HO-CHUNK NATION CODE (HCC)

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TITLE 4 – CHILDREN, FAMILY, AND ELDER WELFARE CODE

SECTION 1 – ELDER PROTECTION ACT OF 2001

ENACTED BY LEGISLATURE: JANUARY 9, 2001

LAST AMENDED AND RESTATED: AUGUST 8, 2011

CITE AS: 4 HCC § 1

TABLE OF CONTENTS

Chapter I – General Provisions, Policies, and Definitions

1. Authority

2. Purpose

3. Scope

4. Declaration of Policy

5. Definitions

6. Ho-Chunk Nation Division of Children and Family Services

Elder Protection Workers

7. Confidentiality and Penalty

Chapter II – Reporting

8. Duty to Report Abuse, Neglect, Self-Neglect and

Exploitation of an Elder

9. Anonymous Reports

10. Immunity for Reporting

11. Civil Violation and Penalty for Failing to Report

12. Civil Violation and Penalty for a Report Made in

Bad Faith

13. Reports

Chapter III – Investigation

14. Investigations

15. Interference with Investigation and Retaliation –

Civil Penalty

16. Criminal Investigation

Chapter IV – Rights of Parties

17. Rights of Elders

18. Rights of the Accused

Chapter V – Court Process

19. Jurisdiction

20. Petition

21. Hearing

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Chapter VI – Court Orders

22. Orders

23. Elder Protection Order

24. Modification or Termination

25. Violation of Protection Orders

Chapter VII- Elder Protective Restraining Orders- Civil Process

26. Purpose of Elder Protective Civil Restraining Orders

27. General Procedure

28. Petition

29. Temporary Elder Protective Restraining Order

30. Elder Protective Restraining Order

31. Request to Modify Order by Respondent Due to

Lack of Notice

32. Motion to Extend/Terminate/Modify Order

Chapter VIII- Contempt and Severability

33. Disobedience- Contempt

34. Severability

CHAPTER I – GENERAL PROVISIONS, POLICIES, AND DEFINITIONS

1. Authority.

a. Article V, Section 2(a) of the Ho-Chunk Nation Constitution (“Constitution”) grants the

Legislature the power to make laws, including codes, ordinances, resolutions, and statutes.

b. Article V, Section 2(b) of the Constitution grants the Legislature the power to establish

Executive Departments, and to delegate legislative powers to the Executive Branch to be

administered by such Departments in accordance with the law; any Department established by the

Legislature shall be administered by the Executive; the Legislature reserves the power to review

any action taken by virtue of such delegated power.

c. Article V, Section 2(h) of the Constitution grants the Legislature the power to enact all

laws prohibiting and regulating conduct, and imposing penalties upon all persons within the

jurisdiction of the Nation.

d. Article V, Section 2(r) of the Constitution grants the Legislature the power to protect and

foster Ho-Chunk religious freedom, culture, language, and traditions.

e. Article V, Section 2(s) of the Constitution grants the Legislature the power to promote

public health, education, charity, and such other services as may contribute to the social

advancement of the members of the Ho-Chunk Nation.

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f. Article V, Section 2(t) of the Constitution grants the Legislature the power to enact laws

governing law enforcement on lands within the jurisdiction of the Nation.

g. Article V, Section 2(u) of the Constitution grants the Legislature the power to enact laws

to regulate domestic relations of persons within the jurisdiction of the Nation.

h. Article V, Section 2(x) of the Constitution grants the Legislature the power to enact any

other laws, ordinances, resolutions, and statutes necessary to exercise its legislative powers

delegated by the General Council pursuant to Article III including but not limited to the foregoing

list of powers.

2. Purpose. The purpose of this Act is to establish Tribal law to protect the Elders of the HoChunk Nation from abuse, neglect, self-neglect, and exploitation. The Ho-Chunk Nation honors,

respects, and protects its Elders. Elders possess unique and irreplaceable stores of knowledge, skill,

and experience that enhance and enrich the lives of the entire Nation. The interests of the Nation,

now and in the future, are advanced when Elders can be confident they are protected from abuse,

neglect, self-neglect, and exploitation and are free to fully participate in the activities and

proceedings of the Nation.

3. Scope. This Act shall cover Elder abuse, neglect, self-neglect, and exploitation. However, the

Nation recognizes that many Elders suffer the infirmities of aging and are in need of protective

services. Therefore, the Ho-Chunk Nation Children and Family Services (CFS) may refer cases

dealing with adult protective services, to the appropriate State or County agencies or organizations

on a case by case basis until the Ho-Chunk Nation provides an Act to protect those individuals.

4. Declaration of Policy.

a. The dignity and self-reliance of the Nation’s Elders shall be acknowledged and respected

by family members, the community, and employees of the Nation. The rights of each Elder shall

be protected.

b. The Nation further recognizes that Elder abuse, neglect, self-neglect or exploitation, when

the well-being and safety of an Elder is endangered, is serious.

c. The Nation shall establish services and assure their availability to all Elders when in need

of them and to place the least possible restrictions on personal liberty and exercise of rights

consistent with due process and protection from abuse, neglect, self-neglect, and exploitation.

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d. The Legislature shall appropriate and provide adequate funding support as determined by

the CFS program’s needs to ensure the health, safety, and welfare of the Nation’s Elders.

5. Definitions. Terms used in this Act have the following meaning:

a. “Abandonment” means the desertion or willful forsaking of an Elder which may include

foregoing a duty of care.

b. “Abuse” means one or more of the following:

(1) The intentional or negligent infliction of bodily harm, unreasonable confinement, or

intimidation causing mental anguish by any person, including a person having a special

relationship with the Elder, e.g., a spouse, child, or other relative, or a caretaker; or

(2) The infliction of physical, emotional, or mental injury on an Elder, or sexual abuse or

exploitation, including financial exploitation, of an Elder; or

(3) Attempting to cause or causing physical harm, bodily injury, or assault on an Elder or

the Elder’s family or caretaker; or

(4) Subjecting an Elder to deliberate verbal abuse, this may include: insulting, frightening,

humiliating, threatening, and/or demeaning an Elder; or

(5) However, no person shall be deemed to be abused for the sole reason they are being

furnished non-medical remedial treatment by spiritual means through prayer alone in

accordance with a recognized religious method of healing in lieu of medical treatment, or if

the wishes of an Elder’s Do Not Resuscitate (DNR) or Power of Attorney (POA) are being

followed.

c. “Adult At-Risk” means any adult who has a physical or mental condition that substantially

impairs his or her ability to care for his or her needs and who has experienced, is currently

experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or exploitation.

d. “Caretaker” means any of the following:

(1) A person who is required by Tribal law or custom or state law to provide care, services,

or resources to an Elder;

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(2) A person who voluntarily undertakes to provide care, services, or resources to an Elder;

(3) An institution or agency which voluntarily or is required by Tribal law or custom, state

or federal law, or contract to provide care, services, or resources to an Elder;

(4) An employee of any institution or agency specified in paragraph (3), above.

e. “Court” means the Ho-Chunk Nation Trial Court.

f. “Elder” means any Ho-Chunk enrolled member who is sixty (60) years of age or more.

g. “Elder Protection Worker” means an employee of the Nation who is employed to help

Elders.

h. “Emergency” is an unforeseen combination of circumstances that calls for immediate

action without time for full deliberation.

i. “Emotional Abuse” means language or behavior that serves no legitimate purpose and is

intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that

does or reasonably could intimidate, humiliate, threaten frighten, or otherwise harass the individual

to whom the conduct or language is directed.

j. “Exploitation” means the act of taking unjust advantage of an elder for one’s own benefit.

k. “Family” means all of the customary family relationships recognized by the Nation,

including extended family relationships.

l. “Guardian ad Litem” means a person appointed by the Court to represent the best interests

of the Elder.

m. “Good Faith” means an honest belief or purpose and the lack of intent to defraud.

n. “Least Restrictive Alternative” means an approach which allows an Elder independence

and freedom from intrusion consistent with the Elder’s needs by requiring that the least disruptive

method of intervention be used when intervention is necessary to protect the Elder from harm.

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o. “Neglect” means any of the following:

(1) Failure of a caregiver, as evidence by an act, omission, or course of conduct, to

endeavor to secure or maintain adequate care, services, or supervision for an individual

including food, clothing, shelter, or physical or mental health care, and creating significant risk

or danger to the individual physical or mental health; or

(2) The interference with the delivery of necessary services or resources; or

(3) The failure to report abuse, neglect, self-neglect or exploitation of an Elder; or

(4) The failure to provide services or resources essential to the Elder’s practice of his or

her customs, traditions, or religion; or

(5) The abandonment of an Elder by his or her family, guardian, or caretaker.

p. “Physical Abuse” means the intentional or reckless infliction of bodily harm.

q. “Power of Attorney” means a written document signed by an Elder and notarized giving

another person the power to act in conducting the Elder’s business in the name of the Elder. There

are three main types of powers of attorney:

(1) A Power of Attorney for Finances and Property covers all the Elder’s business

activities, for example signing papers, title documents, contracts, or bank accounts;

(2) A Limited Power of Attorney grants powers limited to specific matters, for example

selling a particular piece of real estate or handling specific bank accounts;

(3) A Power of Attorney for Health Care grants powers to individuals to make health care

decisions on an Elder’s behalf should they become incapacitated.

r. “Protective/Preventative Services” may include any of the following:

(1) Outreach; or

(2) Identification of individuals in need of services; or

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(3) Information and referral for services necessary to assist the Elder; or

(4) Coordination of services for individuals; or

(5) Tracking and follow-up; or

(6) Case Management.

s. “Retaliation” means taking any action against an individual for reporting Elder abuse,

neglect, self-neglect, or exploitation, such as:

(1) Threatening the person(s); or

(2) Causing bodily harm; or

(3) Causing termination, suspension, or reprimand by the employer; or

(4) Damaging real or personal property; or

(5) Defaming (libel and/or slander) the person(s); or

(6) Harassing the person(s).

t. “Self-neglect” means a significant danger to an Elder’s physical or mental health because

the Elder is responsible for his or her own care but fails to or is unwilling to obtain adequate care,

including, food, shelter, clothing, or medical or dental care.

u. “Sexual Abuse” means abuse that consists of any kind of non-consensual sexual contact,

including unwanted touching, sexual assault, and battery. It also includes unreasonable behavior

toward an Elder of a sexual nature that causes physical, emotional, or mental injury to an Elder.

v. “Verbal Abuse” means abuse that stems from deliberate oral statements made toward an

Elder which are meant to insult, frighten, humiliate, threaten, and/or to demean an Elder.

6. Ho-Chunk Nation Division of Children and Family Services Elder Protection Workers.

a. Elder Protection Workers shall be employed by CFS and shall execute the duties and

powers enumerated in this Act.

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b. CFS may cooperate with such state and community agencies as necessary to achieve the

purposes of this Act. CFS may negotiate working agreements with other jurisdictions.

c. CFS shall maintain Standard Operating Procedures (SOPs) which implement this Act.

These SOPs may be amended from time to time to keep up with changes in best practices and the

laws of the Ho-Chunk Nation.

d. Duties. An Elder Protection Worker:

(1) Will receive a case from an assigning supervisor;

(2) Will initiate an investigation within twenty-four (24) business hours of the case

assignment of all reported cases of the abuse, neglect, self-neglect, or exploitation of an

Elder;

(3) Will offer services to an Elder;

(4) Will prepare with the Elder a plan for the delivery of services which provide the least

restrictive alternatives consistent with the Elder’s needs;

(5) Will inform the Elder the following:

(a) About the investigation;

(b) That before seeking entry into their home, the Elder has the right to refuse to allow

an Elder Protection Worker into their home; the Elder Protection Worker shall also inform

the Elder of the right of the Elder Protection Worker to seek a warrant to gain access;

(d) That the Elder or the Elder Protection Worker can contact the local jurisdiction

where the suspected abuse, neglect, self-neglect, or exploitation of an Elder occurred about

a possible criminal offense.

7. Confidentiality and Penalty.

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a. Name of Reporter. The name of the person who reports abuse, neglect, self-neglect, or

exploitation as required by this Act is confidential and shall not be released to any person unless

the reporter consents to the release or unless the release is ordered by the Court. The Court may

release the reporter’s name only after notice to the reporter is given, a closed evidentiary hearing

is held, and the need to protect the Elder is found to be greater than the reporter’s right to

confidentiality. The reporter’s name shall be released only to the extent as determined necessary

to protect the Elder.

b. Department Records. Records of an investigation of Elder abuse are confidential unless

ordered to be released pursuant to a court Order. Such records shall be open only to the Elder,

unless the Elder consents to the release in writing. If the Executive Director of the Ho-Chunk

Nation Department of Social Services, law enforcement officers, Court officials, coroner or

medical examiner, or any other person has reason to believe that an Elder died as the result of

abuse or neglect, the Court shall determine who has reasonable cause to have access to such

records.

c. Court Records. Records of a Court hearing regarding Elder abuse, neglect, self-neglect, or

exploitation are confidential. The Court shall keep court records as may be required by the Judge.

Records in Elder cases shall be withheld from public inspection, but the Court records shall be

open to inspection by the Elder, and either the Elder’s private attorney or CFS if the case is brought

by CFS.

d. Penalty. Any person who violates any provision of this section shall be subject to a civil

penalty of up to $100.00 per occurrence. The Court shall assess the penalty after petition, notice,

opportunity for hearing, and a determination that a violation has occurred. In addition, if the

violation is committed by an employee of the Nation, the person shall be subject to appropriate

disciplinary action as allowed in the Nation’s employment laws.

CHAPTER II - REPORTING

8. Duty to Report Abuse, Neglect, Self-Neglect, and Exploitation of an Elder. Any person

who has reasonable cause to suspect that an Elder has been abused, neglected, self-neglected, or

exploited shall immediately report the abuse, neglect, self-neglect, or exploitation to the CFS

Intake staff unless they have a privileged relationship with their patient or client. An individual

with a privileged relationship must disclose information about their patient or client to appropriate

officials if there is an emergency situation. The following individuals have a special duty in

reporting abuse, neglect, self-neglect, or exploitation:

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a. The Elder’s family or caretaker;

b. Any employee or elected official of the Nation;

c. Physician, surgeon, dentist, podiatrist, chiropractor, nurse, dental hygienist, optometrist,

medical examiner, emergency medical technician, paramedic, or other health care provider;

d. Psychiatrist, psychologist, or psychological assistant;

e. Any licensed or unlicensed social worker, professional counselor, or marriage and family

therapist;

f. Person employed in the mental or behavioral health profession;

g. Person employed as a physical therapist, occupational therapist, or the assistants of such

therapists;

h. Law enforcement officer, probation officer, worker in a detention facility, or person

employed in a public agency who is responsible for enforcing statutes and judicial Orders;

i. Judge, attorney, court counselor, clerk of court, or judicial system official or staff.

j. Any persons or agency, including their employees, with fiduciary responsibilities to an

Elder such as accountants, property managers, financial advisors, or financial institutions.

9. Anonymous Reports. Except for those persons in Section 8 b-i, persons reporting Elder abuse,

neglect, self-neglect, or exploitation may remain anonymous, except in the event of a court Order

pursuant to Chapter I, Section 7(a) of this Act.

10. Immunity from Liability. Any person who in good faith reports suspected abuse, neglect,

self-neglect, or exploitation of an Elder shall be immune from any legal action based on that

person’s report.

11. Civil Violation and Penalty for Failing to Report. Any person who is required by this Act

to report suspected Elder abuse, neglect, self-neglect, or exploitation and fails to do so is subject

to civil penalty not to exceed $2,000. The Court shall assess the penalty only after petition, notice,

an opportunity for hearing, and a determination that the person had a mandated duty to report, and

failed to do so, as required by this Act. Further, the person failing to report is subject to any civil

suit brought by or on behalf of the Elder for damages suffered as a result of the failure to report,

notwithstanding any determination by the Court that the person failing to report violated this Act.

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12. Civil Violation and Penalty for a Report Made in Bad Faith. Any person who makes a

report of suspected abuse, neglect, self-neglect, or exploitation knowing it to be false is subject to

a civil penalty not to exceed $2,000. The Court shall assess the penalty only after petition, notice,

an opportunity for hearing, and a determination that the person making the report knew the report

to be false. Any person making a false report is subject to any civil suit for damages brought by or

on behalf of the person(s) named as the Accused in the false report.

13. Reports. Reports of suspected Elder abuse, neglect, self-neglect, or exploitation shall be made

to the CFS Intake Staff. The CFS Intake Staff member who takes an oral report shall immediately

complete a written report. Anonymous reports shall be investigated as required by this Act. The

following information should be part of the written report:

a. The Elder’s name, address or location, and telephone number;

b. The name, address or location, and telephone number of the person(s) or agency suspected

of abusing, neglecting, or exploiting the Elder;

c. The nature and degree of the limitations of the Elder;

d. The name, address or location, and telephone number of the Elder’s caretaker;

e. The name, address or location, and telephone number of witness(s);

f. A description of the acts which are reported as abusive, neglectful, or exploitive;

g. Any other information that the reporter believes might be helpful in establishing abuse,

neglect, self-neglect, or exploitation;

h. The written report should contain the name, address, and telephone number of the reporter

for the purpose of CFS follow-up. Rules of anonymity shall be followed pursuant to Section 9.

CHAPTER III – INVESTIGATION

14. Investigations.

a. The Elder Protection Worker shall initiate an investigation within one (1) business day of

receipt of a report.

b. Written Investigative Report.

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(1) A written investigative report shall be prepared and filed with the CFS Elder Protection

Program. The investigative report will remain on file for a period of five (5) years, even if it is

determined that there is insufficient evidence to pursue any legal action.

(2) When a report of abuse is found to have been made in bad faith, the investigative report

shall be held and maintained as an inactive file for possible use in a civil violation investigation

or proceeding pursuant to this Act.

(3) The investigative report shall contain the pertinent information obtained during the

investigation, including the results of the Elder Protection Worker’s interview, observations

and assessments, and other facts.

(4) If substantiated, CFS may mediate a resolution of the presented situation or may

forward the matter to the Ho-Chunk Nation Department of Justice (DOJ) for legal action.

c. Subpoena of Medical and Financial Records. The Court may issue subpoenas for the

release of medical records and financial records upon motion for expedited consideration by the

DOJ in order to facilitate investigations of reported Elder abuse, neglect, self-neglect, or

exploitation. Upon hearing evidence, the Court must find reasonable grounds to believe that Elder

abuse, neglect, self-neglect, or exploitation is occurring or has occurred in order to issue a

subpoena.

15. Interference with Investigation and Retaliation – Civil Penalty.

a. No person shall interfere intentionally with a lawful investigation of suspected Elder abuse,

neglect, self-neglect, or exploitation.

b. No person shall retaliate by any means against any person who has made a good faith report

of suspected Elder abuse, neglect, self-neglect, or exploitation or who cooperates with an

investigation of suspected Elder abuse, neglect, self-neglect, or exploitation.

c. Any person who violates the provisions of paragraph a or b above shall be stopped from

partaking in such activity and shall be subject to a civil penalty of up to $2,000 per occurrence.

The Court shall assess the penalty only after petition, notice, an opportunity for hearing, and a

determination that either interference or retaliation as set out in this section occurred. Further,

notice of such determination shall be provided to the person’s employer and appropriate licensing

agencies. If the person violating the above provisions is an employee of the Nation, appropriate

disciplinary action shall be imposed consistent with the Nation’s Employment Relations Act, 6

HCC § 5.

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16. Criminal Investigation. Any investigation and any other procedure allowed under this Act

may continue even if a criminal investigation is undertaken. The CFS Elder Protection Program

shall provide its cooperation with law enforcement to ensure the criminal investigation is not

compromised.

CHAPTER IV – RIGHTS OF PARTIES

17. Rights of Elders.

a. An Elder has the right to be informed about an Elder abuse investigation before it begins

unless an emergency exists, in which case, they shall be informed as soon as possible, but not later

than one (1) business day after the investigation begins.

b. An Elder has the right to refuse to accept elder protective services (even if there is good

cause to believe that the Elder has been or is being abused, neglected, self-neglected, or exploited)

provided that the Elder is able to care for himself or herself and/or has the capacity to understand

the nature of the services offered.

c. An Elder has the right to refuse an Elder Protection Worker entrance into their home and

the Elder Protection Worker shall so inform the Elder of this right before seeking entry. The Elder

Protection Worker shall also inform the Elder of the right of the Elder Protection Worker to seek

a warrant to gain access.

d. The Elder has the right to be represented by counsel at his or her own expense at all

proceedings.

(1) If the Elder seeks to proceed independently, then the Elder may retain private counsel

to represent himself or herself at his or her own cost or proceed without counsel (pro se).

(2) If the Elder seeks to have the assistance of the CFS Elder Protection Program in filing

the Petition, then CFS and the DOJ shall make a determination on whether a legal claim exists

and then make a determination on how to proceed.

18. Rights of the Accused.

a. The accused may refuse for themselves, but not for the Elder, services offered by the CFS

Elder Protection Program to help remedy the alleged abuse, neglect, or exploitation.

b. The accused may refuse to allow an Elder Protection Worker into their home and the Elder

Protection Worker shall so inform the alleged accused of this right before seeking entry. The Elder

Protection Worker shall also inform the accused of the right of the Elder Protection Worker to seek

a warrant to gain access.

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c. The accused has the right to be represented by counsel at his or her own expense at all

proceedings.

CHAPTER V- COURT PROCESS

19. Jurisdiction.

a. The Ho-Chunk Nation Trial Court is vested with the fullest jurisdiction permissible under

applicable law. Personal jurisdiction includes, but is not limited to the following people:

(1) Members of the Ho-Chunk Nation; or

(2) Individuals personally served with a Petition or Summons on the Nation's lands; or

(3) Individuals who consent to the jurisdiction of the Court by entering a general appearance

or filing a responsive document or by participating in the proceeding unless participation is for

the purpose of contesting jurisdiction; or

(4) Any individual who resides on the Nation’s lands with a Ho-Chunk Elder who is the subject

of the proceeding; or

(5) Any individual who enters the Nation’s lands to transact with a Ho-Chunk Elder or obtains

access to a Ho-Chunk Elder’s personal property who is the subject of the proceeding.

b. In every action under this Act, the Court shall retain continuing, exclusive jurisdiction over

the Elder to the fullest extent permitted by law.

20. Petition.

a. An Elder may wish to Petition the matter before the Court under the Elder Protection Act.

The Elder has the option of proceeding in one of two ways:

(1) The Elder may file the Petition on his or her own independently. The Elder shall file

the Petition and present facts on his or her own behalf. The Elder may do this through the use

of private counsel at his or her own expense or without counsel (pro se); or

(2) The Elder may seek to be assisted by and through CFS. If mediation or other non-legal

recourse is not successful or feasible, then the DOJ shall file the Petition and present facts on

behalf of the Nation for legal proceedings authorized or required by this Act, provided the case

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is brought by the CFS Elder Protection Program.

b. CFS may file a Petition on behalf of the Elder on its own initiative.

c. The Petition shall contain the following:

(1) The name of the Elder. A supplemental document shall be filed with the Court

containing the address of where the petitioner would like to receive notices from the court, the

petitioner’s telephone number(s), and e-mail address if available. This information shall be

kept confidential.

(2) An allegation that:

(a) The respondent has abused, neglected, or exploited an Elder;

(b) The respondent has threatened to engage in abuse, neglect, or exploitation of an

Elder;

protect the Elder.

(3) The name, mailing address, physical address, age of the accused, and his or her

relationship to the Elder.

(4) A statement of facts that support the allegations presented.

d. Service of Process. Notice of the Elder Protection proceeding shall be made by personal

service of the Petition and Summons at least ten (10) days prior to the Hearing on the Petition.

21. Hearing.

a. Hearing. A hearing on a Petition authorized or required by this Act shall be conducted with

the purpose of protecting the Elder only when necessary and only to the extent shown by the facts

and using the least restrictive alternatives.

(1) All rights, as set out specifically in this Act shall be enforced strictly during all

proceedings.

(2) No hearing shall be held unless notice has been given to the Elder and other interested

parties.

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(3) The Elder and all other interested parties shall have the right and opportunity to be

heard fully and to present evidence.

b. Timing. A Hearing on an Elder Protection Petition shall be held within forty-five (45) days

of the filing of the Petition. If emergency protection is necessary an Elder Protective Restraining

Order may be sought pursuant to the requirements within this Act.

c. Court Proceedings. A proceeding held pursuant to this Act will be closed and confidential.

Persons who may attend are the parties, representatives of CFS, necessary Court officials, and

attorneys for the parties. Other persons may appear only to testify.

d. Burden of Proof. The petitioner must provide one or more of the reasons listed as

justification to bring the matter before the Court. The determination shall be made only after

petition, notice, hearing, and proof by a preponderance of the evidence of abuse, neglect, selfneglect, or exploitation.

CHAPTER VI- COURT ORDERS

22. Orders.

a. Elder Protection Order. The Court may rule from the bench and then issue a written

statement of its findings in support of any Elder Protection Order within thirty (30) days of the

Hearing.

b. No Elder Protection Order shall be issued until ten (10) days after the Petition has been

served on all parties.

23. Elder Protection Order.

a. If the Court determines that an Elder has been abused, neglected, self-neglected, or

exploited, the Court shall issue an Elder Protection Order which provides appropriate protection

for the Elder. Such protection may include, but is not limited to the following:

(1) Removing the individual(s) who abused, neglected, or exploited an Elder from the

Elder’s home immediately; or

(2) Having CFS facilitate a move for the Elder from the place where the abuse, neglect,

self-neglect, or exploitation has taken or is taking place; or

(3) Restraining the individual(s) who abused, neglected, or exploited the Elder from having

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any form of contact with the Elder; or

(4) Restraining the individual(s) who has abused, neglected, or exploited the Elder from

continuing such acts; or

(5) Requiring an Elder’s family or caretaker or any other person with a fiduciary duty to

the Elder to account for the Elder’s funds and property; or

(6) Requiring any individual(s) who has abused, neglected, or exploited an Elder to pay

restitution to the Elder for damages resulting from that individual(s)’s wrongdoing; or

(7) Appointing a representative or a guardian ad litem for the Elder; or

(8) Recommending that a representative payee be named; or

(9) Ordering compensation to be paid to the Elder. Said debt shall be garnished from the

individual(s)’s per capita pursuant to the Nation’s Claims Against Per Capita Ordinance, 2

HCC § 8, or through a general garnishment Order.

24. Modification or Termination.

a. If modification or termination of the Order is needed a Motion shall be filed by a party

seeking the modification or termination.

b. Notice shall then be provided for the Motion Hearing. At the Motion Hearing the burden

of proof will be on the motioning party to prove by clear and convincing evidence that such a

modification or termination is in the best interests of the Elder or necessary for the protection of

the Elder.

25. Violation of Protection Orders. Violation of Court Protection Orders by a respondent may

be punished by a fine of not more than $2,000. Said debt shall be a debt owed to the Nation and

shall be collected as such pursuant to the Claims Against Per Capita Ordinance, 2 HCC § 8, or by

a general garnishment Order.

CHAPTER VII- ELDER PROTECTIVE RESTRAINING ORDERS –

CIVIL PROCESS

26. Purpose of Elder Protective Civil Restraining Orders.

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a. The purpose of authorizing Elder Protective Restraining Orders is to provide Elders with a

process for obtaining restraining orders independent of contacting law enforcement officers to

report a crime. Individuals applying for an Elder Protective Restraining Order should be referred

to law enforcement in the event that an unreported crime has been committed.

b. The purpose of authorizing emergency Elder Protective Restraining Orders to be issued

without prior notice to the respondent is to insure the immediate protection of the Elder.

27. General Procedure.

a. No complaint need be filed and summons served in order to obtain an Elder Protective

Restraining Order. An action under this section may be commenced only by a Petition being served

on the respondent.

b. No filing fees are required for an Elder Protective Restraining Order.

c. The following people may file a Petition for an Elder Protective Restraining Order:

(1) Any person who alleges that he or she is or has been a victim of Elder abuse, neglect,

or exploitation may file a Petition;

(2) Family or household members may file a Petition on behalf of an Elder who has been

a victim of Elder abuse, neglect, or exploitation;

(3) CFS may file a Petition for an Elder Protective Restraining Order on behalf of an Elder

who has been a victim of Elder abuse, neglect, or exploitation.

28. Petition.

a. A Petition for an Elder Protective Restraining Order shall include:

(1) The name of the Elder;

(2) An allegation that:

(a) The respondent has abused, neglected, or exploited an Elder; or

(b) The respondent has threatened to engage in abuse, neglect, or exploitation of an

Elder; or

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of elder protective services and, if continued, will make it difficult to determine whether

abuse, neglect, or exploitation occurred or is likely to reoccur; or

(d) The respondent, based upon prior conduct, may interfere with an elder protection

investigation or the delivery of elder protective services and if interference were to occur

it would be difficult to determine whether abuse, neglect, or exploitation occurred or is

likely to reoccur;

(3) The name, mailing address, physical address, age of the respondent, and his or her

relationship to the Elder.

b. A supplemental document shall be filed with the Court containing the address of where the

petitioner would like to receive notices from the court, the petitioner’s telephone number(s), and

e-mail address if available. This information shall be kept confidential.

c. A signed statement, or separate affidavit filed with the Petition, stating:

(1) In the petitioner’s own words, the specific facts and circumstances of the alleged abuse,

neglect, or exploitation of the Elder, including whether the Elder believes himself or herself to

be in immediate danger of further abuse, neglect, or exploitation; or

(2) The specific facts and circumstances that led the petitioner to believe the respondent

has, or will likely, interfere with either an elder protection investigation or the delivery of elder

protective services.

d. A list of prior civil or criminal temporary restraining orders, injunctions, or no contact

orders in other jurisdictions involving both the Elder and the respondent.

29. Temporary Elder Protective Restraining Order.

a. An Elder Protective Restraining Order Petition shall be filed and served pursuant to

Sections 27 and 28 above.

b. The Court may issue, upon its own motion or the motion of a party, a written, oral, or

telephonic Temporary Elder Protective Restraining Order without notice to an alleged perpetrator

when the Court finds reasonable cause to believe:

(1) That the Elder is in immediate danger based on credible evidence that the respondent

has or is likely to interfere with an elder protection investigation or the delivery of elder

protective services; and

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(2) That prior notice is likely to increase the danger to the Elder or other family or

household member(s) or will impede upon an elder protection investigation or the delivery of

elder protective services.

c. The Court may grant the following relief in a Temporary Elder Protective Restraining

Order:

(1) Order the respondent to not commit or threaten to commit further acts of abuse, neglect,

or exploitation of an Elder; or

(2) Order the respondent to not contact, harass, stalk, telephone, or otherwise communicate

with the Elder, either directly or indirectly; or

(3) Order the respondent to avoid the residence of the Elder or any other location

temporarily occupied by the Elder, or both; or

(4) Order the respondent not to interfere with the investigation of abuse, neglect, or

exploitation of an Elder, the provision of services to the Elder, or otherwise harass or intimidate

CFS workers or other individuals employed to carry out the goals of this subsection; or

(5) Order such other relief as the Court deems necessary to protect and provide for the

safety of the Elder and any designated family or household member(s).

d. A Temporary Elder Protective Restraining Order is in effect until a hearing is held on the

issuance of an Elder Protective Restraining Order pursuant to this Chapter.

e. Following entry of a Temporary Elder Protective Restraining Order, the Court shall:

(1) Set a date for a hearing to be held within fifteen (15) days after entry of a Temporary

Elder Protective Restraining Order.

(a) The time for hearing may be extended upon the written consent of the parties or

extended once for an additional fifteen (15) days upon the finding that the respondent was

not served with a copy of the Temporary Elder Protective Restraining Order despite due

diligence.

(2) Cause the Temporary Order to be served upon the respondent.

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(3) Transmit a copy of the Temporary Order to any additional, appropriate law

enforcement agencies or other agencies designated by the petitioner.

(4) The Court shall explain the contents of the Temporary Order to the Elder.

30. Elder Protective Restraining Order.

a. An Elder Protective Restraining Order Petition shall be filed and served pursuant to

Sections 27 and 28 above.

b. After the hearing on the Petition, whether or not the respondent appears, if the judge finds

reasonable cause to believe that neglect, abuse, or exploitation of an Elder has occurred, is likely

to occur, or may reoccur the Court may issue a non-temporary Elder Protective Restraining Order.

c. The Court may grant the following relief in an Elder Protective Restraining Order:

(1) Grant the relief as set forth in sections 29c (1) through (3) above; or

(2) Prohibit the respondent from harassing or intimidating CFS workers or other

individuals employed to carry out the goals of this subsection; or

(3) Prohibit the respondent from intentionally preventing a CFS Elder Protection Worker

from meeting, communicating, or being in visual or audio contact with the Elder; or

(4) Order any other relief deemed necessary and consistent with the purposes of this Act

or any Traditional Cultural Disposition that may be consistent with and will reinforce the

customs and traditions of the community.

d. If the Court issues an Elder Protective Restraining Order under this section the Court shall:

(1) Cause the non-emergency Order to be served on any of the parties who were not

present;

(2) Make reasonable efforts to insure that the Elder Protective Restraining Order is

understood by the Elder and the respondent, if present; and

(3) Transmit a copy of the Elder Protective Restraining Order to any additional appropriate

law enforcement agencies or other agencies designated by the Elder.

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e. An Elder Protective Restraining Order issued pursuant to this section is effective according

to its terms, but for not more than five (5) years.

(1) An Elder Protective Restraining Order may be renewed or rescinded by the Court prior

to expiration pursuant to this chapter.

31. Request to Modify Order by Respondent Due to Lack of Notice.

a. The respondent may request modification of an Elder Protective Restraining Order where

he or she can show by a preponderance of the evidence that he or she did not receive adequate

notice of the hearing for an Elder Protective Restraining Order.

b. Upon receiving the respondent’s request, the Court shall set a hearing as soon as

practicable, but not later than fifteen (15) days after the next day on which the Court is in session

following the filing of the respondent’s request. The Court Clerks shall send notice to the petitioner

that the respondent is seeking a modification of the order.

c. The purpose of the hearing shall be for the Court to consider whether any less restrictive

alternatives may be appropriate under the circumstances. The Court may modify an Order where

the Order causes an unreasonable hardship upon the respondent, provided that the safety of the

Elder or any family or household member protected by the Order is not jeopardized and remains

the primary consideration.

32. Motion to Extend/Terminate/Modify Order.

a. A Motion to extend, terminate, or modify an Elder Protective Restraining Order shall

include:

(1) The name of the Elder;

(2) An allegation that:

(a) the respondent has abused, neglected, or exploited an Elder; or

(b) the respondent has threatened to engage in abuse, neglect, or exploitation of an

Elder; or

of elder protective services and, if continued, will make it difficult to determine whether

abuse, neglect, or exploitation occurred or is likely to reoccur; or

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(d) the respondent, based upon prior conduct, may interfere with an elder protection

investigation or the delivery of elder protective services and if interference were to occur

it would be difficult to determine whether abuse, neglect, or exploitation occurred or is

likely to reoccur.

(3) The name, mailing address, physical address, age of the respondent, and his or her

relationship to the Elder.

b. If the respondent is filing a Motion the Court Clerk shall send notice to the petitioner that

the respondent is seeking a modification of the Order.

c. A signed statement or separate affidavit filed with the Motion stating in the movant’s own

words, the specific facts and circumstances that lead the movant to believe an extension,

termination, or other modification(s) is warranted.

d. After the hearing on the Motion, whether or not the non-movant appears, if the judge finds

reasonable cause to believe that a modification, termination, or extension is necessary, the Court

shall:

(1) Cause the modified Order, or Termination Order, to be served on any of the parties who

were not present;

(2) Make reasonable efforts to insure that the modified Elder Protective Restraining Order

is understood by the Elder and the respondent, if present; and

(3) Transmit a copy of the modified Elder Protective Restraining Order, or Termination

Order, to any additional appropriate law enforcement agencies or other agencies designated by

the Elder.

CHAPTER VIII- CONTEMPT AND SEVERABILITY

33. Disobedience – Contempt.

a. Any person summoned as herein provided, whom, without reasonable cause fails to appear

may be proceeded against for contempt of court pursuant to the Ho-Chunk Nation Contempt

Ordinance and the Court may cause a bench warrant to be issued to produce such a person in Court.

b. No one attending or testifying at an Elder Protection proceeding shall reveal information

about the proceeding unless ordered to do so pursuant to a Court Order. Any person who violates

this provision shall be subject to civil penalty of up to $100.00 per occurrence. The Court shall

assess the penalty after petition, notice, opportunity for hearing, and a determination that a

violation has occurred. In addition, if the violation is committed by an employee of the Nation, the

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person shall be subject to appropriate disciplinary action as allowed in the Nation’s Employment

Relations Act, 6 HCC § 5.

c. Harassment and intimidation of judicial officers, Department of Social Services staff,

service processors, guardians ad litem, witnesses, and attorneys who are employed to carry out the

goals of this Act may be grounds for contempt. Such behavior shall be classified as an obstruction

of the authority, process, or order of the Court.

34. Severability. If any part or parts, or application of any part of this Act is held invalid, such

holding shall not affect the validity of the remaining parts of this Act.

Legislative History:

6/19/00 Draft Elder Protection Act reviewed by Tribal Aging Unit (TAU) Advisory Board.

7/12/00 Draft Elder Protection Act reviewed by Administration Committee.

7/19/00 Draft Elder Protection Act reviewed/approved by TAU Advisory Board.

9/13/00 Draft Act reviewed by Administration Committee and forwarded to full Legislature.

9/19/00 Legislature posts for 45-day Public Review period.

11/14/00 Final review and comments by TAU Advisory Board.

1/9/01 Enacted by Legislative Resolution 01/09/01B.

3/3/04 Draft of Amended Act sent out for 45-day Public Review.

5/4/04 Amended and Restated by Legislative Resolution 5/4/04E regarding the issuance of subpoenas by the Trial

Court.

3/22/11 Legislative Resolution 3-22-11 A places Elder Protection Act of 2001 out for forty-five day public

comment.

5/17/11 Legislature makes motion to extend Public Review another (30) days per the TAU Elder’s Advisory Board

request.

8/8/11 Legislative Resolution 08-08-11F adopts the following amendments: Ch. I § 5 b. to include the term

“financial Exploitation” in the definition of Abuse; Ch. II § 8 adding “j”, Ch. V § 21 d. changing “clear and

convincing” to “a preponderance of the evidence”.

1/28/25 Technical Correction to the Last Amended and Restated Date to August 8, 2011.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.