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Minnesota Chippewa Tribe - Leech Lake Band - Tribal Code

 

Title 3. Child and Family Protection
3-23. Guardianship

LLOjibwe JCT3 CFC § 3-23
3-23. Guardianship

A. Purpose

The Tribal Court, when it appears necessary or convenient, may appoint guardians for the persons and/or property of either children under the Court's jurisdiction or incompetents who have no guardian legally appointed. Such appointment may be made on the petition of a relative or other person on behalf of the child or incompetent, or a petition of the child if at least fourteen (14) years of age. Before making such appointment, the Court must cause such notice as the Court deems relatives of the child as the Court may deem proper, and in cases of adult incompetents, the Court may cause notice to be given to the incompetent at least five (5) days before hearing the petition.

If a child is under the age of fourteen (14) years, the Court may nominate or appoint his guardian. If he is fourteen (14) years of age or older, he may nominate his own guardian who, if approved by the Court, must be appointed accordingly. If the guardian nominated by the child is not approved by the Court, or if the child resides outside of the reservation, or if, after being duly cited by the Court, he neglects for ten (10) days to nominate a suitable person, the Court may nominate and appoint the guardian in the same manner as if the child were under the age of fourteen (14) years.

When a guardian has been appointed by the Court for a child under the age of fourteen (14) years, the child, at any time after he attains that age, may nominate his own guardian, subject to the approval of the Court. A guardian appointed may as specified by the Court have the custody and care of the child and the care and management of his property until such child reaches the age of eighteen (18) marries, or until the guardian is legally discharged, provided, however, that said guardian shall not have the authority, without express written consent of the Court, to dispose of any real or personal property of the child in any manner. Said guardian shall have the authority to consent to the medical care and treatment of the child.

B. Types of Guardianship

The types of guardianship shall include guardianship of property and/or guardianship of the person. Guardianship of the person shall include both temporary guardianship and permanent guardianship.

C. Guardianship of Property

The Court may appoint a guardian of the property of a child or incompetent person under such terms and conditions as the Court sets forth in the written order. The guardianship may cover all property until the child reaches eighteen (18) years of age or until the incompetent person becomes competent or it may be limited to only specific property or a specific legal action as set forth in the written order. A temporary or permanent guardianship of the person may also include guardianship of the child's property if set forth in the written order.

D. Permanent Guardianship

The Court may appoint a permanent guardian for the child under such terms and conditions as the Court sets forth in the written order. Permanent guardianship provides for permanent custody of a child to someone other than the parent(s), although there is no termination of the parental rights of the parents. There shall be a presumption of continued permanent guardianship in order to provide stability for the child. Permanent guardianship shall only be terminated based upon the unsuitability of the permanent guardian(s) rather than the competency or suitability of the parent(s). The parent(s) and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

E. Temporary Guardianship

The Court may appoint a temporary guardian under such terms and conditions as the Court sets forth in the written order. Temporary legal guardianship of a child under jurisdiction of the Court may also be granted to the Leech Lake Band, Department of Social Services. A temporary guardianship may be terminated if the Court determines that it is in the best interests of the child to change custody to the parent, guardian or custodian. The parent(s) and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

F. Who May File Guardianship Petition

Any person may file a petition for guardianship. The petition shall be initiated either by the proposed guardian or by the child if at least fourteen (14) years of age.

G. Contents of Guardianship Petition

The petition for guardianship shall include the following, to the best information and belief of the petitioner:

1. The full name, address and tribal affiliation of the petitioner;

2. The full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward;

3. The basis for the Court's jurisdiction;

4. The relationship of the proposed guardian to the proposed ward;

5. The name and address of the person or agency having legal or temporary custody of the proposed ward;

6. The type of guardianship requested;

7. In the case of alleged incompetent persons, the grounds for incompetence under this Title; and

8. A full description and statement of value of all property owned, possessed, or in which the proposed ward has an interest (if guardianship of property is requested).

All petitions must be signed and dated by the petitioners, and must be notarized or witnessed by a clerk of the Court.

H. Guardianship Report

Upon the filing of a guardianship petition, the Court shall immediately request that the social services department or other qualified agency conduct a guardianship report on the proposed guardian and on the proposed ward. The guardianship report shall contain all pertinent information necessary to assist the Court in determining the best interests of the proposed ward.

No determination can be made on a petition for guardianship until the report has been completed, submitted to and considered by the Court. The guardianship report shall be submitted to the Court no later than ten (10) days before the hearing. The Court may order additional reports as it deems necessary.

I. Guardianship Procedures

The procedures for guardianship hearings shall be in accordance with Sections 3-15C, 3-15D, 3-15F, 3-16, and 3-19 of this Code.

J. Management of Property

In the event that any guardian shall receive any money or funds of any child or incompetent person during his or her term of office as guardian, before taking and receiving into custody such money or funds, the guardian must secure a bond in such sum and with sufficient surety as ordered by the Court, conditioned that the guardian will faithfully execute the duties of his/her trust, and the following conditions shall form the part of such bond without being expressed therein:

1. To make an inventory of all the estate of his ward that comes into his possession or knowledge and to return the same within such time as the Court may order, and;

2. To dispose of and manage the estate according to law and for the best interests of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody and education of the ward, and;

3. To render an account on oath of the property, estate and money of the ward in his hands and all the proceeds or interests derived thereto, and of the management and disposition of the same, within three (3) months after his appointment, and annually, or at such other times as the Court directs, and at the expiration of his trust, to settle his accounts with the Court or with the ward if he be of full age, or his legal representative, and to pay over and deliver all the estate, moneys and effects remaining in his hands, or due from him on such settlement to the person who is legally entitled thereto.

The funds of any child or incompetent must be used by his guardian solely for the support and education of such child and for the support of such incompetent, and shall be expended by the guardian in a reasonable manner according to the circumstances and station in life of such award, and in such manner as can reasonably be afforded according to the income and estate of said ward, provided, however, the guardian shall be permitted to deduct the cost of the required bond and court costs, including attorney fees, associated with his/her duties as guardian.

If determined to be appropriate by the Court, the written order may set forth that the child's property may not be used for the child's care, but rather to be managed for the child until the child reaches the age of eighteen (18) or is emancipated by the Court.

K. Incompetent Persons

In case of incompetent persons, if after a full hearing and examination upon such petition, and upon further proof by the certificates of at least two qualified physicians showing that any person is incompetent it appears to the Court that the person in question is not capable of taking care of himself and of managing his property, the Court shall appoint a guardian of his person and estate within the powers and duties specified in this chapter.

Every guardian of an incompetent person appointed as provided herein has the care and custody of the person of his ward and the management of his estate until such guardian is legally discharged; he must give bond to such ward in like manner and with like conditions as before specified with respect to the guardianship of a child.

A person who has been declared incompetent or the guardian, or any relative of such person within the third degree or any friend may apply to the Court to have the fact of his restoration to capacity judicially determined. The petition shall be verified and shall state that such person is then sane or competent. The Court shall require notice to be given of a hearing upon said petition at some date after said petition has been filed; and at the hearing upon said petition, witnesses shall be examined and a determination made by the Court as to whether the petition should be granted and the incompetent person be declared of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged and the guardianship of such person, if such person shall not be a child, shall cease.

Resolution No. 03-62, presented and acted upon on December 23, 2002.

Leech Lake Ojibwe Jud. Code, T. 3, Child & Fam. Protect. Code § 3-23, LLOjibwe JCT3 CFC § 3-23

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