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

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Presentation on theme: "April 30, 2007 An Intensive Look at Elder Abuse in Indian Country Pre-intensive Session Title VI National Training Baltimore, Maryland."— Presentation transcript:

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

2 April 30, 2007 Co-Presenter Helen Spencer Tribal 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

3 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

4 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

5 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

6 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

7 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

8 April 30, 2007 What is Physical Abuse? Causing bodily harm through Use of force Intimidation Unreasonable confinement Sexual mistreatment

9 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

10 April 30, 2007 What is Neglect? Failure to provide, or interfere with, essential services: Shelter, food or clothing Medical services Supervision Services or resources essential to elders traditions or religion

11 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

12 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

13 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 elders benefit according to elders wish (Navajo)

14 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)

15 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

16 April 30, 2007 Who Must Report Abuse, Neglect, Exploitation? Tribal Codes vary Most 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

17 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

18 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)

19 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

20 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

21 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

22 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

23 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

24 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

25 April 30, 2007 Non-Judicial Processes after Investigation Some Tribes provide services without court 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

26 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.


28 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

29 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

30 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…..

31 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

32 April 30, 2007 PART C - Financial Exploitation

33 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

34 April 30, 2007 BRIEF OVERVIEW Power 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

35 April 30, 2007 GUARDIANSHIP – COURT PROCESS Court gives authority to a guardian to supervise Elders personal care and/or financial affairs Should involve courts continuing supervision, be limited to actual needs of Elder

36 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

37 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 Elders 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

38 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

39 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

40 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

41 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 states legal services attorneys can recommend best DPOA form Banks do not like forms, may have own Forms never include matters of concern to Indians

42 April 30, 2007 Common Elements DPOA can be easily revoked at any time if Elder has capacity Expires immediately upon Elders 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)

43 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

44 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

45 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 Elders 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

46 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

47 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 Elders trust property

48 April 30, 2007 Powers of Attorney: Warning The fiduciary responsibly requires that records be kept, and that the Elders 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

49 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)

50 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

51 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 Elders current needs

52 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 Elders resources, and to address any new problems Elder or guardian is having with guardianship

53 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 BIAs willingness to let them use IIM accounts as bank accounts, accepting a wide range of pensions and other deposits

54 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

55 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 adults IIM account should be supervised based on medical or mental health professional

56 April 30, 2007 Powers of Attorney and Access to IIM Funds of Vulnerable Adult 2001 Regulations allow release of Elders 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

57 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

58 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

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