Enacted by Resolution No. 08-22-2024-07.

Ordinance No. 4.06

Enacted by Resolution No. 08-22-2024-07.

Hoh Tribal Code Title 4

Family Relations

Chapter 4.06 Elder and Vulnerable Adult Protection

§ 4.06.010 Purpose

(1)

Consistent with the values of the Hoh Indian Tribe to care for elders and vulnerable adults

in our community, the purpose of this chapter is to prevent or correct the abuse, neglect, and

exploitation of tribal elders and vulnerable adults who come within the jurisdiction of the Hoh

Indian Tribe.

(2)

The Hoh Tribal Business Committee finds that elders and vulnerable adults may be

subjected to abuse, neglect, exploitation, or abandonment and that there are a number of adults

who lack the ability to perform or obtain those services necessary to maintain or establish their

well-being.

(3)

It is the intent of the Business Committee to prevent or remedy the abuse, neglect,

exploitation, or abandonment of elders and vulnerable adults who have a functional, mental, or

physical inability to care for or protect themselves, or who suffer from decreased mental capacity

or chronic substance abuse causing decreased mental capacity, and to provide these persons with

the protection of the Hoh Tribal Court.

(4)

The Business Committee finds that it is in the best interest of the public health, safety, and

welfare of the Hoh Reservation community to provide a procedure for identifying elders and

vulnerable persons requiring protection and providing services and remedies necessary for their

wellbeing.

§ 4.06.020 Policy

Elders are one of the most valuable custodians of the Hoh Indian Tribe’s history, traditions, and

culture. It is in the interest of the health, safety and welfare of the Hoh Indian Tribe and its people

to provide procedures for identifying elders and vulnerable adults who are victims of abuse,

neglect, or exploitation, and to provide remedies and other services in these situations. This chapter

shall in all cases be implemented in a manner which least interferes with individual rights, and

which most respects Tribal culture.

§ 4.06.030 Jurisdiction of the Tribal Court

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(1)

The Hoh Tribal Court shall have jurisdiction over any proceeding arising under this chapter

and/or actions arising within the exterior boundaries of the Hoh Reservation and trust lands

affecting Hoh Tribal members and their spouses. In addition to any other method provided by

statute, personal jurisdiction may be acquired by personal service of summons outside the

Reservation or by service in accordance with § 2.02.090 of the Civil Procedure Ordinance.

(2)

The Hoh Tribal Court shall have personal jurisdiction over individuals as enumerated in §

2.01.090 of the Tribal Court Ordinance. That personal jurisdiction includes but is not limited to all

members of the Hoh Tribe, all persons who are domiciled or residents within, or served with

process within, or commit a tortious act within, the territorial jurisdiction of the courts, and also

over all persons who consent to the jurisdiction of the tribal courts.

(3)

Consistent with Section 4.106 of the Tribal Member Distribution Ordinance, the Hoh

Tribal Court shall have exclusive jurisdiction to resolve disputes concerning the allocation of net

gaming revenues and the distribution of per capita funds.

§ 4.06.040 Scope

There are elders and vulnerable adults in the Hoh Tribal community who are at risk of exploitation,

abuse, or neglect. The purpose of this Chapter is to protect these persons through a system of:

(1)

Reporting exploitation, abuse or neglect;

(2)

Investigating reports of exploitation, abuse or neglect;

(3)

Providing services and filing protection orders for elders and vulnerable adults in need of

protection against exploitation, abuse or neglect; and

(4)

Limited or full guardianship.

§ 4.06.050 Civil Nature of Chapter and Violations

This chapter is civil in nature. Any person who knowingly violates an order issued under this

chapter or violates any other provision of this chapter, after notice and hearing, may be assessed a

penalty not to exceed $500.00. Criminal proceedings may run concurrently with any action under

this chapter, which occurs in the course of elder or vulnerable adult exploitation, abuse or neglect.

§ 4.06.060 Standard of Proof

Unless stated otherwise, the standard of proof in all protection order proceedings and guardianship

proceedings under this chapter shall be a preponderance of the evidence.

§ 4.06.070 Definitions

Terms under this Chapter shall be liberally construed so as not to limit the jurisdiction of the Court

over elders and vulnerable adults, and to facilitate the authority of the Court to act to protect the

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interests of these persons. When interpreting terms not defined by this chapter, the Court shall take

into consideration Tribal laws and customs.

(1)

“Abandonment” means any action or inaction by a person or entity with a duty of care for

an elder or a vulnerable adult that leaves the elder or vulnerable person without the means or ability

to obtain essential services.

(2)

“Abuse” means action or inaction which threatens or actually causes physical or mental

mistreatment or injury. Abuse includes but is not limited to:

(a)

Infliction of pain or injury;

(b)

Infliction of mental pain or psychological injury;

(c)

Unreasonable confinement;

(d)

Unreasonable restrictions on activities, including cultural activities;

(e)

Intimidation, meaning to say or do something in such a way as to frighten, or

willfully placing another in fear of harm by coercion, extortion or duress;

(f)

Humiliation, threats, or harsh language that results in physical harm or

unreasonable emotion or psychological stress;

(g)

Sexual abuse, which includes any type of contact with an elder or vulnerable adult

for sexual gratification without the person’s freely given consent;

(h)

Neglecting or deserting a person you are responsible for; responsibility may be

determined with a duty through a Court order, or through holding oneself out to the

community or person’s family as assuming the responsibility of caring for the person;

(i)

Taking or misusing a person’s property, medication, or money without their

consent.

(3)

“Caregiver” means:

(a)

Any person who is required by Tribal law, or State law, if applicable, to provide

services or resources to an elder or vulnerable adult;

(b)

Any person who volunteers or is paid to provide services or resources to an elder

or vulnerable adult;

(c)

An institution or agency and any employee of an institution or agency who is

required by Tribal law or customs, State law, if applicable, or Federal law, or who is

required under any other agreement, to provide services or resources to an elder or

vulnerable adult; and

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(d)

Any person who holds oneself out to the community or elder’s or vulnerable adult’s

family as assuming the responsibility of caring for the elder or vulnerable adult.

(4)

“Consent” means agreement given without intimidation or coercion by a person with the

capacity to make the agreement.

(5)

“Elder” or “Tribal elder” means a Hoh Tribal member or their spouse who is 55 years of

age or older.

(6)

“Elder protection caseworker” or “caseworker” or “elder protection team” is the Tribal

authority charged with the investigation, protection and case plan of elders and vulnerable adults

within the jurisdiction of the Hoh Indian Tribe.

(7)

“Emergency” is a situation in which an elder or vulnerable adult is in imminent danger of

harm.

(8)

“Essential requirements for physical health and safety” means the health care, food, shelter,

clothing, personal hygiene, and protection without which physical injury or illness is more likely

than not to occur.

(9)

“Exploitation” means the unauthorized or improper use of an elder’s or vulnerable adult’s

person or resources, or the failure to use these person’s resources for their benefit or according to

the person’s wishes. Exploitation includes but is not limited to:

(a)

Any unauthorized use or occupation of the person’s residence, property, utilities

services, food, food assistance benefits, or money, to include but not limited to cash,

checks, credit cards, debit cards, bank accounts, and disbursements of tribal funds;

(b)

Any use of the person’s resources that exceeds the authorization he/she has given;

(c)

Unreasonable imposition on the person’s time or resources, such as leaving children

with the person for extended periods without the person’s consent or when the person

cannot adequately care for both the children and him/herself at the same time; or

(d)

Misuse of a power of attorney to obtain resources of the person for personal benefit.

(10) “Family” means any member of the elder’s or vulnerable adult’s nuclear family that lives

on or near the Hoh Indian Reservation and trust lands. For purposes of this chapter, a “nuclear

family” is defined as a social unit composed of father, mother, and children.

(11) “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.

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(12) “Incapacitated person” means a person whose ability to receive and evaluate information

or to make and communicate decisions is impaired to the extent the person lacks the ability to

provide the essential requirements for their own physical health or safety and that they are at

significant risk of personal harm, or that they are unable to manage their financial affairs, without

Court-ordered assistance.

(13)

“Imminent danger or harm” means a certain peril, immediate, and impending danger. It is

highly probable in a situation, as opposed to remote or contingent. See definition of “emergency”

above.

(14) “Interested person” means a person who demonstrates to the Court’s satisfaction that the

person is interested in the welfare of the elder or vulnerable adult, that the person has a good faith

belief that the Court’s intervention is necessary, and that the person is unable, due to incapacity,

undue influence, or duress at the time the petition is filed, to protect his or her own interests.

(15) “Least restrictive manner” means the approach to providing services or resources that

allows an elder or vulnerable adult the maximum independence and freedom from intrusion

consistent with the person’s needs by requiring that the method of intervention with the least

impact on the elder’s or vulnerable adult’s autonomy be used when intervention is necessary and

that only those services or resources that are reasonably necessary to protect the person are

provided.

(16) “Neglect” means the failure of a caregiver to provide for the basic needs of an elder or

vulnerable adult by not supplying adequate resources, services, or supervision necessary to

maintain the person’s physical and mental health, exploitation, or by interfering with the delivery

of such resources or services. Such resources and services include but are not limited to shelter,

food, clothing, medication, medical services, and personal care such as assistance with hygiene

and dressing. Neglect is also failing to take appropriate steps to prevent physical or psychological

pain or injury inflicted upon an elder or vulnerable adult by a third party. Neglect includes the

person’s own inability to provide for his or her own basic needs.

(17) “Respondent” means the party on the other side. The respondent may be the elder,

vulnerable adult, or other persons ordered by the Court to perform or restrain from committing

certain acts.

(18) “Retaliation” means intimidating or threatening a reporter of abuse or a reporter’s family

in any way; physically harming a reporter or a reporter’s family; causing a reporter or a member

of a reporter’s family to be terminated, suspended, or reprimanded by an employer; or damaging

the real or personal property of a reporter or a reporter’s family.

(19) “Tribe” or “Tribal” means and refers to the Hoh Indian Tribe, including but not limited to

any branch, office, department, agency, commission, utility, authority, instrumentality, or other

entity of the Tribe.

(20) “Vulnerable adult” means a person 18 years of age or older who has the functional, mental,

or physical inability to care for himself or herself. “Vulnerable adult” shall include:

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(a)

A person found incapacitated or adult person who is eligible for the appointment of

a guardian under this code; or

(b)

A person who has a disability attributable to intellectual disability, cerebral palsy,

epilepsy, autism, or another neurological or other condition of an individual found by a

physician to be closely related to intellectual disability, which disability originates before

the individual attains age 18, which has continued or can be expected to continue

indefinitely, and which constitutes a substantial handicap to the individual. The Tribe may

adopt criteria which define neurological or other conditions under this subsection in a way

that is not limited to intelligence quotient scores as the sole determinant of these conditions;

or

(c)

A person admitted to any long-term facility or receiving services from health,

hospice, or home care agencies locating or operating or providing care to persons on the

Hoh Indian Reservation.

§ 4.06.080 Transfer of Jurisdiction

It shall be the policy of the Tribe to request transfer of a case to Tribal Court involving an elder or

vulnerable adult protection proceeding in State Court, except when good cause exists to the

contrary. Service and notice requirements must be in accordance with requirements under §

2.02.090 of the Civil Procedure Ordinance.

§ 4.06.090 Duty to Report Abuse, Neglect, or Exploitation

(1)

Confidentiality. The identity of a person who in good faith reports suspected elder or

vulnerable adult abuse, neglect, or exploitation is confidential and shall not be released unless the

reporter consents or the Hoh Tribal Court orders the release because it finds, after notice to the

reporter and a closed hearing, that the need to protect the elder outweighs the reporter’s interest in

confidentiality. This shall include any statements or affidavits written by the reporter.

(2)

Professionals who know or have reason to suspect elder or vulnerable adult abuse,

exploitation or neglect are required to report to the designated Tribal or State authority, if they

know or have reason to believe mistreatment of an elder has occurred. Those persons include but

are not limited to:

(a)

A caregiver;

(b)

An elected official of the Hoh Indian Tribe;

(c)

Any employee of the Hoh Indian Tribe;

(d)

Any medical doctor or physical therapist, including but not limited to a physician,

osteopath, chiropractor, podiatrist, coroner, acupuncturist, naturopathic doctor, or medical

examiner;

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(e)

A nurse, physician’s assistant or health aide;

(f)

A dentist or dental hygienist;

(g)

Elder and vulnerable adult program services case/social worker, or elder services

provider;

(h)

Any mental health practitioner or counselor;

(i)

A law enforcement officer;

(j)

Any person with a fiduciary duty to the elder or vulnerable adult, including but not

limited to an accountant, guardian, housing inspector, or property manager; and

(k)

Judge of the Hoh Tribal Court, prosecutor, attorney, or probation officer.

(3)

The Hoh Indian Tribe through its case manager(s) may conduct ongoing case planning and

consultation with those persons or agencies required to report under this section and with

consultants designated by the Hoh Indian Tribe.

(4)

Tribal agencies, departments, and programs, including the Hoh health clinic, shall provide

reports, files, medical records, welfare check reports, and any other relevant information to the

case manager(s) or other designated official during the investigation of alleged abuse, neglect, or

exploitation of an elder or vulnerable adult in a timely manner.

(5)

Persons exchanging information under subsection (4) of this section shall not further

disseminate or release the information except as authorized by Tribal, State or Federal statute.

Persons in violation of this section may be assessed a civil penalty, after notice and hearing, an

amount not to exceed $500.00.

§ 4.06.100 Consequences of Reporting

(1)

Good Faith. Any person who in good faith reports suspected abuse, neglect, or exploitation,

is immune from any civil suit or criminal charges based on the report.

(2)

Bad Faith. Any person who makes a report of abuse, neglect, or exploitation in bad faith

knowing the facts reported are false or misleading may, after notice and hearing, be assessed a

civil penalty in an amount not to exceed $500.00. A person who gives a bad faith report is also

subject to (a) civil suit brought by or on behalf of the person(s) named as suspected abusers for

damages suffered as a result of the report and (b) any other sanctions available to the Court.

§ 4.06.110 Investigation and Written Reports

(1)

Investigation. The caseworker shall promptly and thoroughly investigate a report of

suspected abuse, neglect, or exploitation to determine whether the elder or vulnerable adult needs

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protective services. This investigation may include a coordinated procedure using personnel from

the Hoh Tribal Police Department or designated Hoh Tribal personnel. If the initial report or

referral indicates that the elder or vulnerable adult may be in imminent danger of serious harm, the

Hoh Police Department shall endeavor to conduct an initial investigation within 24 hours with a

follow-up report to be written by the caseworker. This report may include statements of others, or

any other materials or investigative reports obtained during an investigation. If the initial report or

referral to the Hoh Police Department indicates that the elder or vulnerable adult is not in imminent

danger of serious harm, the initial investigation will be conducted within 15 days. The

investigation shall include information such as:

(a)

Personal interviews with the elder or vulnerable adult, their spouse, their children,

and other persons or respondents living in their residence, people suspected of committing

the acts reported, employees of agencies with knowledge of the person’s circumstances,

and/or any other person who may have relevant information;

(b)

Medical records to the extent possible and any other evidence of abuse, neglect, or

exploitation;

(c)

Assessment of the person’s living conditions, using the Hoh Tribe’s general

housing standards; and

(d)

Any other observations or documentation that may assist in the completion of an

accurate report.

(2)

Written Report. The caseworker shall prepare a written report of any investigation and keep

it on file for five years, even if the caseworker or legal representative determines that abuse,

neglect, or exploitation has not occurred in the reported instance. Upon the death of the person,

records must be destroyed within one year unless there is an ongoing criminal

investigation/proceeding or a probate action still pending, at which time the records will remain

on file with the Court until these actions are concluded. The report shall contain the results of

interviews, observations and all other information obtained in subsection (1) of this section, and:

(a)

The person’s name, address or location, and telephone number;

(b)

The name, address or location, and telephone numbers of the person(s) suspected

of abusing, neglecting, or exploiting the person;

(c)

The current condition of the person, including the suspected nature and degree of

incapacity of the person, if any;

(d)

The name, address or location, and telephone numbers of any witness(es);

(e)

The name, address or location, and telephone numbers of the elder’s caregiver;

(f)

A description of the acts thought to be abuse, neglect, or exploitation; and

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(g)

Any other information the reporter believes might be helpful in determining abuse,

neglect, or exploitation.

(3)

Investigative Reports/Information. If the initial investigation indicates that the elder or

vulnerable adult has been the victim of abuse, neglect, or exploitation and that the elder or

vulnerable adult may be in imminent danger of serious harm or is currently the victim of abuse,

neglect, or exploitation, the caseworker shall petition the Court for an ex parte order of protection

under the procedures of this chapter.

(4)

Elder and Vulnerable Adult Rights. If the elder or vulnerable adult made the initial report

or if the elder or vulnerable adult requests protective services, they retain their right to be heard

regardless of whether the petition is initiated with the Hoh Tribal Court or who initiates the

petition. The Tribe shall maintain its duties and responsibilities under this chapter regardless of

whether a person decides that he or she does not wish to pursue a hearing or file a petition with the

Hoh Tribal Court.

(5)

Confidentiality. All records, reports, affidavits, or statements of investigation are

confidential and may be viewed only by the caseworker, the Hoh Tribal Court, Hoh Tribal Police

Officer(s), the Hoh Attorney, the Hoh Prosecuting Attorney, parties to the particular hearing before

the Hoh Tribal Court, and those persons the Hoh Tribal Court determines have reasonable cause

to view the information alleged in the petition.

(6)

Hoh Police Department/Law Enforcement. If an initial report of harm is filed during hours

the caseworker or designated Tribal personnel is not available and if it appears that the elder may

be in imminent danger of serious harm, law enforcement shall investigate promptly and perform

the duties to protect the elder or vulnerable adult to the extent possible and necessary.

(7)

Legal Basis for Welfare Check. The caseworker and/or Hoh Police Officer(s) shall seek

consent for entry into the elder’s residence for investigations into alleged elder abuse or neglect in

situations where there is reasonable cause to believe that a person is an elder or vulnerable adult

and is or has been abused, neglected, exploited, or abandoned. The Hoh Police Officer may seek

an investigative subpoena from Tribal Court as provided in § 2.01.550 of the Tribal Court

Ordinance.

§ 4.06.120 Elder and Vulnerable Adult Protective Services

Protective services will be provided through the caseworker(s) on a voluntary basis when requested

by a person who is determined by the appropriate personnel to be in need of services.

§ 4.06.130 Rights of

Caregivers/Guardians

Elders

and

Vulnerable

Adults,

Family

and

The elder or vulnerable adult, if appropriate, and their nuclear family, and caregiver or guardian,

if not persons being investigated for alleged abuse, neglect, or exploitation, may be informed of

an investigation before it begins unless it is an emergency.

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§ 4.06.140 Additional Remedies for the Court

Unless otherwise provided by this chapter, nothing in this chapter shall be deemed to preclude the

Tribal Court, to the extent authorized by Tribal law, from:

(1)

Issuing an injunction, temporary restraining order, or similar relief by ordering a

respondent to temporarily or permanently refrain from conducting the acts or actions that gave rise

to a complaint under this chapter;

(2)

Ordering the respondent to pay compensation or restitution to an individual or any other

entity injured by the actions of the respondent; or

(3)

Imposing any other civil or criminal remedy for violations of Tribal law or regulations.

§ 4.06.150 Preventative Measures

The Tribe may attempt the following listed below in lieu of filing a petition with the Court to

ensure safety of the elder or vulnerable adult when not at risk of imminent harm. The Tribe is not

required to take these preventative measures if the Tribe determines that taking these efforts would

be futile:

(1)

Family Group Conference. The Tribe may hold a family meeting to put in place a safety

plan to ensure safety of the person and protection of finances and property. Such plan may involve

agreed removal of the person from their current situation. This family group conference is designed

to empower families by making them an integral part of the decision-making and planning process.

This model promotes self-sufficiency and positive lifestyle choices. It is private, confidential and

completely voluntary. One person may be appointed from the elder protection team as the mediator

and will help facilitate a purposeful and directed conversation in which family members are

encouraged to express their interests and concerns. Meetings are informal and are held in locations

which meet the family’s needs, including, but not limited to, private homes, mediators’ offices and

senior living facilities. In this process, both the family members and service providers identify the

needs of the family and develop a safety plan that recognizes and builds on their strengths. A safety

plan will be developed as described below, as a result of the family group conference.

(2)

Safety Plan Otherwise. A safety plan to prevent filing of a protection order may be set forth

in writing, including any conditions or requirements to be performed, and over a fixed time period.

The elder or vulnerable adult, their family, and their caregiver, and any other necessary persons

shall sign the voluntary safety plan agreement. If the safety plan is not followed, the Tribe may

immediately file for an ex parte protection order in accordance with this chapter.

§ 4.06.160 Elder and Vulnerable Adult Protection Order

(1)

The Tribe, in its discretion, may seek the relief by filing a petition for a protection order

with the Hoh Tribal Court on behalf of an elder or vulnerable adult after the completion of an

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investigation and written report that provides support for a finding of probable cause that the elder

or vulnerable adult is being abused, neglected, or exploited in accordance with this chapter.

(2)

Any elder, vulnerable adult, or interested person may seek relief for themselves under this

chapter by filing a petition with Hoh Tribal Court if there is evidence to support a finding of

probable cause that the elder or vulnerable adult is being abused, neglected, or exploited. If the

Court issues an ex parte protection order upon a finding of probable cause that an elder or

vulnerable adult has been or is likely to be abused, neglected, or exploited, the Court shall give

notice and provide a copy of the protection order to the appropriate elder protection caseworker

who will then investigate and offer services as required under this chapter.

(3)

Petition. The petition shall include the name and interest of the petitioner or the Tribe; the

name and address or location of the person believed to be in an emergency situation; a description

of the person’s situation; the proposed protective services; attempts to get the person’s consent for

protection; and any other facts that will assist the Hoh Tribal Court in determining whether an

emergency exists.

(4)

Required Findings.

(a)

Emergency. The Hoh Tribal Court shall issue an ex parte, emergency protection

order without notice or hearing if:

(i)

The Court has probable cause to believe that the petitioner is an elder or

vulnerable adult in need of protection and without an order is in imminent danger

of harm and/or the elder or vulnerable adult has been a victim of abuse, neglect, or

exploitation; or

(ii)

The petitioner, the Tribe or interested person establishes probable cause that

the elder or vulnerable adult is in imminent danger of harm and the person has been

a victim of abuse, neglect, or exploitation.

(5)

Preliminary Hearing. The Hoh Tribal Court shall hold a preliminary hearing on the petition

within five days, excluding weekends and holidays. The elder, vulnerable adult, or other

respondents shall receive notice of the hearing and be given the opportunity to be heard. The ex

parte protection order shall state the date and time of the preliminary hearing.

(6)

Service. The elder or vulnerable adult, guardian (if applicable) and other respondents

(persons being restrained from the elder or vulnerable adult) shall be served the ex parte protection

order and the petition (or facts) alleging that an elder or vulnerable adult is in need of a protection

order. Confidential information contained in the petition shall be omitted or redacted. Service shall

be in accordance with the service provisions under § 2.02.090 of the Civil Procedure Ordinance.

(7)

Full Hearing. A full hearing shall be set for no later than 35 days from date of the

preliminary hearing under this section. At the hearing, the protection order shall be extended for a

period of time not to exceed one year if the Court finds by a preponderance of evidence that the

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order is necessary to protect the elder’s or vulnerable adult’s health, safety or welfare. A review

hearing shall be scheduled within six months of this hearing.

(8)

Denial. If the Hoh Tribal Court declines to issue an ex parte order of protection, the Court

shall state the particular reason for the Hoh Tribal Court’s denial. The petitioner may request a

hearing on the denial and the Court will set a hearing within 72 hours.

(9)

Relief. The Hoh Tribal Court may order the following relief:

(a)

The Hoh Tribal Court shall require the caseworker to develop and administer a

protection plan. Emergency services shall include only those services necessary to remove

the risk of immediate harm, or to remove the ongoing abuse, neglect, or exploitation.

(b)

Access to and Temporary Removal of Elder or Vulnerable Adult. The Hoh Tribal

Court may issue a warrant for forcible entry to gain access to an elder or vulnerable adult

if attempts to gain voluntary access have failed. If the caseworker or Hoh Police Officer

has good cause to believe that the person is at risk of immediate or irreparable harm upon

personal observation, the caseworker and/or Hoh Police Officer may immediately protect

the person, including transporting the person to a different location. As soon as the

investigator or Police Officer has acted to protect the person, standard emergency

protection order procedures must be followed.

(c)

The Hoh Tribal Court may order temporary removal of elder or vulnerable adult

from the location for their own protection;

(d)

The Hoh Tribal Court may remove the person(s) who has harmed the elder or

vulnerable adult from their residence;

(e)

The Hoh Tribal Court may issue a restraining order against the person(s) who has

harmed the elder or vulnerable adult;

(f)

The Hoh Tribal Court may require any person with a fiduciary duty to the elder or

vulnerable adult to account for their funds and property;

(g)

The Hoh Tribal Court may require any person who has abused, neglected, or

exploited an elder or vulnerable adult to pay restitution for damages resulting from the

abuse, neglect, or exploitation;

(h)

The Hoh Tribal Court may order other relief as it deems necessary for the protection

of the elder or vulnerable adult, including orders or directives to the Hoh Police

Department; and

(i)

The Hoh Tribal Court may order financial restraints, disbursement and use of an

elder’s or vulnerable adult’s property, including, but not limited to, per capita, Social

Security benefits, disability benefits, or needs-based benefits.

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§ 4.06.170 Rights of Elders and Vulnerable Adults, their Families and

Caregivers/Guardians

(1)

The elder or vulnerable adult, their spouse, or guardian shall receive personal service of

notice and a copy of the petition when a petition is filed under this chapter.

(2)

The elder or vulnerable adult, their spouse, nuclear family, guardian, or any other person

including other respondents the Court deems to have a legitimate interest may attend the

proceeding.

(3)

The elder or vulnerable adult has the right to be represented by counsel at all proceedings

at their own expense.

(4)

The elder or vulnerable adult, their spouse, or guardian has the right to seek independent

medical or psychological evaluations at their own expense, present any other evidence, and crossexamine witnesses.

(5)

Confidentiality. All Hoh Tribal Court proceedings under this chapter shall be confidential

and closed to the public except as provided in subsection (2) of this section, Hoh Tribal Court

officials, and persons charged with investigations or case planning of the case before the Court.

Other persons may attend only to provide testimony.

(6)

Violation of Order. Any person who is in violation of a protection order may be required

to appear and show cause why s/he should not be held in contempt of Court. If the Court finds

contempt of Court, the person shall be subject to all sanctions available to the Court. Persons are

also subject to arrest by the Hoh Tribal Police.

§ 4.06.180 Elder or Vulnerable Adult Protection Plan and Services

(1)

Prior to the full hearing, the caseworker may hold a conference with the children, guardian,

custodians, or spokespersons, if appropriate and possible with participation, and any other persons

who may provide helpful participation, as approved by the elder protection team, to develop an

appropriate case plan designed to protect the elder’s or vulnerable adult’s health and safety.

(2)

The elder or vulnerable adult protection plan shall be submitted by the case manager at the

full hearing and shall include services, if any, as necessary to protect the elder or vulnerable adult.

Necessity shall be determined by the Judge.

(3)

All relevant information, including whether the protection order is being complied with,

shall by submitted by the case manager at the review hearing. The Court may dismiss the case

based on the recommendation of the case manager, if the Court determines that an order of

protection is no longer necessary, or if the Court enters an order on guardianship.

(4)

Pursuant to voluntary agreement, if an agreed order of protection plan is created pursuant

to an emergency protection order, it shall be set forth in writing, including any conditions or

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requirements to be performed, and over a fixed time period. The elder or vulnerable adult, their

nuclear family, and their guardian shall sign the voluntary agreement and/or protection plan.

§ 4.06.190 Guardianship Petition Contents

Any interested person or persons may file a petition for limited or full guardianship of an elder (55

years old or older) or vulnerable adult over the age of 18, who is unable to manage his or her own

affairs. A petition for limited or full guardianship shall state:

(1)

The name or names, birthdate, residence, Tribal affiliation and enrollment number of the

elder or vulnerable adult and, if they are not living in his or her own home, locations where the

person has resided since leaving his or her own home, and the name and address of the person(s)

or institution where the elder or vulnerable adult is now located;

(2)

The name, birthdate, residence and Tribal affiliation, if any, of the petitioner (or interested

person) and the petitioner’s relationship to the elder or vulnerable adult;

(3)

A description of the physical and mental problems or limitations that make the elder or

vulnerable adult unable to manage his or her own affairs;

(4)

A doctor’s report or letter, under oath, to the effect that the vulnerable adult is not presently

able to handle his or her property affairs, and the anticipated duration of the incapacity;

(5)

If limited or full guardianship of any or all of such property is requested, a general

description of the personal or nontrust property of the elder or vulnerable adult;

(6)

If limited or full guardianship over any or all of the financial affairs is requested, a general

description of the income or other financial resources or personal property of the elder or

vulnerable adult;

(7)

The names, addresses and relationship of the elder’s or vulnerable adult’s spouse and

children and, as long as such information is reasonably available, any brothers or sisters or

grandchildren or other parties who have been significantly involved in the care of the elder or

vulnerable adult during the past three years;

(8)

Whether or not a limited or full guardian has been appointed for the elder or vulnerable

adult in any State or Tribal Court and whether or not the person has given power of attorney over

his or her affairs to any individual;

(9)

The specific areas over which the petitioner is seeking limited guardianship and the

requested length of time for which the petitioner wishes limited guardianship over the elder or

vulnerable adult;

(10) What other interested person(s), if any, may be available to share limited or full

guardianship responsibilities with the petitioner and their relationship to the elder or vulnerable

adult.

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§ 4.06.200 Service of Petition and Notice of Hearing

(1)

Before appointing a limited or full guardian, Notice of Hearing and a copy of the petition

shall be personally served on:

(a)

The elder or vulnerable adult for whom limited or full guardianship is requested;

(b)

Children of the elder or vulnerable adult, spouse, and/or guardian (if applicable);

(c)

Caseworker(s)/Elder Protection Program. The caseworker shall file information to

the Court that may be relevant to appointment of a guardian. This information shall be filed

“in-camera.” The Court shall disseminate this information to the parties as it deems

necessary and appropriate.

(2)

Personal service or substituted service must be in accordance with service requirements

under § 2.02.090 of the Civil Procedure Ordinance.

(3)

Hearing on the petition shall be held not less than 20 and not more than 40 days from

service of the notice and petition on the elder or vulnerable adult over whom limited or full

guardianship is requested unless good cause is shown. In the event of an emergency, where serious

harm to the elder’s or vulnerable adult’s health or property is likely to occur before such hearing

can be held, the Court may appoint a temporary limited or full guardian or guardian ad litem upon

the Court’s own motion with authority to respond to the emergency. Such authority will extend

only so long as is necessary to respond to the emergency.

§ 4.06.210 Hearings

(1)

The elder or vulnerable adult named in the petition shall be present at all hearings unless

the person files a declaration with the Court requesting that the hearing proceed without them or

the person is incapacitated and unable to appear as documented by a physician, or a guardian ad

litem files an affidavit with the Court stating that either (a) counsel or the guardian ad litem has

fully explained the nature of the hearing to the elder or vulnerable adult and to the best of their

belief the elder or vulnerable adult has understood the nature of the hearing and has clearly

expressed a desire not to be present, or (b) that to the best of their information and belief, the elder

is incapable of understanding the nature of the hearing or participating in the hearing.

(2)

Upon a finding from the affidavit or declaration that the elder or vulnerable adult cannot

participate in the hearing or hearings, the Court may waive the appearance of the person; provided,

that the counsel or guardian ad litem is present at every hearing on the merits of the petition, in the

person’s behalf.

(3)

At the hearing, the Court shall: examine the petition; determine the need to have a guardian

appointed by taking such testimony as any interested party wishes to present.

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(4)

that:

Upon presenting this evidence, the petitioner must prove by preponderance of evidence

(a)

The elder or vulnerable adult is unable to manage his or her own affairs due to:

(i)

Loss of memory or reasoning ability;

(ii)

Acute alcoholism and/or abuse of prescription drugs;

(iii)

Mental illness;

(iv)

Is incapacitated; or

(v)

Other medical condition.

(b)

The elder or vulnerable adult lacks the ability to manage his or her own affairs to

such a degree that the person’s personal health, personal security or financial security are

measurably threatened; and

(c)

There are no less restrictive alternatives available to remedy the evidence presented

in this subsection (4).

(d)

The Court shall make specific findings as to the above.

§ 4.06.220 Appointment

If the Court determines pursuant to this section that a limited or full guardianship is necessary to

protect the person or property of the elder or vulnerable adult, the Court shall further make written

findings as to whether or not the limited or full guardianship should be shared among family

members or other persons concerned for the elder’s or vulnerable adult’s well-being. If it appears

in the best interest of the elder or vulnerable adult, and if more than one family member or other

concerned persons agree to share the limited or full guardianship responsibilities, the Court may

enter an order appointing more than one limited or full guardian. The preference of the elder or

vulnerable adult as contained in unrevoked durable power of attorney, or otherwise clearly stated,

shall control selection of a limited or full guardian or guardians except for good cause or

disqualifications.

§ 4.06.230 Scope of Guardianship

(1)

The Court shall make further written findings and order as to the extent of the guardianship

over the person or property of the elder or vulnerable adult. The powers 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.

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(2)

The order shall further state that the elder or vulnerable adult may not be placed in a nursing

home without the express consent of the Court and after notice to the elder protection

team/program.

§ 4.06.240 Appointment of Counsel or Guardian Ad Litem for Elder or

Vulnerable Adult

Within 10 days of the filing of a petition for limited or full guardianship of an elder or vulnerable

adult, the Court may appoint legal counsel or, if more appropriate, a guardian ad litem for the elder

or vulnerable adult in extraordinary circumstances. If it appears from the petition and any medical

report attached thereto or submitted to the Court that the elder or vulnerable adult appears not to

be able to assist counsel or participate verbally in his or her own defense to the limited or full

guardianship, then the Court may appoint a guardian ad litem instead of legal counsel.

Appointment of legal counsel or a guardian ad litem is dependent on available Court funds.

§ 4.06.250 Filing Inventory of Income and Property

(1)

Persons appointed limited or full guardian over the income or personal or nontrust real

property of the elder or vulnerable adult shall file an inventory with the Court of all such income

or personal or nontrust real property prior to the appointment or such time as may be extended by

the Court upon a showing of good cause for requesting such extension.

(2)

The Court may require limited or full guardianship funds be placed into a judicially blocked

account or bank account.

§ 4.06.260 Review of Guardianship

(1)

The Court shall review all limited or full guardianships every six months for the first year

after the appointment of a limited or full guardian or guardians and thereafter every one year unless

more frequent review appears in the best interest of the elder or vulnerable adult.

(2)

A limited or full guardian with authority over an elder’s or vulnerable adult’s income or

property shall report and file an accounting of their income and other resources and any transfers

of their personal property.

(3)

A limited or full guardian with authority over health and welfare decisions shall report on

the health and welfare decisions of the elder or vulnerable adult including living conditions, diet,

and attention by caregivers, medications and medical treatment. If it appears the limited or full

guardian is in need of more assistance in caring for the elder or vulnerable adult, the matter shall

be referred to the elder protection team for a report and recommendations as to how existing

services may better serve the needs of the elder and the limited or full guardian. Such

recommendations shall be made in a report filed with the Court after consultation with the limited

or full guardian and the report should be filed with the Court and copies provided to the limited or

full guardian. The limited or full guardian shall indicate on the report or in a separate written

statement their agreement or disagreement with the report.

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(4)

The limited or full guardian shall appear in person for all Court reviews and shall also file

a written report documenting the status of the elder or vulnerable adult at the time of the review

hearing. Updated financial information must also be provided to the Court.

§ 4.06.270 Termination of Guardianship

(1)

Failure to file an initial inventory, or to appear and file a written report at the time of a

regularly scheduled review, shall constitute grounds for terminating the limited or full

guardianship; provided, that the limited or full guardian is given 15 days’ notice and an opportunity

to request a rescheduling of their appearance and/or file a late report within such period to avoid

termination of the limited or full guardianship.

(2)

A finding of failure to fulfill limited or full guardianship duties in a reasonable and

responsible manner after hearing shall be cause to terminate the limited or full guardianship.

Hearing on the proposed termination may be filed on the Court’s own motion or on the motion of

any interested party and shall be scheduled no less than 15 days from service of the motion on the

limited or full guardian.

(3)

The limited or full guardianship shall automatically terminate on the death of an elder or

vulnerable adult, or until discharged by the Court. The guardian shall provide an accounting of

resources and property to the Court at a hearing upon the death of an elder or vulnerable adult.

(4)

If the Court terminates a limited or full guardianship and the elder or vulnerable adult

continues to be in need of a guardian the Court will order the case manager(s)/elder protection

team to provide services to protect and care for the health, safety, and welfare of the elder or

vulnerable adult. Services may include ordering the Tribe be the protective payee for resources.

§ 4.06.280 Securing Medical Service and Authorizing Medical Treatment

(1)

Duty to Ensure the Maintenance of the Elder’s or Vulnerable Adult’s Health. A limited or

full guardian having medical decision-making authority over the person has the duty to ensure the

maintenance of the person’s health. This includes not only the duty to react to any medical

situations which demand attention, securing and authorizing necessary medical treatment, but also

the duty to ensure the person receives regular preventive medical and dental services. If the person

is a resident of a facility or a patient in a hospital the limited or full guardian shall periodically

examine the medical records of the ward and speak with attending physician(s) and other

caregivers to ensure that the person is receiving proper and necessary medical care.

(2)

Criteria for Making Medical Decisions. A limited or full guardian having appropriate

authority shall consider the following factors when called upon to make a medical decision for an

elder or vulnerable adult:

(a)

Any wishes of the elder or vulnerable adult, expressed prior to appointment of a

limited or full guardian, including but not limited to wishes expressed in a living will,

durable power of attorney, or any other oral or written declaration of intent;

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(b)

Whatever knowledge the limited or full guardian has of the elder or vulnerable

adult; what he or she believes the elder or vulnerable adult would have wanted if able to

make the decision;

(c)

The current wishes of the elder or vulnerable adult with regard to the decision;

(d)

The perceived best interests of the elder or vulnerable adult;

(e)

Traditional cultural or religious practices or beliefs of the elder or vulnerable adult

and their family.

In determining any of the above factors, the limited or full guardian should consider

information arising out of personal contact with the elder or vulnerable adult, information

arising out of the contact of family or close friends with the elder or vulnerable adult,

information and opinions given by attending physician(s), and/or relevant medical

professionals, opinions of leaders of the person’s religion, and other relevant information.

(3)

Discussions About Medical Interventions That Can Be Made Without a Second Opinion.

Certain medical interventions if performed without anesthesia or with only a local anesthetic may

be authorized by the limited or full guardian alone, considering the factors listed above in

subsection (b) of this section. This subsection applies to the following medical interventions:

(a)

Diagnostic physical examinations;

(b)

Eye examinations;

(c)

Limited use of x-rays;

(d)

Routine dental examinations, such as teeth cleaning, fillings, etc.;

(e)

Physical therapy;

(f)

Medications both nonprescription, such as aspirin, cold medications, and vitamins,

and uncontroversial, recommended prescription drugs, unless the limited or full guardian

has cause to believe such prescription drugs are inappropriate for medical or cultural

reasons;

(g)

Routine low-risk immunizations.

§ 4.06.290 Disposition of Property

(1)

A limited or full guardian, having the appropriate authority, shall not sell, encumber or

otherwise transfer nontrust (fee) real or trust property of an elder or vulnerable adult, or an interest

therein, unless such transfer is approved by the Tribal Court or by such other court as may have

jurisdiction.

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(2)

A limited or full guardian shall not prepare or have prepared by another a will on behalf of

the elder or vulnerable adult for any property, including trust property, without an order of the

Court.

(3)

A limited or full guardian appointed by any Tribal or State Court shall not under any

circumstances be considered to have authority to sell, encumber, or otherwise transfer traditional

items of personal property owned by the elder or vulnerable adult, including, but not limited to,

regalia, beadwork and basketry, unless authorized by the Court.

(4)

A limited or full guardian, only if Court-ordered, shall transfer personal property of the

elder or vulnerable adult, other than that included in subsection (2) of this section, only when such

transfer is in the best interest of the elder or vulnerable adult, as described in subsection (5) of this

section.

(5)

In considering whether or not the sale of fee land or personal property is in the best interest

of an elder or vulnerable adult, the Court shall consider:

(a)

Ability of the sale of the property to improve the life of the elder or vulnerable

adult;

(b)

The likelihood that the elder or vulnerable adult will need or benefit from the

property in the future;

(c)

The current desires of the elder or vulnerable adult with respect to the sale of the

property;

(d)

The ability of the elder or vulnerable adult to maintain the property;

(e)

The availability and appropriateness of alternatives to the sale of the property;

(f)

The likelihood that such property may deteriorate or be subject to waste, if not sold;

(g)

The benefit versus the liability and costs of maintaining the property;

(h)

Such other factors that may exist in the particular instance.

(6)

Limited or full guardians may have access to monies or other resources belonging to the

elder, if available, in order to provide for the necessary care of the elder or vulnerable adult.

§ 4.06.300 Disputes

Any disputes regarding the care of an elder or vulnerable adult shall be resolved as to the best

interests of the elder or vulnerable adult under Hoh Tribal law.

§ 4.06.310 Guardianship Records

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The Clerk shall keep a separate, permanent file for each limited or full guardianship proceeding

and shall file all papers relevant thereto, including petitions, notices, and orders of hearings. Any

limited or full guardian duly appointed shall be entitled to receive, without charge, three certified

copies of the letters of limited or full guardianship. Certified copies of filed papers shall be

otherwise available at a fee per copy to be established by the Court.

§ 4.06.320 Civil Action for Reimbursement

The elder or vulnerable adult, or the Tribe on behalf of the elder or vulnerable adult, may bring a

civil action in the Tribal 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. 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, or the performance of some other act for the

benefit of the injured party.

In a civil action for reimbursement the Tribal Court shall apply (in this order) applicable Tribal

law, Federal, or State law.

§ 4.06.330 Exclusivity

Actions concerning limited or full guardianship of Tribal elders and/or vulnerable adults shall be

brought exclusively within this chapter. This chapter does not otherwise amend guardianship

provisions contained in the Hoh Youth Code, or Domestic Relations Code.

§ 4.06.340 Severability

If any part or parts or the application of any part of this chapter is held invalid, such holding shall

not affect the validity or the remaining parts of this chapter.

§ 4.06.350 Sovereign Immunity

Nothing in this chapter shall be deemed to constitute a waiver by the Hoh Indian Tribe of its

sovereign immunity for any reason.

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