april 30, 2007 an intensive look at elder abuse in indian country pre-intensive session title vi...
TRANSCRIPT
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
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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
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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
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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
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What is Physical Abuse?
Causing bodily harm through Use of force Intimidation Unreasonable confinement Sexual mistreatment
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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
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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
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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
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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
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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
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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
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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
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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)
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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
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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
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What if Elder refuses to cooperate in Investigation?
Tribal codes vary
Generally, if emergency and elder
does not consent to investigation
seek court permission
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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
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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
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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
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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?
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FULL CIVIL JURISDICTION UNDER P.L. 280
Did not apply to county, city local laws Applied only to state laws of general
application
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Partial P.L. 280 Jurisdiction
States could assume partial subject matter jurisdiction
Example: Washington assumed civil jurisdiction over reservations in Washington State, but
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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
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PART C -Financial Exploitation
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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
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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
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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
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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)
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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
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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
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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