“An Intensive Look at Elder Abuse in Indian Country”

1. “An Intensive Look at Elder Abuse in Indian Country” Pre-intensive Session Title VI National Training Baltimore, Maryland

2. 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

3. 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. 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. 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. 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. 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. What is Physical Abuse? Causing bodily harm through • Use of force • Intimidation • Unreasonable confinement • Sexual mistreatment

9. 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. What is Neglect? Failure to provide, or interfere with, essential services: • Shelter, food or clothing • Medical services • Supervision • Services or resources essential to elder’s traditions or religion

11. 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. 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. 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)

14. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

27. PART B - JURISDICTIONAL QUESTIONS IN ELDER ABUSE • WHAT IS PUBLIC LAW 280? • HOW CAN IT AFFECT ADULT PROTECTIVE SERVICES ON INDIAN RESERVATIONS?

28. FULL CIVIL JURISDICTION UNDER P.L. 280 • Did not apply to county, city local laws • Applied only to state laws of general application

29. Partial P.L. 280 Jurisdiction • States could assume partial subject matter jurisdiction • Example: Washington assumed civil jurisdiction over reservations in Washington State, but

30. 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….. In regard to trust land jurisdiction was extended only to:

31. 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. PART C -Financial Exploitation

33. 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. 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 tribalcourt but may include state court depending on particulars of parties, location and jurisdiction

35. 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

36. SUPERVISEDIIM 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. INFORMAL FIDUCIARYRELATIONSHIP • 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

38. 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. 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. 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. 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

42. 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)

43. 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. 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. 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

46. 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. 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

48. 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

49. 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. 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