Chapter 5.55
GUARDIAN AND PROTECTIVE PAYEE
Sections:
5.55.020 Petition for appointment of guardian or protective payee.
5.55.030 Petition for appointment of guardian or protective payee – Contents.
5.55.040 Guardian and protective payee preferences and qualifications.
5.55.050 Hearing on petition for appointment of guardian or protective payee – Setting.
5.55.070 Appointment of guardian ad litem.
5.55.080 Hearing on appointment of guardian or protective payee – Conduct.
5.55.090 Grounds for appointing guardian or protective payee.
5.55.110 Order appointing guardian or protective payee.
5.55.120 Guardian duties and limitations.
5.55.150 Guardian or protective payee shall petition Court for clarification.
5.55.160 Modification or termination of guardianship.
5.55.170 Civil action for reimbursement.
5.55.010 Purpose.
A. This division provides a process for empowering one or more persons to act on behalf of an elder or vulnerable adult who requires assistance in conducting business or in obtaining necessary services.
B. The Court may appoint one or more guardian(s) or protective payee(s) or a combination of the two for the benefit of an elder or vulnerable adult. [Res. 2020-1.]
5.55.020 Petition for appointment of guardian or protective payee.
A. The Tribe, a family member or any other interested person may file a petition with the Court requesting that one or more guardians of the estate or of the person, or a protective payee, be appointed for an elder or vulnerable adult.
B. The elder or vulnerable adult may file on his or her own behalf. [Res. 2020-1.]
5.55.030 Petition for appointment of guardian or protective payee – Contents.
The petition for appointment of an elder or vulnerable adult guardian or protective payee shall include:
A. The name, birth date, residence, and Tribal status of the elder or vulnerable adult who is the subject of the petition;
B. The name, birth date, mailing address, residence, and Tribal status of the petitioner(s) and his or her relationship to the elder or vulnerable adult;
C. Qualifications of the proposed guardian or protective payee, if one has been identified;
D. A statement explaining why the petitioner(s) believes the elder or vulnerable adult needs assistance in conducting business or in obtaining necessary services for his or her well-being, and the scope of the requested guardian’s or protective payee’s role;
E. The name, addresses and relationship of the elder’s or vulnerable adult’s spouse and children, if any, and of any other family members or persons who have been significantly involved in the care of the elder or vulnerable adult in the recent past;
F. Whether a guardian or protective payee has been appointed by another court;
G. Whether the elder or vulnerable adult has a living will (directive to physicians) or has given anyone a power of attorney;
H. Scope of the recommended authority of any proposed guardian or protective payee;
I. A description of the elder’s or vulnerable adult’s property, real property, income or other resources, if assistance with the elder’s or vulnerable adult’s finances is being requested, to include whether the elder or vulnerable adult has now property or funds held in trust by the Office of the Special Trustee for the Bureau of Indian Affairs, or may in the future have such funds;
J. Results of a background check of the person recommended to be appointed guardian or protective payee, and results of background checks of any person over the age of 16 living in the guardian’s home, where the elder or vulnerable adult resides in the home of the person recommended to be appointed guardian. [Res. 2020-1.]
5.55.040 Guardian and protective payee preferences and qualifications.
A. Whenever possible the Court shall appoint a family member, current or former caretaker, or person previously designated by the elder or vulnerable adult to serve as guardian or protective payee. Where in the elder’s or vulnerable adult’s best interests, and at the discretion of the Court, more than one guardian may be appointed. Guardians and protective payees shall possess the following minimum qualifications:
1. Be over the age of 18, and of sound mind;
2. Have no adverse civil findings or criminal convictions under applicable Tribal, Federal, or State law related to abuse or neglect of an elder or vulnerable person within the past 10 years; and
3. Have no criminal convictions or adverse civil findings related to breach of fiduciary duty, financial exploitation, fraud, forgery, or embezzlement, in order to take on duties related to an elder’s or vulnerable person’s financial affairs.
B. A guardian or proposed guardian may be required by the Court to complete a guardian training program either prior to appointment, or within six months of appointment, if the Court finds doing so necessary in order for the guardian or proposed guardian to meet the particular needs of the elder or vulnerable adult. If ordered, this requirement may be fulfilled by a guardian training program offered by another tribe, by the State of Washington, or by an agency approved by the Tribe, if a program is not available through the Chehalis Tribe.
C. Where there is no family member or person previously designated by the elder or vulnerable adult able or willing to serve as guardian, or where the Court finds it to be in the elder’s or vulnerable adult’s best interest, the Court may appoint a certified professional guardian. The certified professional guardian shall be required to adhere to all rules and regulations of his or her certifying or licensing body. Costs and fees associated with a professional guardian shall be paid for by the estate of the elder or vulnerable adult, unless the Tribe has allocated other funds for this purpose.
D. In certain exigent circumstances, and for periods of time not to exceed 90 days without Court review and extension, the Court may appoint Social Services as temporary, limited guardian pending appointment of a permanent guardian. In such cases the Court shall:
1. Enter an order delineating the specific responsibilities of Social Services in regard to the elder or vulnerable adult, consistent with Social Services policies and available resources; and
2. Order that diligent efforts be made to identify a proposed guardian. [Res. 2020-1.]
5.55.050 Hearing on petition for appointment of guardian or protective payee – Setting.
Upon receiving a petition for appointment of guardian or protective payee, the Court shall set a hearing date which shall not be more than 40 calendar days after the receipt of the petition. Where contested, a determination on the petition shall be made at the conclusion of a bench trial. [Res. 2020-1.]
5.55.060 Notice of hearing.
A. Notice of hearing shall be given at least 20 calendar days before the hearing date.
B. The notice shall include the date, time and place of the hearing and a copy of the petition.
C. The notice provided to the elder or vulnerable adult shall include the following information, in no smaller than 12 point font:
IMPORTANT NOTICE. A petition to appoint a guardian for you has been filed in Chehalis Tribal Court. If a guardian is appointed, you will lose important rights. This could include your right to consent to or refuse medical care; to manage your own finances; to marry; to buy, sell, or lease property; to make or revoke a will; or to make other decisions about your finances, care, and personal life. You have the right to legal representation at the hearing. This will be provided at no cost to you, if you are not able to pay for an attorney. You have the right to be present in court and to testify at a hearing to decide whether or not you need a guardian.
D. The notice shall be served upon:
1. The petitioner(s);
2. The elder or vulnerable adult;
3. The elder’s or vulnerable adult’s spouse, significant other, and adult children, if any;
4. Tribal Social Services or its designated representative; and
5. Any other family members or persons who have been significantly involved in the care of the elder or vulnerable adult in the recent past.
E. On the petitioner’s motion, which may be filed ex parte, the Court may for good cause shown order that a copy of the petition not be included in notice provided to a person entitled to notice where allowing such person access to information in the petition could endanger the elder’s or vulnerable adult’s health, safety, or welfare.
F. If the Court discovers that additional persons should be notified after proceedings are in progress, it may continue the proceedings in order to give those persons notice and the opportunity to respond. [Res. 2020-1.]
5.55.070 Appointment of guardian ad litem.
The Court shall appoint a guardian ad litem to represent the interests of an elder or vulnerable adult in guardian or protective payee proceedings, where it is alleged that the elder or vulnerable adult on whose behalf a petition has been filed is incapacitated, or where the Court otherwise finds doing so to be in the best interest of the elder or vulnerable adult or necessary to the administration of justice. [Res. 2020-1.]
5.55.080 Hearing on appointment of guardian or protective payee – Conduct.
A. A hearing on the petition for appointment of guardian or protective payee is an opportunity for all parties to provide testimony or other evidence to assist the Court in determining whether the appointment of a guardian or protective payee, or both, is necessary to assist the adult to conduct business or to obtain necessary services.
B. Powers granted to a guardian or protective payee shall be no more extensive than is necessary to address the specific facts in the petition proven by the petitioner.
C. Social Services or a guardian ad litem shall be appointed to investigate and make recommendations at the hearing as to the need for a guardian or protective payee, and as to the qualifications of the proposed guardian or protective payee. The report shall be filed with the Court, and a copy shall be served on parties at least 10 days before the hearing. The report shall include, at a minimum:
1. For a proposed guardian of the estate or protective payee:
a. Whether the proposed guardian or protective payee is capable of understanding and complying with financial reporting requirements for the Court and any benefits programs to which the elder or vulnerable adult is entitled;
b. The proposed guardian’s or protective payee’s relationship to the elder or vulnerable adult;
c. A detailed summary of the elder’s or vulnerable adult’s current financial affairs, to include assets, any debts owed, current account balances, and as to any assets held in trust by the Office of the Special Trustee for the Bureau of Indian Affairs, Chehalis Tribe’s Legally Incompetent Person’s Trust, or any other trustee; and
d. A detailed summary of the elder’s or vulnerable adult’s current expected income and expenses.
2. For a proposed guardian of the person:
a. Whether the proposed guardian is capable of understanding and following through with all needed medical care for the elder or vulnerable adult;
b. A thorough assessment of the proposed guardian’s background, and abilities to make decisions on behalf of the elder or vulnerable adult, to include their relationship with the elder or vulnerable adult;
c. A homestudy of the home or facility where the elder or vulnerable adult is or will be living if the guardianship is granted; and
d. A detailed summary of the elder’s or vulnerable adult’s abilities and needs in regard to medical, social, cultural, housing, and care needs, and the ability of the proposed guardian to fulfill those needs.
D. The Court at the hearing shall in its discretion continue proceedings as necessary to allow time for:
1. A physician to provide a signed letter, or to appear to give testimony, as to the nature and expected duration of any alleged incapacity;
2. An accounting of the elder’s or vulnerable adult’s income, real and personal property, and resources, to include trust assets, including those held in trust by the Office of the Special Trustee for the Bureau of Indian Affairs.
E. The Court in its discretion may appoint a temporary or interim guardian or protective payee pending further hearings on the petition. [Res. 2020-1.]
5.55.090 Grounds for appointing guardian or protective payee.
A. The Court may appoint a guardian or protective payee when the elder or vulnerable adult has consented in writing.
B. The Court may appoint a guardian or protective payee without the elder’s or vulnerable adult’s consent if the Court finds that due to incapacity the elder or vulnerable adult cannot protect and care for himself or herself.
C. The burden of proof shall be clear and convincing evidence. The rules of evidence shall be the same as those which apply to other civil actions before the Tribal Court. If the allegations of the petition are proven (which may include, in part, reliable hearsay evidence), and the Court finds the elder or vulnerable adult to be in need of a guardian or protective payee, the Court shall enter orders appointing a guardian and/or protective payee. [Res. 2020-1.]
5.55.100 Agreed order.
A. The parties to a hearing on a petition for appointment of a guardian or protective payee may agree to a proposed order which resolves some or all of the issues of the case, where the Court has determined that the elder or vulnerable adult has the capacity to sufficiently understand, make, and communicate responsible decisions about himself or herself.
B. Before approving an agreed order, the judge shall hold an in-chambers, ex parte discussion with the elder or vulnerable adult to:
1. Explain the proposed agreed order;
2. Ensure that the person’s consent to the proposed order is not the result of coercion, threat, duress, fraud, over-reaching, or improper promise on the part of any person;
3. Explain the person’s right to a spokesperson or counsel, at his/her own expense;
4. Explain that the person does not have to agree to the proposed order and that the case will then go to a full hearing on all the issues; and
5. Explain that once the agreed order is signed and entered by the Court, the person must adhere to the order.
C. The in-chambers conversation need not be recorded, but if it is not recorded, the Court shall make a record of it having occurred. If the elder or vulnerable adult wants a friend, family member, or other persons to be present, the judge shall allow it after first speaking alone with the elder or vulnerable adult.
D. If the Court finds that consent to the agreed order was the result of coercion, threat, fraud, over-reaching, duress, or improper promise, or that the elder or vulnerable adult lacked capacity to consent, the agreed order shall be vacated. [Res. 2020-1.]
5.55.110 Order appointing guardian or protective payee.
A. Orders appointing a guardian or protective payees shall be tailored for the elder’s or vulnerable adult’s benefit.
B. The Court shall have broad discretion in fashioning an order that will best meet the elder’s or vulnerable adult’s needs and circumstances, subject to the following provisions:
1. The Court shall identify who shall serve as the guardian or protective payee and shall specify his or her powers and duties, and whether they pertain to the elder’s or vulnerable adult’s person or estate.
2. If the elder or vulnerable adult has named a guardian in a durable power of attorney or has otherwise stated a preference, the Court shall honor the elder’s or vulnerable adult’s choice unless good cause to the contrary is shown.
3. The order shall specify the duration for which a guardian or protective payee is appointed.
4. Where the guardian is not a full guardian of the estate or of the person, the guardian order shall clearly specify duties of the guardian. All rights and responsibilities not assigned to the guardian shall be retained by the elder or vulnerable adult.
5. A guardian or protective payee shall promptly inform the Court and Tribal Social Services if he or she is no longer able, willing, or capable of fulfilling the duties of guardian or protective payee; or of any concerns about the elder’s or vulnerable adult’s health, safety, or welfare.
6. The powers of the guardian or protective payee shall extend only to such areas specifically stated in the findings and order and such powers shall be no more extensive than is necessary to address the specific facts proven by the petitioner.
C. The Court in its discretion may appoint a successor guardian or protective payee.
D. If more than one guardian or protective payee is appointed, the Court shall state whether the duties are to be shared or whether each shall have separate duties, and shall specify the duties of each.
E. The Court shall not make any transfers of lot assignments.
F. The Court Clerk shall provide to the guardian letters of guardian on his or her request. Letters of guardian shall expire one year from the date they are issued, unless otherwise ordered.
G. The Court Clerk shall provide to the Bureau of Indian Affairs a copy of the guardianship order, and copies of annual guardian of the finance reports, where the elder or vulnerable adult has property or funds held in trust by the Office of the Special Trustee for the Bureau of Indian Affairs.
H. The Court shall require the guardian to take an oath of guardian in which he or she swears or affirms that he or she is:
1. Familiar with all statutory and Court-ordered obligations toward the elder or vulnerable adult, and that he or she may be held civilly or criminally liable for any harm to the elder or vulnerable adult resulting from a failure to meet those obligations;
2. Aware that he or she must request the Court for clarification if unsure of whether or not he or she is authorized to take a specific action in regard to the elder or vulnerable adult; and
3. Willing, able, and capable of serving as guardian. [Res. 2020-1.]
5.55.120 Guardian duties and limitations.
A. Absent Court order stating otherwise, the guardian of the estate or protective payee shall prudently and responsibly manage the elder’s or vulnerable adult’s finances and resources, and in particular shall:
1. Open and maintain a guardian account or other type of account approved by the Court for depositing the elder’s or vulnerable adult’s funds, and shall not commingle the elder’s or vulnerable adult’s funds with those belonging to anyone else;
2. Maintain records of the elder’s or vulnerable adult’s finances, to include deposits and withdrawals, earnings, expenditures, and account balances;
3. Maintain financial records as necessary to ensure the elder’s or vulnerable adult’s eligibility for Tribal, Federal, or State benefits to which he or she is entitled;
4. Prepare and file required tax documents; and
5. Ensure the elder or vulnerable adult – or his or her caretaker or guardian of the person – has access to funds to allow him or her to live with dignity, and within his or her financial means.
B. Absent Court order stating otherwise, the guardian of the person shall assume responsibility for maintaining the health, safety, and welfare of the elder or vulnerable adult, and in particular shall:
1. Ensure the elder or vulnerable adult has access to adequate housing, food, medical care, and other necessities, while maintaining continuity with his or her former choices and lifestyle whenever possible;
2. Involve the elder or vulnerable adult in decisions made concerning himself or herself whenever possible, and to the greatest extent possible; and
3. Make a good faith effort to ensure the elder or vulnerable adult has the opportunity for visits with family, and for social, educational, occupational, spiritual, and cultural enrichment and interactions, except where doing so would not be in his or her best interests.
C. The Court may vest guardians with the duty to provide timely informed consent to necessary medical procedures and care, except as set forth below.
D. Limitations. A guardian or protective payee shall not take any of the following actions, unless the Court has entered an order specifically authorizing such action:
1. Enter into any agreement on behalf of the elder or vulnerable adult for the purchase, sale, mortgage, or lease of any real property;
2. Direct or otherwise authorize the purchase or sale of any assets held in trust for the elder or vulnerable adult by the Bureau of Indian Affairs, or by any other trustee;
3. Take out any loan on behalf of the elder or vulnerable adult – such as for purchase of a vehicle, furniture, television, or other item;
4. Placement of the elder or vulnerable adult into a nursing home, or an involuntary mental health or chemical dependency treatment program; or
5. Execute or modify a will, trust, last testament, power of attorney, living will, or advance directive on behalf of the elder or vulnerable adult. [Res. 2020-1.]
5.55.130 Guardian reports.
A. A guardian of the estate shall file with the Court within 60 days of appointment a report detailing the elder’s or vulnerable adult’s income, assets, real and personal property, and cultural or heritage items.
B. Guardians and protective payees shall file reports with the Court at least one time in the first six months of appointment, and at least once every 12 months after that time. These reports shall be filed and served on parties at least 10 days before each review hearing. The Court may in its discretion also require additional reports to be filed. A copy of each report shall be provided to the elder or vulnerable adult. A copy shall also be provided to the Office of the Special Trustee for the Bureau of Indian Affairs, if the elder or vulnerable adult has assets held in trust by the Bureau of Indian Affairs.
C. A guardian of the estate or protective payee report shall include, at minimum, information in regard to:
1. Expenditures made during the reporting period from the elder’s or vulnerable adult’s financial resources, to include receipts or other documentation for all expenditures over the amount of $500.00 – except for regular, ongoing expenses such as rent or mortgage payments;
2. Income to the elder or vulnerable adult during the reporting period;
3. Balance of all of the elder’s or vulnerable adult’s financial resources at the start of the reporting period, and at the end of the reporting period;
4. Any major purchases or expenditures planned to be made using the elder’s or vulnerable adult’s financial resources in the coming reporting year;
5. An estimate of financial resources expected to be expended on behalf of the elder’s or vulnerable adult’s care in the coming year;
6. Trust assets, to include those held in trust by the Office of the Special Trustee for the Bureau of Indian Affairs; and
7. Transfers of any heritage personal property.
D. A guardian of the person report shall include, at minimum, information in regard to:
1. Any changes to the elder’s or vulnerable adult’s place of residence, or major changes to his or her care plan;
2. Information about those assisting with the elder’s or vulnerable adult’s day-to-day care;
3. Information on the elder’s or vulnerable adult’s medical needs and health status, to include hospitalizations, new diagnoses, and any other major changes to the elder’s or vulnerable adult’s health or medical needs;
4. Any planned major medical treatments, and the reasons for them;
5. Contact between the elder or vulnerable adult and his or her family, culture, and community;
6. Any educational, employment, cultural, or other activities the elder or vulnerable adult is engaged in; and
7. Any difficulty the guardian has encountered in caring for the elder or vulnerable adult, or in accessing services on his or her behalf.
E. Where the guardian is a professional or certified guardian the report submitted shall conform to all requirements of the laws or regulations of the governing or certifying body under which he or she is certified, in addition to the above requirements.
F. The guardian or protective payee shall file a report within 60 days of the death of the elder or vulnerable adult, or upon termination of the guardianship for any other reason. The report shall include the same information as required in a guardian report.
1. Where the guardianship has terminated due to the elder’s or vulnerable adult’s death, the report shall also include an inventory of property – to include heritage personal property, and information and documentation regarding final value of the estate, and regarding transfer of remaining resources to the estate of the elder or vulnerable adult.
2. A copy of the final report shall be provided to the Office of Special Trustee for the Bureau of Indian Affairs, where the elder or vulnerable adult had assets held in trust by the Bureau of Indian Affairs. [Res. 2020-1.]
5.55.140 Review hearings.
A. The Court shall review all appointments of a guardian or protective payee at least once in the first six months from the time of appointment and shall continue to set review hearings at least once every 12 months.
B. At each hearing the Court shall review the guardian reports, shall assess whether there continues to be a need for a guardian or protective payee, or whether a less restrictive alternative is appropriate; or may require a guardian to participate in a guardian training program, and may in its discretion modify the guardianship where necessary and in the best interest of the elder or vulnerable adult.
C. The Court in its discretion may set other review hearings, and any party may move the Court to set a hearing.
D. The Court shall set a show cause hearing where a guardian or protective payee fails to provide a required report, or has otherwise failed to fulfill his or her Court-ordered duties.
E. The elder/vulnerable adult shall promptly provide the Court notice of any change of the elder’s or vulnerable adult’s residential or mailing address. The guardian shall seek Court approval prior to any move of the guardian out of the elder’s or vulnerable adult’s current county of residence.
F. Once a guardianship is entered, the obligations and party status of Social Services shall be terminated, unless the Court specifically orders otherwise for good cause shown. [Res. 2020-1.]
5.55.150 Guardian or protective payee shall petition Court for clarification.
The guardian or protective payee shall petition the Court for authority to do any act about which he or she is uncertain of his or her authority. The Court may issue an ex parte order clarifying the guardian’s or protective payee’s authority, or may set the matter for a hearing where necessary. [Res. 2020-1.]
5.55.160 Modification or termination of guardianship.
A. The Court may remove a guardian or protective payee and appoint a replacement whenever necessary for the elder’s or vulnerable adult’s benefit.
B. Any party, Social Services, or person wishing to assume guardian duties may file a motion to request the Court to modify or terminate a guardianship. The Court may also set such a hearing on its own where doing so is necessary to protect and preserve the elder’s or vulnerable adult’s best interests, or where a guardian has failed to fulfill guardian duties.
1. Where there is an allegation of abuse, neglect, financial exploitation, or that the guardian is unable to fulfill guardian duties, the Court shall provide a copy of the motion to Social Services, and Social Services shall investigate the allegations and file a report with the Court within 15 days.
C. Circumstances that may necessitate modification or termination of a guardianship include, but are not limited to:
1. The elder or vulnerable adult has regained capacity, and is no longer in need of a guardian or protective payee;
2. Unavailability of a guardian or protective payee;
3. Where a guardian or protective payee wishes to add a substitute guardian or protective payee; or
4. A major change to the elder’s or vulnerable adult’s needs or living arrangements such that the current guardian or protective payee is no longer able or willing to fulfill guardianship orders, or to meet the needs of the elder or vulnerable adult.
D. A motion to modify or terminate a guardianship shall contain the following information:
1. The name and relationship to the elder or vulnerable adult of the person seeking modification or termination of the guardianship;
2. The specific reasons for why there is a need to modify or terminate the guardianship;
3. The names and qualifications of any proposed new guardian or protective payee; and
4. The proposed plan for the elder’s or vulnerable adult’s care, should the guardianship be modified or terminated.
E. A hearing on the motion shall be set within 35 days of the filing of a motion to modify or terminate a guardianship. A copy of the motion and notice of hearing shall be served on the elder or vulnerable adult, and on all other parties.
F. The Court shall appoint Social Services or a guardian ad litem to investigate and make recommendations as to the modification or termination of the guardianship. Where there is a recommendation for a new guardian to be appointed, Social Services or a guardian ad litem shall file a report which conforms with CTC 5.55.080(C).
G. Any new proposed guardian or protective payee shall submit to the Court information about himself or herself that would normally be included in a petition filed pursuant to CTC 5.55.030, to include proof that he or she is qualified to serve as guardian or protective payee pursuant to CTC 5.55.040. He or she shall also be required to take an oath of guardianship.
H. Generally, a guardianship shall terminate upon the death of the elder or vulnerable adult or upon order of the Court.
I. The Court may appoint the guardian or protective payee to administer the elder’s or vulnerable adult’s estate after death if the elder or vulnerable adult dies intestate. [Res. 2020-1.]
5.55.170 Civil action for reimbursement.
A. The elder or vulnerable adult, or the Tribe on behalf of the elder or vulnerable adult, may bring a civil action in the Court against a person whom the Court has determined under this chapter to have exploited an elder’s or vulnerable adult’s resources or monies, or who by having knowingly failed to fulfill his or her Court-ordered or statutory duties of a guardian or protective payee has caused demonstrable harm to the elder or vulnerable adult. It is presumed that a Court-appointed guardian or protective payee knows of his or her Court-ordered and statutory duties toward the elder or vulnerable adult.
B. Judgments may consist of an order of the Court awarding money damages to be paid to the injured party, or directing the surrender of certain property to the injured party, and may require the party found responsible for having caused the injury to pay the cost of any investigation.
C. The Court may also enter a judgment and order of attachment of per capita payments and/or order of garnishment of other income for non-Tribal members for restitution and costs of the person found to be liable for harm to the elder or vulnerable adult, to the fullest extent allowable under the law. [Res. 2020-1.]