United States: Conservatorships And Guardianships In Tribal Courts: What Tribes Need To Know

Robert Barton is an Associate in Holland & Knight's Los Angeles office

HIGHLIGHTS:

• Many tribes are considering, or have already implemented, the capability for their tribal courts to handle protective proceedings – usually referred to as conservatorships or guardianships – for older and developmentally disabled tribal members, as well as other vulnerable adults who reside in Indian or Native communities.
• Adults over 65 and the developmentally disabled are subject to an increased risk of exploitation. For tribes whose members receive per capita distributions, it is particularly important to safeguard these distributions.
• Guardianships and conservatorships affect an individual's most fundamental rights of liberty and property. As a result, the implementation of a protective proceeding regime in tribal court requires careful thought and drafting.

Many tribes are considering, or have already implemented, the capability for their tribal courts to handle protective proceedings for older and developmentally disabled tribal members, as well as other vulnerable adults who reside in Indian or Native communities. These proceedings are usually referred to as conservatorships or guardianships.

Adults over 65 and the developmentally disabled are subject to an increased risk of exploitation by others. For tribes whose members receive per capita distributions, it is particularly important to safeguard these distributions to ensure they are being used for the member's benefit. And even for those tribes whose members do not receive distributions, there are many other reasons why protective proceedings might be desirable, such as the inability of a person to manage his or her own finances and affairs, or to make decisions about their own healthcare.

For these and other reasons, including that tribes assume a sense of responsibility for their members, it makes sense that tribal courts would be equipped to handle matters and disputes that affect members' welfare and safety. However, guardianships and conservatorships affect an individual's most fundamental rights of liberty and property. As a result, the implementation of a protective proceeding regime in tribal court requires careful thought and drafting; it should not be done without consultation with experienced counsel.

While the full scope of implementing a protective proceeding regime in tribal court is beyond the scope of this Alert, the basic considerations are set forth below.

The Basics

Conservatorships v. Guardianships

The terms "conservatorship" and "guardianship" are often used interchangeably. Regardless of the terminology, the intent is to provide a formalized and court-supervised process in which a third party is charged with overseeing the finances and/or personal affairs of an individual who is unable to do so on his or her own behalf, usually because the individual suffers from a medical condition that negatively affects the individual's decision-making ability (for example, as a result of dementia, mental illness or medical incapacity). Guardianship is the term used in this Alert. A guardianship in tribal court typically takes one of three forms: guardianship of the person, estate and trust property.

• Guardianship of the person: A guardianship of the person removes decision-making authority and responsibility for personal decisions (including choosing a residence, consenting to medical treatment and making end-of-life decisions) and gives such authority to a third-party guardian.
• Guardianship of the estate: A guardianship/conservatorship of the estate removes control over a person's assets and financial affairs, and gives it a third-party guardian.
• Guardian of trust property: Similar to a guardian of the estate, a guardian of trust property removes from the incapacitated person all control over the person's trust property. A guardian of trust property may be required to obtain approval from the Secretary of the U.S. Department of the Interior before taking action with respect to trust property.

Less Restrictive Alternatives to Guardianships

Permanent guardianships are an extreme measure. As a result, less restrictive alternatives will often be desirable; in many cases, such alternatives must be considered before a permanent guardianship can be put in place.

• Limited guardianships: This type of guardianship/conservatorship is generally appropriate when the person's incapacities are limited in scope and the ability to function is only partially diminished. Because of the importance of self-autonomy and the fact that limited self-autonomy can be attained in these instances, the goal of a limited guardianship/conservatorship is to assist the incapacitated person in developing and attaining maximum self-reliance and independence. The powers of a guardian under a limited guardianship vary widely according to jurisdiction.
• Temporary guardianships: Temporary guardianships may be utilized in emergency situations or in situations of temporary incapacity. They are usually of very short duration, often a period of no longer than several weeks or months.
• Power of attorney: Another alternative is the execution of a power of attorney for either finances or healthcare when the individual has the capacity to do so. A power of attorney provides specific instructions regarding the management of an individual's finances or healthcare, as well as the designation of an agent who can make these decisions on the individual's behalf, typically when they are incapacitated.
• Representative payees: Recipients of Supplemental Security Income (SSI) or Social Security disability insurance who are incapable of managing their benefits may be assigned representative payees. Some tribes have utilized a similar process with respect to tribal per capita payments.
• Restraining orders: In undue influence cases, a full guardianship may not be needed. Instead, the vulnerable adult may just need protection from an abuser. Restraining orders may be a desirable alternative to a guardianship in these situations.

Other Considerations

Jurisdiction

Tribal courts have jurisdiction to oversee guardianship proceedings over their members residing in an Indian or Native community.

Some tribes authorize tribal court jurisdiction over members even when they do not reside in the tribe's community. However, in the guardianship context, tribal courts will have, at most, concurrent jurisdiction for guardianship proceedings involving members who do not reside in their community. This is because tribal courts will not have jurisdiction over assets located on state lands, but they will be able to exercise jurisdiction over funds within tribal jurisdiction, such as per capita distributions, before they are distributed to tribal members. However, with some exceptions, a guardianship of the person for a tribal member who does not reside in an Indian or Native community will likely require registration of the guardianship order in the foreign jurisdiction in order to be meaningfully enforceable. Note that most states have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which governs recognition of foreign guardianship orders and which would apply to recognition of guardianship orders originating from tribal courts. See UAGPPJA, §102, subd. (14).

Tribal court jurisdiction over non-members residing in an Indian or Native community may also be desirable. However, a tribal court's jurisdiction over non-members is subject to a patchwork of legal opinions, most of which are fact-intensive or otherwise result in limited guidance in this area. Whether such jurisdiction exists depends upon the relationship of the non-member with the tribe and the manner in which he or she interacts with it. The easiest scenario to find jurisdiction over a non-member resident would likely be one in which tribal interests are substantially impaired (for example, the conduct of the non-member is threatening the security of tribal members). Moving out from those straightforward facts increases the complexity of the analysis. And even the basic jurisdictional scenario just mentioned has not been tested by the courts in the guardianship context.

As a result, any tribe considering implementing a guardianship ordinance should carefully analyze its statutes as to how and under what circumstances non-member jurisdiction in guardianship proceedings will be permitted. This includes whether the proposed ward must stipulate to the court's jurisdiction and what to do in a situation where the proposed ward's ability to stipulate to jurisdiction is in question as a result of a lack of capacity.

Indian Civil Rights Act

25 U.S.C. §1302(8) provides that "[n]o Indian tribe in exercising powers of self-government shall ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law."

Guardianship proceedings affect the fundamental rights of liberty and property. As a result, it may be in the best interest of a tribe to ensure that the guardianship procedures put in place by the tribal court comply with minimum due process standards. Failure to do so will likely make a guardianship order subject to challenge.

Although the case law has generally left what constitutes due process up to the tribes themselves, at a minimum, it may be in the best interest of a tribe to provide counsel to proposed wards, apprise them of the allegations and evidence against them, afford them the right to present evidence and to cross-examine the evidence, and have the decision made by an impartial tribunal. Further, the evidentiary standard for imposing a guardianship should be clear. Typically, this means proving by clear and convincing evidence that the guardianship is in the best interests and the least restrictive alternative for the proposed ward.

Ongoing Monitoring

Finally, it bears noting that the implementation of a guardianship is only a first step in what generally is a lifelong process for the ward. As a result, many jurisdictions require guardians to file regular reports of their wards' general condition, health status and the continued need for guardianship, typically on an annual basis, among other requirements. It may be in the best interest of tribes to give careful consideration to the adoption of these ongoing reporting requirements.

Conclusion and Next Steps

Guardianship is an area of the law that has the potential to provide great benefit to tribes and their members. However, in view of the fundamental interests affected by such proceedings, instituting any protective proceeding regime should be approached with caution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.