April 30, 2007 An Intensive Look at Elder Abuse in Indian Country Pre-intensive Session Title VI National Training Baltimore, Maryland.

April 30, 2007

“An Intensive Look at Elder Abuse in Indian Country”

Pre-intensive SessionTitle VI National Training

Baltimore, Maryland

April 30, 2007

Co-Presenter Helen SpencerTribal Elder Law Specialist Part A - Discussion of Tribal Elder

Protection Codes Part B - Jurisdictional Issues, P.L. 280 Part C - Fiduciary/ Trust Responsibilities

Powers of Attorney Supervised IIM Accounts Guardianships Confidential Relationships

April 30, 2007

Importance of Tribal Codes

Existing tribal criminal and civil remedies are often inadequate to meet the needs of Elders

Tribal abuse codes, other tribal options allow abuse, neglect, exploitation to be addressed comprehensively in a culturally appropriate manner

April 30, 2007

Development of Tribal Elder/ Vulnerable Adult Codes

Starting in/about 1990 numbers of Tribes adopted elder abuse codes, numbers continue to grow

American Indian Law Center (1990), Yakama Nation (1987) Model Codes with AoA funding

Many now include vulnerable adult

April 30, 2007

Common Issues in Tribal Codes

Elder abuse codes address Intentional acts or inaction Resulting in

Physical pain/ injury/harm Mental anguish or distress Economic harm

Intentional acts may also be criminal

April 30, 2007

Tribal Codes often broader than State Codes

Can include negligent acts or inaction

Can include presumption of harm when Elder cannot express pain, harm, mental distress

April 30, 2007

Common Language in Tribal Codes

The following discussion uses language from a number of Tribal Codes as well as the two Model Codes, and starts with definitions for abuse, neglect and exploitation

April 30, 2007

What is Physical Abuse?

Causing bodily harm through Use of force Intimidation Unreasonable confinement Sexual mistreatment

April 30, 2007

Tribal Codes Often Expand Abuse Definition to include Mental Abuse

Willfully subjecting elder to fear, agitation, confusion or serious emotional distress

by use of threats, harassment, other forms of intimidating or manipulative behavior

April 30, 2007

What is Neglect?

Failure to provide, or interferewith, essential services: Shelter, food or clothing Medical services Supervision Services or resources essential to elder’s traditions or religion

April 30, 2007

Who is obligated by Tribal Law to provide Essential Services?

(or be guilty of neglect) Caregivers and family members,some codes include everyone, some include anyone obligated by tribal law or custom to provide the essential services

April 30, 2007

What is “self-neglect”?

“Adults inability due to physical or mental impairments or diminished capacity to perform essential self-care tasks..."”2006 OAA Amendments

Self-neglect increasingly addressed by Tribal codes

April 30, 2007

What is Exploitation? Ex.1

Use of funds, property (including grazing permits, livestock and home sites) of elder for personal gain without the informed or true consent of the elder; gaining of funds, property by threats, humiliation, intimidation; failure to use funds, property for elder’s benefit according to elder’s wish (Navajo)

April 30, 2007

What is Exploitation? Ex.2

Unauthorized use... property,food, telephone, utility services, residence, land, vehicles, money or other resources; misuse of...possessions or utilities which exceeds authorization the elder has given, or unreasonable imposition on ... time or resources; attempt to unduly influence Elder to sign document…. (Yakama)

April 30, 2007

What is Exploitation? More

“Illegal or improper utilization of an adult or of the resources of an adult for monetary or personal benefit, profit or gain”(Fort Peck)

Economic exploitation frequently involves misuse of powers of attorney – discussion in Part C

April 30, 2007

Who Must Report Abuse, Neglect, Exploitation?

Tribal Codes varyMost have list of family, service provides, public officials who are mandatory reporters

Some codes also include any person who has good reason to think that abuse has occurred

April 30, 2007

What is the penalty for not reporting?

Tribal Codes vary widely Oglala – 30 days jail and a fine of at least $150

Ho-Chunk – fine up to $2,000 Bay Mills – fine up to $5,000 Yakama – 50-100 hours community service

April 30, 2007

What Protections are those for those who Report?

Immunity from civil or criminal liability Harassment not allowed (Sisseton-

Wahpeton) Exception: Reports made in bad faith –

knowing information is false (Nez Perce, Ho-Chunk, Bay Mills), penalties up to $5,000

Anonymity Unless consent or court order, if damage to

elder appears likely (Nez Perce, Navajo)

April 30, 2007

To whom do you report?

Varies, examples Navajo – Division of Health Nez Perce – Social Services Program Sisseton-Wahpeton – Tribal Criminal

Investigator Fort Peck – Adult Protection Team or

Law Enforcement

April 30, 2007

How are reports screened to determine if crime is involved?

Often elders refuse to sign criminal complaint

Some codes allow other person to sign criminal complaint

Other codes allow civil intervention without requiring criminal referral

Some codes provide for mandatory arrest if matter is considered criminal

April 30, 2007

What if Elder refuses to cooperate in Investigation?

Tribal codes vary

Generally, if emergency and elder

does not consent to investigation

seek court permission

April 30, 2007

What is the penalty for not reporting?

Tribal Codes vary widely Oglala – 30 days jail and a fine of at least $150

Ho-Chunk – fine up to $2,000 Bay Mills – fine up to $5,000 Yakama – 50-100 hours community service

April 30, 2007

What processes follow investigation?

Civil judicial processes Civil action to prevent, restrain or remedy prohibited conduct

Tribal Court can Issue restraining order

Order payment of actual and/or punitive damages

April 30, 2007

More Civil Processes

Court can also Appoint a guardian ad litem, request supervised IIM account, recommend representative payee,

Order service plan Refer to peacemaker court, multidisciplinary team

April 30, 2007

Non-Judicial Processes after Investigation

Some Tribes provide services withoutcourt involvement

Fort Peck Adult Protection Team makes determination of abuse, develops service plan, to court only for guardianship

Yankton Sioux Elder Protection Team – refers for criminal charges, if not criminal team coordinates services

April 30, 2007

Judicial and Non-Judicial Processes Allow Follow-up

Tribal systems (codes, traditional alternatives, non-judicial protection teams)

provide the important structure for continuation of services to the Elder who has been a victim of abuse, neglect or exploitation beyond what the criminal system usually provides.

April 30, 2007

PART B - JURISDICTIONAL QUESTIONS IN ELDER ABUSE

WHAT IS PUBLIC LAW 280?

HOW CAN IT AFFECT ADULT PROTECTIVE SERVICES ON INDIAN RESERVATIONS?

April 30, 2007

FULL CIVIL JURISDICTION UNDER P.L. 280

Did not apply to county, city local laws Applied only to state laws of general

application

April 30, 2007

Partial P.L. 280 Jurisdiction

States could assume partial subject matter jurisdiction

Example: Washington assumed civil jurisdiction over reservations in Washington State, but

April 30, 2007

In regard to trust land jurisdiction was extended only to:

Compulsory school attendance; Public assistance (includes elder abuse?) Domestic relations (includes elder abuse?) Mental illness Juvenile delinquency Adoption proceedings * Dependent children* Operation of motor vehicles…..

April 30, 2007

Some State APS Services are Requested by Tribes

Investigative services? Other services? Argument based on states prior delivery of

adult services? By Tribal/State agreement: Nez Perce

Example

April 30, 2007

PART C -Financial Exploitation

April 30, 2007

FINANCIAL EXPLOITATION OF ELDERS AND THE FIDUCIARY/TRUST RESPONSIBILITY OF SUBSTITUTE DECISION MAKERS

Durable Powers of Attorney Guardianships Supervised Individual Indian Money (IIM)

Accounts Informal Fiduciary Relationships

April 30, 2007

BRIEF OVERVIEWPower of Attorney - Legal Document

Durable power of attorney gives authority over the assets and/or person of a “Principal” (here an Elder) to an “Agent” - Does not require attorney, court,* or agency

* References to “court(s)” assume tribal court but may include state court depending on particulars of parties, location and jurisdiction

April 30, 2007

GUARDIANSHIP – COURT PROCESS

Court gives authority to a “guardian” to supervise Elder’s personal care and/or financial affairs

Should involve court’s continuing supervision, be limited to actual needs of Elder

April 30, 2007

SUPERVISED IIM ACCOUNT – AGENCY ACTION

Bureau of Indian Affairs (BIA) supervision of individual Indian money (typically lease and grazing $) in IIM account for “adults in need of assistance” – May also involve supervision of per capitas, VA Payments, SSI/Social Security

April 30, 2007

INFORMAL FIDUCIARY RELATIONSHIP

Arises out of personal, informal, unwritten relationship

Vulnerable Elder is befriended by one who gains the confidence of the Elder and represents that he or she is acting with the Elder’s interest in mind

Courts can review to see if there is a fiduciary relationship and if the “friend” has violated the rules of care for confidential relationships

April 30, 2007

THE FIDUCIARY RESPONSIBILITY EXTENDS TO ALL

When Elder justifiably expects his personal and/or financial welfare to be cared for by adult, that person is in a fiduciary relationship

Same as the trust responsibility that applies to the BIA - can be applied in tribal court

Application of the highest standards of conduct: good faith, diligence, integrity, undivided loyalty

April 30, 2007

Powers of Attorney

ADVANTAGES Easy to use Can do on own with no expense Private “Durable” means authority can start either upon

disability/ incapacity or immediately Durable Power of Attorney (DPOA) is a standard

part of estate planning with attorney

April 30, 2007

Disadvantages

Easy to Abuse Elder may be coerced, especially if no

witness Usually no court oversight If use book store/ internet forms and no

attorney grand of authority can be too broad

April 30, 2007

Issues with Forms

DPOA law varies from state to state Good model form for Washington State

developed by legal services program Your state’s legal services attorneys can

recommend best DPOA form Banks do not like forms, may have own Forms never include matters of concern to

Indians

April 30, 2007

Common Elements

DPOA can be easily revoked at any time if Elder has capacity

Expires immediately upon Elder’s death Elder does not lose right to make own

decisions as long as has mental capacity If dispute over capacity, agent should let a

court decide issue (by filing guardianship)

April 30, 2007

Typical Authority Given to DPOA Agent

To manage general financial matters To sue on behalf of Elder To cash check, collect debts To buy or sell things

April 30, 2007

Authority over Health Care

DPOA can include Authority for Major Medical Decisions

Medical Decision authority can also be made in a separate Durable Power of Attorney for Health Care, or Health Care Proxy

Authority should include HIPAA language

April 30, 2007

Authority to Sell Land

In Washington State DOPA must be notarized, no witness otherwise,

only if it is to be used to sell Elder’s land – different rules for different states

Note: A notarization only verifies the identity of the person signing, does not verify that they are competent or that they read or understood what they signed

April 30, 2007

Indian Issues can be added to DPOA

Examples of Indian Gifting Issues (Medicaid?) To allow or disallow giving away of any regalia,

basketry, beadwork, traditional jewelry, etc., before death

To specify or not to whom such items should be gifted and when

To specify what, if any, gifting of cash, other personal property, is authorized

April 30, 2007

More Examples of Indian Issues for DPOA- To Allow or Disallow Agent...

To represent Elder in dealing with BIA or Tribe in regard to supervision or release of individual trust money or per capita

to deal with Tribal Housing Authority in regard to ownership and/or leasing/ and or successor ship or other matters

to consent to sale of any or Elder’s trust property

April 30, 2007

Powers of Attorney: Warning

The fiduciary responsibly requires that records be kept, and that the Elder’s assets not be used for the benefit of anyone else – breach trust for the Agent/fiduciary not to keep records – burden will be on fiduciary to prove did not use assets for own benefit

All Durable Powers of Attorney should include this warning

April 30, 2007

Guardianships

When there is no DPOA, or no agent, or agent is in disagreement with Elder, or breach of fiduciary duty a Guardianship may be appropriate

Could be exception if issue is only financial exploitation and Elder has only SSI, Social Security and income from own trust land (SSA and BIA can help)

April 30, 2007

Guardianship Process

Filing of petition for guardianship - court makes initial decision after notice (to all of family??) and hearing

Initial determination is whether or not the Elder is really so mentally incapacitated that the Elder is unable to take care of own basic needs and/or property and finances

If yes, then a guardian or co-guardians can be appointed

April 30, 2007

Guardianship Issues

Guardianship process often very confusing for Indian families, unwelcome by Elder

Guardian(s) usually are, but need not be, family member(s)

Elder can specify in DPOA, or other way, who Elder wants for guardian

Guardianship orders should be as limited as possible, address Elder’s current needs

April 30, 2007

Guardianships: Annual/Periodic Review

State courts usually require annual review of expenditures, funds, assets of Elder, tribal court can/should also

Guardianship reviews may be best method of assuring that guardian(s) are not misusing the Elder’s resources, and to address any new problems Elder or guardian is having with guardianship

April 30, 2007

BIA Supervision of IIM Accounts

History – In past BIA often too willing put “hold” IIM money, label adult Indian “non-compos mentis”

At same time, many Elders appreciated the BIA’s willingness to let them use IIM accounts as bank accounts, accepting a wide range of pensions and other deposits

April 30, 2007

Supervised Accounts - Present

Likely related to Cobell lawsuit, BIA tried in 2001 to narrow its responsibility in regard to the IIM accounts of adult Indians, prohibiting deposit of funds other than Indian trust funds, federal SSI/ Social or VA, and limiting supervision of adult accounts

April 30, 2007

2001 IIM Regulations (25 CFR Part 115): Provide that any “non-compos mentis”

determination come from a court

Accept SSA finding that a representative payee is needed as proof that an adult is also in need of assistance with his or her IIM fund

Still allow BIA to administratively determine that an adult’s IIM account should be supervised based on medical or mental health professional

April 30, 2007

Powers of Attorney and Access to IIM Funds of Vulnerable Adult

2001 Regulations allow release of Elder’s IIM account funds based on presentation of power or attorney – solicitor to review only form

Soon after BIA sued and found liable for releasing IIM money of disabled adult to untrustworthy DPOA agent

BIA has fiduciary/ trust duty to carefully oversee any releases from supervised trust account

April 30, 2007

Confidential Relationship Test

If one person has gained the confidence of the Elder and claims to act or advise with the Elders interest in mind

The more vulnerable or dependent the Elder is on the adult child/caregiver/ advisor the more likely a court is to find a confidential relationship,

and high standards of fiduciaries apply

April 30, 2007

Breach of Fiduciary/ Trust Creates Liability for Money, Property Awards

A claim for a money judgment or return of property can be made under the trust or fiduciary theory

Tribal courts may want to apply principles Judgments can be in addition to remedies

provided by Tribal Elder Protection Code