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home : opinions : letters August 29, 2016

1/2/2013 11:17:00 AM
Letter: Navajo Nation needs new Adult Guardianship Act

To the editor:

The Navajo Nation does not currently have a statute that protects the rights of individuals facing guardianships based on a perceived disability. Navajo statutes in regard to adult guardianships are meager, with little to no guidance on how to proceed in order to guarantee the protection of rights of adults who are the subject to adult guardianships. The current code was written in 1945 and hasn't been updated. There are only five short sections concerning such guardianships under Navajo law.

When a person obtains a permanent guardianship over another, the ward is consequently deprived of his or her individual liberty. By its nature, appointing a guardian restricts a potential ward's ability to make independent life decisions. For example, the ward can no longer make independent decisions regarding basic needs, such as education, housing and medical treatment. Rather, their guardian makes these decisions for them. The Navajo Nation Bill of Rights specifically recognizes liberty as a fundamental human right. The liberty interest is also protected by the Navajo Nation Code: "nor shall any person within its jurisdiction . . . be deprived of life, liberty or property, without due process of law."

The Navajo Nation Supreme Court has held that due process requires "fundamental fairness in a Navajo cultural context," and that "strict standards of fairness and equity . . . are inherent in Navajo common law." Consequently, an individual subject to a guardianship proceeding is entitled to due process with the highest standards. Current Navajo law covering adult guardianship violates this right to due process. The law's lack of specificity and clear procedures do not adequately protect an individual's liberty interest. There are no clear guidelines to help the court determine the guardianship process, whether a guardian is necessary, and what controls should be imposed upon an appointed guardian.

To address this problem, the Native American Disability Law Center in collaboration with the Navajo Nation Advisory Council on Disabilities (NNACOD), proposes to draft an Adult Guardianship Act for the Navajo Nation. The proposed act will be crafted with Navajo cultural traditions in mind.

Under current Navajo law a court must decide after a hearing if the alleged incapacitated person is "incapable of taking care of himself and managing of his property." The statute, however, fails to define "incapacity."

The act proposed herein will define incapacity, specify a standard of proof and establish a procedure or process to guarantee that a potential ward receives proper notice of the guardianship proceeding. The statute will further guarantee the potential ward in a guardianship proceeding the right to legal counsel, and the right to appear, cross examine witnesses, and present evidence.

It will provide guidance for the court and the participating parties on what evidence is necessary to show capacity or lack thereof, which party has the burden of proof, and any presumptions that can be made. The act will give Navajo courts the ability to limit a guardianship, and specify the terms under which a guardianship can be limited. Furthermore, the act will specify the conditions under which a guardianship can be lifted or altered.

In this effort to address this major disability issue and need regarding the proposed Adult Guardianship Act, the Law Center and NNACOD welcomes comments and input from interested persons. Your comments or input can be sent to Hoskie Benally, Jr., at hbenally@nativedisabilitylaw.org.

Hoskie Benally

Native American Disability Law

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