PRINTER'S NO. 164
No. 158 Session of 2003
INTRODUCED BY EARLL, PICCOLA, KUKOVICH, M. WHITE, SCHWARTZ,
MOWERY, THOMPSON, COSTA, RHOADES, LAVALLE, MUSTO, WAGNER,
HUGHES, GREENLEAF, TOMLINSON, CORMAN AND TARTAGLIONE,
FEBRUARY 4, 2003
REFERRED TO AGING AND YOUTH, FEBRUARY 4, 2003
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, further providing for protection from
3 abuse; and providing for appointing guardians for care-
4 dependent persons.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. The definition of "abuse" in section 6102(a) of
8 Title 23 of the Pennsylvania Consolidated Statutes is amended
9 and the subsection is amended by adding definitions to read:
10 § 6102. Definitions.
11 (a) General rule.--The following words and phrases when used
12 in this chapter shall have the meanings given to them in this
13 section unless the context clearly indicates otherwise:
14 "Abuse." The occurrence of one or more of the following acts
15 between family or household members, sexual or intimate partners
16 [or], persons who share biological parenthood or the occurrence
17 of one or more of these acts by a person who is a caretaker to a
18 care-dependent person:
1 (1) Attempting to cause or intentionally, knowingly or
2 recklessly causing bodily injury, serious bodily injury,
3 rape, involuntary deviate sexual intercourse, sexual assault,
4 statutory sexual assault, aggravated indecent assault,
5 indecent assault or incest with or without a deadly weapon.
6 (2) Placing another in reasonable fear of imminent
7 serious bodily injury.
8 (3) The infliction of false imprisonment pursuant to 18
9 Pa.C.S. § 2903 (relating to false imprisonment).
10 (4) Physically or sexually abusing minor children,
11 including such terms as defined in Chapter 63 (relating to
12 child protective services).
13 (5) Knowingly engaging in a course of conduct or
14 repeatedly committing acts toward another person, including
15 following the person, without proper authority, under
16 circumstances which place the person in reasonable fear of
17 bodily injury. The definition of this paragraph applies only
18 to proceedings commenced under this title and is inapplicable
19 to any criminal prosecutions commenced under Title 18
20 (relating to crimes and offenses).
21 * * *
22 "Agency." The local provider of protective services, which
23 is the area agency on aging or the agency designated by the area
24 agency on aging to provide protective services in the area
25 agency's planning and service area as defined in the act of
26 November 6, 1987 (P.L.381, No.79), known as the Older Adults
27 Protective Services Act.
28 "Care-dependent person." Any adult 60 years of age or older
29 who, due to physical or cognitive disability or impairment,
30 requires assistance in meeting needs for food, shelter,
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1 clothing, personal care or health care.
2 "Caretaker." Any person who:
3 (1) is an owner, operator, administrator, manager or
4 employee of a nursing home, personal care home, domiciliary
5 care home, community residential facility, adult daily living
6 center, home health service provider or a facility, whether
7 licensed or unlicensed, including any care or service that
8 takes place in the care-dependent person's home;
9 (2) provides care to a care-dependent person in the
10 setting described in paragraph (1); or
11 (3) has an obligation to care for a care-dependent
12 person for monetary consideration in the settings described
13 in paragraph (1).
14 * * *
15 "Facility." Any of the following:
16 (1) A domiciliary care home as defined in section 2202-A
17 of the act of April 9, 1929 (P.L.177, No.175), known as The
18 Administrative Code of 1929.
19 (2) A home health care agency.
20 (3) A long-term care nursing facility as defined in
21 section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
22 known as the Health Care Facilities Act.
23 (4) An older adult daily living center as defined in
24 section 2 of the act of July 11, 1990 (P.L.499, No.118),
25 known as the Older Adult Daily Living Centers Licensing Act.
26 (5) A personal care home as defined in section 1001 of
27 the act of June 13, 1967 (P.L.31, No.21), known as the Public
28 Welfare Code.
29 * * *
30 "Home health care agency." Any of the following:
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1 (1) A home health care organization or agency licensed
2 by the Department of Health.
3 (2) A public or private agency or organization, or part
4 of an agency or organization, which provides care to a care-
5 dependent person in the person's place of residence.
6 * * *
7 "Protective services." Those activities, resources and
8 supports provided to older adults to detect, prevent, reduce or
9 eliminate abuse, neglect, exploitation and abandonment under the
10 act of November 6, 1987 (P.L.381, No.79), known as the Older
11 Adults Protective Services Act.
12 * * *
13 Section 2. Section 6106(a) and (c) of Title 23 are amended
14 and the section is amended by adding subsections to read:
15 § 6106. Commencement of proceedings.
16 (a) [General rule] Persons authorized.--
17 (1) An adult or an emancipated minor may seek relief
18 under this chapter for that person or any parent, adult
19 household member or guardian ad litem may seek relief under
20 this chapter on behalf of minor children, or a guardian of
21 the person of an adult who has been declared incompetent
22 under 20 Pa.C.S. Ch. 51 Subch. B (relating to appointment of
23 guardian) may seek relief on behalf of the incompetent
24 adult[,].
25 (2) If, however, the defendant is a caretaker of the
26 abused, who is a care-dependent person, any person acting in
27 good faith and having reasonable cause to believe that the
28 care-dependent person is being abused may, after reasonably
29 attempting to consult with the care-dependent person and
30 after notifying the agency, seek relief under this chapter
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1 and may seek relief until the care-dependent person is able
2 to do so on that person's own behalf or by representation.
3 (3) Relief under this chapter shall be sought by filing
4 a petition with the court alleging abuse by the defendant.
5 (4) An employee of a caretaker who is seeking relief
6 under this chapter, on behalf of a care-dependent person,
7 shall also report the alleged abuse as required under the act
8 of November 6, 1987 (P.L.381, No.79), known as the Older
9 Adults Protective Services Act.
10 * * *
11 (a.2) Individual immunity.--A person who seeks relief under
12 this chapter on the behalf of a care-dependent person shall be
13 immune from civil or criminal liability in connection with any
14 action taken under this chapter unless the person acted in bad
15 faith or with malicious purpose.
16 (a.3) Caretaker immunity.--A caretaker, who is not the
17 defendant for which relief is being sought under this chapter,
18 shall be immune from civil liability for any action directly
19 related to good faith compliance with this chapter and any
20 action required under the Older Adults Protective Services Act,
21 unless the caretaker has acted in bad faith or with malicious
22 purpose.
23 * * *
24 (c) Assessment of fees and costs.--If the plaintiff prevails
25 in the action, fees and costs, including attorney costs
26 resulting from the appointment of counsel for care-dependent
27 persons by a court of competent jurisdiction pursuant to
28 subsection (i), shall be assigned to the defendant, or, should
29 the court determine that the defendant is not able to pay the
30 costs of filing and service, the court shall waive fees and
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1 costs. If the plaintiff does not prevail, costs of filing and
2 service may be assigned to the plaintiff or, should the court
3 determine that the plaintiff is not able to pay the costs of
4 filing and service, the court shall waive fees and costs.
5 * * *
6 (i) Appointment of attorney for care-dependent person.--
7 (1) When a person seeks relief under this chapter on
8 behalf of a care-dependent person alleging abuse, the court
9 may appoint an attorney to represent the care-dependent
10 person for the duration of the proceedings.
11 (2) The attorney appointed under this subsection shall
12 be given access to all documents and reports relevant to the
13 proceedings under this chapter and to any reports of
14 examination of the care-dependent person. The attorney shall
15 be charged with the representation of the care-dependent
16 person at every stage of the proceedings and, if necessary,
17 shall make such further investigation to ascertain the facts,
18 interview witnesses, examine and cross-examine witnesses,
19 make recommendations to the court and participate further in
20 the proceedings to the appropriate degree to adequately
21 represent the care-dependent person. The attorney shall, when
22 possible, ascertain the wishes of the care-dependent person
23 concerning the proceedings and shall communicate the wishes
24 to the court.
25 (3) The court shall give consideration to the petition
26 of any attorney for the care-dependent person and, when
27 deemed appropriate:
28 (i) Order an agency to establish and implement,
29 fully and promptly, appropriate services, treatment and
30 plans for the care-dependent person found to be in need
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1 of them.
2 (ii) Terminate or alter the conditions of any
3 temporary or permanent relief issued under this chapter.
4 Section 3. This act shall take effect in 60 days.
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