a written plan of action to address the service needs of an adult in order to protect the adult, to prevent future abuse, neglect, or exploitation, and to preserve the autonomy of the adult whenever possible.

"Unreasonable confinement" means the use of physical or chemical restraints, isolation, or any other means of confinement when there is no emergency and for reasons other than the adult's safety or well-being or the safety of others.

"Valid report" means the local department has evaluated the information and allegations of the report and determined that the local department shall conduct an investigation because all of the elements of 22VAC30-100-20 C for a valid report are present.