TN 2 (02-18)

A. PR 17-093 Chehalis Tribal Court Review Order and Legal Incompetence

Date: May 31, 2017

1. Syllabus

The October 2014 review order establishes that Mr. J- is legally incompetent because it indicates Mr. J- is a vulnerable adult and has a guardian, the Tribe, which is responsible for making any and all decisions regarding his health, safety, and welfare. These court determinations are sufficient evidence of “legal incompetence” to satisfy the regulatory requirements. Additional documents from the Chehalis Tribe confirm the conclusion because they show background facts, including that the Tribal Court appointed a “protective payee” to manage Mr. J-’s financial affairs because of the severity of his disabilities.

2. Opinion

QUESTION PRESENTED

Does the Chehalis Tribal Court Order on Review Hearing dated October XX, 2014 (“October 2014 review order”), establish that Mr. J~ is “legally incompetent” for capability determination purposes?

BRIEF ANSWER

Yes. The October 2014 review order establishes legal incompetence because it shows that (1) Mr. J~ is a “vulnerable adult” for whom (2) the Chehalis Tribe retains the authority to make any and all decisions regarding his health, safety, and welfare. These Tribal Court findings establish that Mr. J~ is “legally incompetent” within the meaning of 20 C.F.R. §§ 404.2010(a)(1), 416.610(a)(1).

SUMMARY OF FACTS

The October 2014 review order establishes, as relevant here, that: (1) Mr. J~ is a “vulnerable adult” as defined by the Chehalis Tribal Code, and (2) the Chehalis Tribe/Adult Services Department has full authority to make any and all decisions regarding his health, safety, and welfare. October 2014 review order at 2.

We recently obtained additional documents from the Chehalis Tribe that cover an extensive period. In particular, we obtained the initial court order dated December XX, 2007, and all subsequent review orders dated May 2008 through January 2017. Notably, the initial order indicates that Mr. J~ has significant mental and physical limitations, including severe mental retardation, microcephaly, and cerebral palsy. December 2007 initial order at 2. The initial order also indicates that Mr. J~ needed a specialized feeding table and bed; engaged in self-mutilation and aggressive behavior such as biting his hand and striking out at individuals; took medication for his developmental disabilities; received specialized educational services; was incontinent; could not walk independently; and was unable to feed, clothe, or toilet himself. Id.

In a temporary order dated February XX, 2011, the Tribal Court found that Mr. J~ needed a protective payee and ordered that a third-party trust “be set up by the Chehalis Tribe so that the protective payee may access Mr. J~’s per capita funds for his care.” February 2011 temporary order at 2. The following month, the Tribal Court issued an Order Appointing Protective Payee and Assigning Per Capita Funds To Pay For Adult Care. March 2011 review order at 1. Based on testimony from Mr. J~’s social worker, the Tribal Court found that “Mr. J~ receives tribal per capita payments from the Chehalis Tribe that are deposited into an account for his use . . . [but] Mr. J~ has no means of accessing this account on his own due to his disabilities.” Id. at 2. Accordingly, the Tribal Court ordered the Tribe to obtain a protective payee and to set up a third-party trust to allow the protective payee to access Mr. J~’s tribal per capita funds for his ongoing care. Id.

In the orders dated May 2008 through January 2017 the Tribal Court repeatedly found that Mr. J~ is a “vulnerable adult,” as defined in the Chehalis Tribal Code whose decisions are made by the Tribe. Moreover, the review orders since February 2011 consistently indicated that Mr. J~ required a “protective payee,” as defined in the Chehalis Tribal Code, to access his funds for his ongoing care.

DISCUSSION

Under the regulations, the agency will appoint a representative payee if it has information that a beneficiary is:

(1) legally incompetent, or mentally incapable of managing benefit payments, or

(2) physically incapable of managing or directing the management of his or her benefit payments. 20 C.F.R. §§ 404.2010(a), 416.610(a).

In determining whether to make benefit payments to a representative payee, the agency may consider court determinations, medical evidence, and “other” evidence. See 20 C.F.R. §§ 404.2015, 416.615. More specifically, a court order finding that a beneficiary is “legally incompetent” will serve as a basis for determining that the agency should pay benefits to a representative payee. See 20 C.F.R. §§ 404.2015(a), 416.615(a). The court order must be a certified copy. Id. A court order appointing a guardian can also be evidence of incompetency if the order establishes that a beneficiary is mentally or physically incapable of managing his financial affairs. See 20 C.F.R. §§ 404.2010(a)(1)-(2), 416.610(a)(1)-(2); see also GN 00502.023A.2. Likewise, medical evidence can serve as a basis for determining if a beneficiary is capable of managing or directing the management of benefit payments. See 20 C.F.R. §§ 404.2015(b), 416.615(b); see also GN 00502.020B, GN 00502.040. For example, a statement of an examining physician or other medical professional can be such a basis if it includes:

(1) information concerning the nature of the beneficiary’s illness;

(2) the beneficiary’s chances of recovery; and

(3) the opinion of the physician or other medical professional as to whether the beneficiary is able to manage or direct the management of benefit payments. Id.

Finally, “other” evidence, such as “statements of relatives, friends, and other people in a position to know and observe the beneficiary,” can provide information that is useful in determining whether a beneficiary is able to manage or direct the management of benefit payments. 20 C.F.R. §§ 404.2015(c), 416.615(c); see also GN 00502.020B, GN 00502.030.

The specific question presented here is whether the October 2014 review order establishes that Mr. J~ is legally incompetent. See generally 20 C.F.R. §§ 404.2015(a), 416.615(a). The October 2014 review order does not specifically address whether Mr. J~ is legally incompetent, but instead finds him to be a “vulnerable adult” and grants the Tribe “full authority to make any and all decisions regarding [his] health, safety and welfare.” October 2014 review order at 2. Typically, a finding that an adult cannot make or communicate responsible decisions regarding his or her physical health or safety coupled with a court order granting another party, for example a guardian or conservator, full authority to make any and all decisions on behalf of such person equates to a finding of legal incompetence. See, e.g., Alaska Stat. §§ 13.26.005(3),(5), 13.26.251(f); Idaho Code §§ 15-13-102(3),(6), 66-405(4); Oreg. Rev. Stat. §§ 125.005(1), (4), (5), 125.300, 125.400; Wash. Rev. Code § 11.88.010.

In this case, the Tribal Court issued the October 2014 review order under the Chehalis Tribal Elder and Vulnerable Adult Protection Division of the Tribal Code (Tribal Code). See Tribal Code, Title 5, Domestic Relations, Division II, Chapters 5.25 – 5.55.¹ The Tribal Code defines the term “vulnerable adult” to include “persons 18 years of age or older who do not have the functional, mental, emotional or physical ability to protect and care for themselves.” Tribal Code 5.25.020. Moreover, the Tribal Code provides that the Tribal Court may appoint a guardian or protective payee if the court finds the vulnerable adult “cannot protect and care for himself or herself due to diminished functional, mental, emotional, or physical ability.” Tribal Code 5.55.070(B). The Tribal Code does not define guardian, but a “protective payee” means a person appointed by the Tribal Court to receive and disburse funds on behalf of another to protect that person’s financial resources. Tribal Code. 5.25.020. The finding that Mr. J~ is a vulnerable adult, combined with the apparent appointment of a guardian to make any and all decisions for him, equates to a finding of legal incompetency.

The recently obtained additional documents from the Tribe inform our conclusion as they provide context by explaining the nature and severity of Mr. J~’s mental and physical impairments. More specifically, the initial order indicates that Mr. J~ has significant mental and physical limitations, including severe mental retardation, microcephaly, and cerebral palsy. December 2007 initial order at 2. The initial order further shows that Mr. J~ needed a specialized feeding table and bed; engaged in self-mutilation and aggressive behavior such as biting his hand and striking out at individuals; took medication for his developmental disabilities; received specialized educational services; was incontinent; could not walk independently; and was unable to feed, clothe, or toilet himself. Id. Although this information does not equate to a finding of legal incompetence, it provides some useful insight into the underlying basis of the Tribal Court’s finding that Mr. J~ is, and continues to be, a “vulnerable adult” and its grant of full authority to the Tribe to make his decisions. Indeed, the recently obtained documents consistently indicate that in addition to being a vulnerable adult whose decisions are made by the Tribe, Mr. J~ needs a “protective payee” to access his funds for his ongoing care because his disabilities are so severe.

In short, the October 2014 review order constitutes a court determination of legal incompetency as required under 20 C.F.R. §§ 404.2015(a), 416.615(a). Because we understood the question presented to be limited to “legal incompetence,” we did not address whether the initial order or any of the subsequent review orders constitute “medical” or “other” evidence of Mr. J~’s ability to manage benefit payments under 20 C.F.R. §§ 404.2015(b)-(c), 416.615(b)-(c).

CONCLUSION

In sum, the October 2014 review order establishes that Mr. J~ is legally incompetent because it indicates Mr. J~ is a vulnerable adult and has a guardian, the Tribe, which is responsible for making any and all decisions regarding his health, safety, and welfare. These court determinations are sufficient evidence of “legal incompetence” to satisfy the regulatory requirements. Additional documents from the Chehalis Tribe confirm the conclusion because they show background facts, including that the Tribal Court appointed a “protective payee” to manage Mr. J~’s financial affairs because of the severity of Mr. J~’s disabilities.

Footnotes:

[1]

^. The Chehalis Tribal Code is available at:

http://www.codepublishing.com/WA/ChehalisTribe/