A. Reporting abuse or neglect to the proper agency; and

B. Receiving and investigating reports of abuse or neglect; and

C. Providing protective services for elders or vulnerable adults.

A. Abuse is:

1. An intentional or negligent infliction of bodily injury, unreasonable confinement, intimidation, emotional abuse or cruel punishment of an elder or vulnerable person which results in physical pain or mental anguish. Abuse may be inflicted by relatives, acquaintances, caretakers or anyone else who comes into contact with an elder or vulnerable adult; and

2. Sexual abuse, which is physical contact without consent of an elder or vulnerable adult with the intent to derive sexual gratification by the person making contact. Consent may not be obtained by threat, coercion, intimidation or fraud; and 

3. Exploitation, which is improper or unauthorized use of an elder or vulnerable adult’s funds, property or other resources. A failure to use an elder or vulnerable adult’s funds, property or resources as the elder or adult desires or for their benefit shall be deemed exploitation.

B. Neglect is: A failure to provide for the basic needs of an elder or vulnerable adult by not supplying resources, care or supervision required to provide for these basic needs. Neglect also includes:

1. Interfering with delivery of necessary resources and services; or

2. Failing to report abuse of an elder or vulnerable person; or

F. Emergency is: A situation in which an elder or vulnerable adult is immediately at risk of death or injury and is unable to consent to services to remove the risk.

G. Family is: As determined by Tribal law, custom, or traditions.

H. Good faith is: An honest and reasonable belief or purpose and the lack to defraud.

 I. Least Restrictive Alternative is: Whenever it is necessary to protect an elder or vulnerable adult, the least restrictive method of intervention shall be used to protect the freedom and independence of the elder or vulnerable adult. The least restrictive alternative is that environment which is the most like the elder or vulnerable adult’s home setting and which is most capable of supporting the protected person’s physical and mental health and emotional being.

J. Protective Placement is: The placement of an elder or vulnerable adult in a hospital, nursing home, residential care facility, other suitable placement, or transfer from one facility to another with consent of that person or with appropriate legal authority.

K. Protective Services is: Services provided to an elder or vulnerable adult with consent or by order of an appropriate legal authority which includes but is not limited to: social services, mental and physical health examinations, home and day care, legal assistance, guardianship, case management and any other services consistent with this Code.

L. Retaliation is: Intimidating, threatening to cause bodily harm, or causing bodily harm, or causing bodily harm to a reporter or family or a person reporting elder abuse; causing the reporter or reporter’s family to be terminated, suspended or reprimanded by an employer; causing property damage to real or personal property belonging to reporter’s family.

M. Substantiated Report is: When there is probable cause of abuse after an investigation is conducted by a protective or social services worker. The report is sent to Tribal Court for further steps to be taken. Social/Protective services shall keep substantiated reports on file for five (5) years.

N. Unsubstantiated Report is: When no probable cause exists after an investigation. Social services will keep such reports on file for two (2) years following the completion of the report.

A. Suspected abuse or neglect shall be reported to the Bay Mills Indian Community Protective Services or social workers by:

1. The elder or vulnerable adult’s family or caretaker; or

2. Elected official of the Tribe; or

3. All tribal social workers, medical and dental staff, religious practitioners, or any other tribal employees who provide services to tribal elders or vulnerable adults; or

4. Any person or agency, including employees, with fiduciary duties to elders or vulnerable adults such as attorneys, accountants, property managers or financial institutions; or

5. The elder or vulnerable adult abused; or

6. Any other person(s) who have reason to suspect that an elder or vulnerable adult is abused or neglected.

B. Reports of suspected elder or vulnerable adult abuse is presumed to be made in good faith.

A. A Bay Mills protective/social services worker shall initiate an investigation, as required in part B of this section, upon receiving a report of elder or vulnerable adult abuse or neglect.

B. The Bay Mills protective/social worker shall investigate the report of abuse or neglect within 48 hours and prepare a written report within 10 days based upon:

1. Personal interviews of the abused, the immediate family and caretaker, suspected abuser, employees of agencies (if involved), and any other person who may have pertinent information; and

2. Medical records and other evidence of abuse; and

3. Assessments of elder or vulnerable adult’s living conditions using Tribal standards for housing; and

4. Any other observations, assessments, or documents that may aid in completing an accurate report.

C. The written report shall contain:

1. Elder or vulnerable person’s name, address or location, telephone number; and

2. Name, address or location, telephone number(s) of the person(s) or agency who is suspected of abuse or neglect under this Code; and

3. The condition of the abused; and

4. Names of witnesses and sufficient information to effect the subpoena power of the Court over them; and

5. Name, address or location, telephone number of caretaker(s); and

6. A description of the act(s) which are suspected of being abusive or neglectful; and

7. Any other information helpful in establishing abuse or neglect.

A. The Tribal Court may issue an ex parte emergency protection order authorizing emergency services or protective placement upon clear and convincing evidence that an elder or vulnerable adult:

1. Is at risk of immediate physical harm; and

2. No one is authorized by law or court order to give consent; and

3. The elder or vulnerable adult or authorized caretaker is incapacitated and cannot consent to services.

B. The emergency protection order shall:

1. Set out the specific emergency services to be provided to remove the emergency; and

2. Allow protective placement only if the evidence indicates that it is absolutely necessary; and

3. Designate the person or agency required to implement the order; and

4. Be issued for 72 hours excluding weekends and holidays, and may only be renewed for a maximum of an additional 72 hours if evidence of a continuing emergency.

C. Tribal court may issue a warrant for forcible entry by Tribal Law Enforcement if attempts to gain voluntary access have failed.

D. The petition for an emergency protection order shall include the name and interest of the petitioner. Also the name, address or location, proposed protective services, attempts to secure consent and any other facts that will assist the Court.

E. Emergency protection orders may be set aside by the Tribal Court upon written petition of any party showing good cause.

F. The Tribal Court shall hold a preliminary hearing on a petition to provide protective services within 72 hours, excluding weekends and holidays, after an emergency protection order is issued unless good cause exists to grant a delay. The Court shall state on the record any cause for such delay.

G. If there is good cause to believe that an emergency exists and an elder or vulnerable adult is at risk of immediate or irreparable harm upon personal observation, the investigator or law enforcement officer may immediately protect the abused, including transporting him or her to adequate facilities. Immediately after the abused is protected, standard procedures for an emergency protection order must be followed.

H. Anyone who acts in reasonable good faith pursuant to this section shall be immune from criminal or civil suit if the suspected abuse or neglect results in an unsubstantiated report.

A. An elder, vulnerable adult, family or caretaker shall be informed of an abuse investigation before it begins unless an emergency exists. If an emergency exists, notice must be given using a means reasonably calculated to give actual notice as soon as possible but no later than 72 hours.

B. Elders or vulnerable adults may refuse to accept protective services provided there is good cause to believe that the abused can take care of themselves and the elder or vulnerable adult knows of the services offered.

C. Families or caretakers may refuse services for themselves but cannot refuse services for the elder or vulnerable adult.

D. Elders, vulnerable adults, family or caretakers may refuse to allow investigators into their home and must be told of the right of investigator to seek a warrant for entry.

E. If criminal charges may be brought against any party under the Bay Mills Criminal Code, the accused party must be informed of their rights under the Indian Civil Rights Act, 25 U.S.C. sec. 1301 (1994).

F. Personal service of notice to the elder, vulnerable adult, family or caretaker is required when a petition is filed pursuant to this Code.

G. The elder, vulnerable adult, family or caretaker has the right to attend all proceedings pertaining to the capacity of the abused unless the Tribal Court determines the elder or adult’s health is at risk in attending such proceedings.

H. The elder, vulnerable adult, family or caretaker has the right to independent medical, psychological or psychiatric evaluations at their own expense.

A. If the Tribal Court determines that there is incapacity or evidence of abuse or neglect of an elder or vulnerable adult, a protection order will be issued which may contain, but is not limited to the following:

B. An elder or adult protective order may not exceed 12 months. Extensions for the 12 months following may be obtained in Tribal Court by petition, notice and an opportunity for hearing. Extensions may be obtained as many times as necessary if cause is shown by clear and convincing evidence. Review of the need for continued protective orders shall occur every 6 months or upon motion of an interested party as accepted by the Court.

A. The identity of the reporter of abuse or neglect under this Code is confidential and shall not be released unless the reporter consents or the Tribal Court determines that the need of the elder or vulnerable adult exceeds the reporter’s right to privacy and mandates disclosure. The reporter has the opportunity to petition and be heard at a closed evidentiary hearing with regard to any such disclosure. Any disclosure may be released only to the extent necessary to protect the elder or vulnerable adult.

B. Records of investigations concerning abuse or neglect under this Code are confidential. Bay Mills Protective Services, Law Enforcement, court officials, attorneys, coroner, medical staff and any other person whom the Court determines has reasonable cause to have access may view the record(s).

C. Any one who violates this section of the Code shall be subject to a money penalty of up to $5,000 per occurrence. Petition, notice and an opportunity for hearing in Tribal Court will determine if a violation has occurred.

A. Any person(s) who commits abuse or neglect against an elder or vulnerable adult may be criminally prosecuted under applicable provisions of the Bay Mills Criminal Code.

B. Criminal prosecutions may run concurrently with civil proceedings under this Code. Dismissal or deferral of a criminal proceeding in no way affects the applicability of this Code. Factors for the Court to consider when dismissing or deferring criminal proceedings are:

A. Petition. The tribal prosecutor shall initiate proceedings on behalf of the Tribe, by filing a petition which contains the following information:

C. Hearings. The Court shall conduct a hearing on the petition to determine whether the facts support a finding that the elder is in need of protection. All material and relevant evidence which is reliable and trustworthy may be admitted and relied upon by the Court to the extent of its probative value, including hearsay contained in a written investigative report, provided that the preparer of the report is present and available to provide testimony. The parties, including the elder, shall be afforded an opportunity to examine and controvert written reports, and cross-examine individuals whose testimony is presented. The Court may rely on conference telephone or other electronic devices that permit all those appearing or participating to hear and speak to each other.

D. Judgments. The Court shall make a written decision at the conclusion of the hearing. If the allegations of the petition are not sustained by a preponderance of the evidence, the Court shall dismiss the matter. If the allegations of the petition are sustained, the Court shall find that the elder is in need of protection, and may enter further orders for evaluation, assessment or other orders to protect the elder. At the Court’s discretion, a Dispositional Order ensuring the protection of the elder may be held immediately or at an interval following the initial hearing.