Division II. Elder and Vulnerable Adult Protection
Chapter 5.25
GENERAL PROVISIONS
Sections:
5.25.010 Purpose and construction.
5.25.040 Confidentiality of proceedings.
5.25.050 Confidentiality of records.
5.25.060 Time and process of hearings.
5.25.070 Rights of elders and vulnerable adults.
5.25.080 Transfer of jurisdiction.
5.25.010 Purpose and construction.
The purpose of this division is to protect elders and vulnerable adults from abuse, neglect, and exploitation as defined in this division. It is the policy of the Chehalis Tribe to continue the traditional respect and care for Tribal elders and vulnerable adults. Elders and vulnerable adults are valuable members of the Chehalis Tribe and have much to offer to their community. Thus it is in the interest of and serves the welfare of the Tribe to protect Tribal elders and vulnerable adults. This division shall be liberally interpreted in order to achieve this purpose. This division provides for:
A. Reporting abuse, neglect, or exploitation to the proper agency;
B. Receiving reports of and investigating suspected abuse, neglect, or exploitation;
C. Delivering elder or vulnerable adult protection services; and
D. Appointment of guardians and protective payees for certain elders or vulnerable adults. [Res. 2020-1.]
5.25.020 Definitions.
For the purposes of this division, unless otherwise expressly provided, the following definitions apply:
“Abuse” means physical, sexual, verbal, or mental mistreatment, harassment by any means – to include electronic, telephonic or through a third party – intimidation or injury which harms, puts at risk of harm, or threatens a person’s physical, emotional, mental, or financial well-being, or that causes alienation from a person’s family, community, spiritual, or cultural ties or activities. Abuse includes, but is not limited to:
1. Infliction of pain or injury;
2. Infliction of mental pain or psychological injury;
3. Unreasonable confinement;
4. Unreasonable restrictions on activities;
5. Intimidation, meaning to say or do something in such a way to frighten, or willfully placing another in fear of harm by coercion, extortion, or duress;
6. Humiliation, threats, or harsh language that results in physical harm or unreasonable emotional or psychological stress;
7. Sexual abuse, which includes any type of contact with an elder or vulnerable adult for sexual gratification without the person’s freely given consent;
8. Taking or misusing a person’s property, medication, or money without their consent.
“Consent” means written consent granted after the person has been fully informed of the nature of the services to be offered and understands that receiving services is voluntary.
“Elder” means a person subject to the jurisdiction of the Tribe who is at least 50 years of age.
“Emergency” means a situation in which an elder or vulnerable adult is immediately at risk of death, or of physical, emotional, mental, or financial injury, and is unable to consent to services which would remove this risk.
“Exploitation” means the illegal or improper use of an elder or vulnerable adult or that adult’s resources for another person’s profit or advantage. Exploitation includes but is not limited to:
1. Any unauthorized use or occupation of the elder’s or vulnerable adult’s real or personal property, food, telephone, utility services, residence, and lot assignment, vehicles, money, identification cards or documents, bank or credit cards, or other resources. Specific examples of unauthorized use include the sale or use of illegal drugs in or on the elder’s or vulnerable adult’s property, consuming alcohol or marijuana and partying in or on the elder’s or vulnerable adult’s property without their approval, use of the elder’s or vulnerable adult’s property or resources to further commission of a crime, any act or omission in an elder’s or vulnerable adult’s home or property which would compromise the elder’s or vulnerable adult’s ability to remain in their home; and failure to repay loans of money or other property to the elder or vulnerable adult. These examples shall not limit the interpretation of unauthorized use;
2. Use of an elder’s or vulnerable adult’s possessions or utilities which exceeds any uncoerced authorization he or she has given;
3. Unreasonable imposition on the elder’s or vulnerable adult’s time or resources, such as leaving children in the care of the elder or vulnerable adult for extended periods or under circumstances in which the elder or vulnerable adult cannot adequately care for the children;
4. Misuse of a power of attorney, guardian authority, protective payee status, or other legal authority to obtain resources of the elder or vulnerable adult for personal benefit.
“Good faith” means an honest belief or purpose and the lack of intent to defraud.
“Guardian” or “limited guardian” or “full guardian,” for the purpose of this chapter, means an individual whose rights, powers, and duties over an elder or vulnerable adult have been specifically ordered by operation of law, and who has a duty to act in the elder’s or vulnerable adult’s best interest.
“Heritage or cultural items” includes traditional cultural handwork and items of cultural or familial significance, including but not limited to beadwork, basketry, regalia, drums, carvings, tools, photographs or paintings, video or audio recordings, and other items of heritage or cultural significance.
“Incapacity” means the current inability of a person to sufficiently understand, make and communicate responsible decisions about himself or herself as a result of mental illness, mental deficiency, physical illness or disability, or chronic use of drugs or alcohol, and to understand the consequences of any such decision. Incapacity may vary in degree and duration. Incapacity shall not be determined solely on the basis of age.
“Neglect” means action or inaction by a person or entity with a duty of care toward an elder or vulnerable adult, which leaves the elder or vulnerable adult without the means or ability to meet their essential needs, to include food, clothing, shelter, emotional safety, and necessary health care, and to be able to maintain minimum physical, mental, and emotional health. Neglect also includes, but is not limited to, any interference with the provision of social and health services to maintain the elder’s or vulnerable adult’s physical, emotional, and mental health or safety, such that their health, safety or welfare is harmed or put at risk of harm. Neglect also includes, but is not limited to:
1. Physical neglect: failing to attend to an elder’s or vulnerable adult’s medical, hygienic, nutrition and dietary, clothing, and housing needs.
2. Emotional neglect: causing emotional pain, distress or anguish by ignoring, belittling or infantilizing the needs of an elder or vulnerable adult.
3. Abandonment: deserting the caregiving needs of an elder or vulnerable adult while neglecting to arrange sufficient care and support for the duration of the absence.
4. Financial neglect: disregarding an elder’s or vulnerable adult’s financial obligations, such as failing to pay rent or mortgage, medical insurance or invoices, utility and garbage bills, property taxes and assessments.
“Power of attorney” means a document that gives someone chosen by the person enacting it the legal authority to act in their place.
1. “Durable power of attorney” means a power of attorney that remains in place even if the person enacting it becomes mentally incapacitated and unable to handle his or her own affairs.
“Protective payee” means a person appointed by the Court to receive and disburse funds on behalf of another to protect and conserve that person’s financial resources.
“Protective services” means services provided to an elder or vulnerable adult with the elder’s or vulnerable adult’s consent or with appropriate legal authority and includes, but is not limited to: social case work, psychiatric and health evaluation, home care, day care, legal assistance, social services, health care, case management, and other services consistent with this division.
“Retaliation” means threatening a reporter of elder or vulnerable adult abuse or threatening the reporter’s family in any way, causing bodily harm to the reporter or the reporter’s family, causing the reporter or any of the reporter’s family to be terminated or suspended from employment or reprimanded by an employer, or damaging the reporter’s or the reporter’s family’s real or personal property in any way.
“Self-neglect” involves elders or vulnerable adults who fail to meet their own essential physical, psychological or social needs, which threatens their health, safety and well-being. This does not include actions or inactions by an elder or vulnerable adult who has sufficient resources and mental capacity to make and understand decisions for themselves, and to provide for their own essential needs, but who chooses not to meet those needs.
“Vulnerable adult” means a person 18 years of age or older who does not have the functional, mental, emotional or physical ability to protect and care for themselves, and also includes:
1. A person who has been determined by the Chehalis Tribal Court to be incapacitated;
2. A person determined to be disabled by an agency such as the Social Security Administration, Vocational Rehabilitation Division, Veteran’s Administration, or Medicaid;
3. A person who has a disability as a result of mental disability, cerebral palsy, epilepsy, autism, traumatic brain injury, or another neurological condition or illness diagnosed by a physician which is expected to continue indefinitely, and which constitutes a substantial handicap to the individual;
4. A person admitted to any long-term care facility or receiving services from health, hospice, or home care agencies; or
5. Any person who is the subject of an investigation or proceeding under this division whose incapacity has not yet been determined.
“Vulnerable person” means any individual that is a vulnerable adult, is under the age of 18, or that is an elder. [Res. 2020-1.]
5.25.030 Jurisdiction.
A. There is a presumption that it is in the best interest of a Chehalis elder or vulnerable adult for any protection or guardianship matter concerning him or her to be adjudicated in the Chehalis Tribal Court.
B. For purposes of protection and guardianship of elders and vulnerable adults, the Chehalis Tribal Court has exclusive original jurisdiction over all proceedings concerning an elder or alleged vulnerable adult which involve:
1. Any Indian elder or alleged vulnerable adult domiciled within the Tribe’s jurisdiction; or
2. Any Chehalis Indian elder or alleged vulnerable adult, notwithstanding his or her residence or domicile;
3. Any person that was the subject of a Tribal Court dependency or youth guardianship up to his or her eighteenth birthday, where a petition for protection or guardianship under this division was filed prior to dismissal of the dependency or youth guardianship. [Res. 2020-1.]
5.25.040 Confidentiality of proceedings.
A. All proceedings held pursuant to this division shall be closed and confidential.
B. Persons who may attend proceedings held pursuant to this division are:
1. The elder or vulnerable adult;
2. The elder’s or vulnerable adult’s guardian or protective payee;
3. Tribal Social Services;
4. Guardian ad litem;
5. Tribal law enforcement;
6. Attorneys or spokespersons representing the parties to the proceeding;
7. Other persons, to include the elder’s or vulnerable adult’s family members or caretakers, where no party objects, and where the Court finds good cause for their attendance.
C. Other persons may be allowed to appear at any proceeding to testify.
D. Any person ordered in a protection plan to be restrained from contact with an elder, or from whom restitution is ordered, shall only be permitted to appear and participate in the portion of the hearing that concerns them.
E. No person attending or testifying at any proceeding held pursuant to this division shall reveal information about the proceeding unless ordered to do so by Court order.
F. Copies of orders entered in proceeding under this division may be provided to other persons, to include those subject to restraint or restitution provisions, where necessary to ensure compliance with a protection plan or other Court order.
G. Any party may petition the Court to file documents under seal where the Court finds that disclosure of the documents to other parties jeopardizes the vulnerable adult’s or elder’s health, safety, or welfare. Where the Court permits this, a summary or redacted version of the document filed under seal shall be provided to parties at the discretion of the Court.
H. Any person who violates any subsection of this section shall be subject to a civil penalty not to exceed $5,000. Such penalty shall be assessed by the Court after petition, adequate notice, opportunity to be heard, and a determination that the violation occurred. [Res. 2020-1.]
5.25.050 Confidentiality of records.
A. Records of an investigation of elder or vulnerable adult neglect or exploitation or Court proceedings shall be confidential, and shall be open only to:
1. The elder or vulnerable adult;
2. Tribal Social Services;
3. Tribal law enforcement;
4. Tribal Court officials; and
5. Any other person whom the Tribal Court determines should have access, following a hearing on a petition for the Court to grant access to specified records. The burden of proof at such a hearing shall be clear and convincing evidence. [Res. 2020-1.]
5.25.060 Time and process of hearings.
A. Where doing so is not contrary to the health, safety, or welfare of the elder or vulnerable adult, the Court may in its discretion:
1. Set any nonemergent hearing up to 15 days beyond the time frames set forth in this code where doing so will allow for the matter to be heard on the next regular Court docket day for elder and vulnerable adult protection and guardianship matters, or where the Court finds doing so to be in the interest of justice.
2. Continue a hearing on the request of any party, for good cause shown.
B. Chapter 3.25 CTC (Civil Procedures) shall apply to all proceedings filed pursuant to this division, except where another process is set forth. [Res. 2020-1.]
5.25.070 Rights of elders and vulnerable adults.
For all proceedings under this division, unless otherwise expressly provided, elders and alleged or established vulnerable adults shall enjoy the following rights, which shall be explained to them at any hearing they attend:
A. To have a copy of any petition filed for protection or guardianship of them served upon them, along with notice of any hearings set.
B. To have legal representation at any proceeding, and that this may be available at no cost to them, if such a resource is available through the Court.
C. To attend all hearings.
D. To testify, to call witnesses, to have witnesses subpoenaed, to present evidence, to cross examine witnesses called by other parties, and to otherwise participate in the legal process.
E. To meet with the judge outside of the presence of other parties when the Court determines doing so is necessary and in the interest of justice. A request for this to occur may be made by any party, or the Court may order it to occur on its own. The Court may, at its discretion, seal or otherwise restrict access to the record of this meeting.
F. For accommodations to be made to allow the elder or vulnerable adult to participate in proceedings to the greatest extent possible. This may include, but is not limited to, requiring copies of documents to be provided in large print, reading documents aloud, limiting hearing length, providing an interpreter, allowing for telephonic participation, or requiring parties to speak loudly. [Res. 2020-1.]
5.25.080 Transfer of jurisdiction.
A. The Court may consider ex parte any motion for transfer of jurisdiction to the Chehalis Tribal Court of an elder or vulnerable adult protection or guardianship matter.
B. Where the Court declines to accept a transfer of jurisdiction, it shall issue an order detailing the particular reasons for the declination.
C. The Court shall within one week cause to be served on all parties a copy of the ex parte order on the motion for transfer of jurisdiction, and any person may within 14 calendar days of the Court serving the ex parte order object in writing to the order, and within 30 days of the Court Clerk’s receipt of a written objection, the Court shall conduct a hearing to determine whether the transfer should occur.
D. Where no objection to an ex parte order to accept a transfer of jurisdiction is filed with the Court Clerk, the Court shall conduct a status hearing within 60 days. The Court Clerk shall provide notice of the hearing to all parties, and to the Tribe, at least 14 days before the status hearing.
E. Cases transferred shall be accepted in the status received. Legal and factual determinations made by a Court prior to transfer of a case shall not be reviewed or modified unless doing so is necessary to conform with Chehalis Tribal law.
F. Where necessary to preserve the elder’s or vulnerable adult’s health, safety, and welfare, the Court may transfer jurisdiction of an elder or vulnerable adult protection or guardianship matter to another Court of competent jurisdiction upon motion of a party.
1. Any party may request the Court to transfer an elder or vulnerable adult protection or guardianship matter by filing with the Court Clerk a motion for transfer of jurisdiction.
2. The motion shall include:
a. The case name and number;
b. The names, ages, addresses, and Tribal status of the elder or vulnerable adult;
c. The names and addresses of any other party;
d. A statement of the reason the motion for transfer of jurisdiction should be granted.
3. The Court shall conduct a hearing on the transfer request within 30 days of the filing of the motion for transfer of jurisdiction, unless the parties agree to another period of time.
G. Notice of the date, time and location of a transfer hearing under this section shall be served upon the parties and the Tribe by the Court in accordance with CTC 3.25.080 and 3.25.090, or as hereafter amended.
H. A guardian’s wishes regarding a transfer shall be carefully considered by the Court but shall not be controlling in the disposition of a transfer issue. The controlling factor shall be the elder’s or vulnerable adult’s best interests.
I. Transfer hearings may be consolidated with any other hearing provided by this title. [Res. 2020-1.]