Purpose: The purpose of this chapter is to establish a formal procedure enabling the Tribal Court to provide for the protection of the property and welfare of persons closely tied to the Kenaitze Indian Tribe.
Explanatory Notes:
1. Appointing a Conservator: A person's property, which is referred to as his or her "estate" is protected by the appointment of a conservator. A common example of such a situation is the case of an elderly person who is mentally competent and able to care for himself or herself physically, but does not have the ability to manage his or her assets. In that case, appointment of a conservator to manage the property and protect the assets is appropriate.
2. Appointing a Guardian: A guardian is appointed to care for the minor or incapacitated person's person, rather that that person's property. Thus, the guardian arranges and provides for such things as food, shelter, clothing, obtaining medical care, and other things of a personal nature.
3. Appointing a Conservator and a Guardian: In some cases, it might be appropriate to appoint both a conservator and a guardian for a particular person. The same person might act as both conservator and guardian, or different individuals may be appointed to fill each position.

Section 2. Definitions

"Conservator" means a person appointed as caretaker and protector to look after the property of a minor or incapacitated person.

"Guardian" means a person appointed as custodian of a minor or incapacitated person.

"Incapacitated person" means a person, other than a minor, who is unable, without assistance, to properly manage or take care of himself of herself or their personal affairs.

"Minor" means an unmarried person who is younger than 18 years of age.

"Ward" means a person for whom a guardian or conservator has been appointed.

Section 3. Jurisdiction

The Tribe has authority and jurisdiction to preside over the matters in this chapter as set forth in the Domestic Relations Code at Chapter 1, Section 2.

Section 4. Commencement of Proceedings

Proceedings for the appointment of a conservator and/or guardian shall be commenced in the Tribal Court by filing a Petition to Use the Tribal Court.

Section 5. Persons Entitled to File Petitions

The following persons are entitled to file a petition for the appointment of a conservator and/or guardian:

A family member of the proposed ward; and
Any interested party who has a close connection to the proposed ward.

Section 6. Contents of Petition

A petition for the appointment of a conservator and/or guardian shall contain the following information:

The name and address of the petitioner.
The name, age and address of the proposed ward.
The facts that make the appointment of a conservator and/or guardian necessary.
The name, age and address of the proposed guardian or conservator and the relationship of the proposed guardian or conservator to the proposed ward. If an alternate proposed guardian or conservator is proposed, include the same information for the alternate.

Section 7. Notice of Proceedings

Within 10 days after the filing of a petition for the appointment of a conservator and/or guardian, the Tribal Court shall give notice of the proceedings to the following persons:

The children, parents, siblings and spouse of the proposed ward; and
If the petition is for the appointment of a conservator, to the creditors of the ward.

Notice shall be given to the persons above in compliance with Section 15 of the Tribal Court Code.

Section 8. Preference in Appointing Conservator and/or Guardian

The parents of a minor or incapacitated person, or either of them, if qualified and suitable, shall be preferred over all others for appointment as conservator and/or guardian for the proposed ward. A second preference shall be made for the adult children of the proposed ward. Subject to these preferences, the Tribal Council shall recommend for appointment as conservator and/or guardian for a proposed ward the qualified person most suitable who is willing to serve, having due regard, among other factors, to:

Any request for the appointment as conservator and/or guardian for a proposed ward contained in a written instrument executed by the proposed ward while competent.
Any request for the appointment as conservator and/or guardian for a proposed ward contained in a will or other written instrument executed by a parent of the proposed ward.
Any request for the appointment as a conservator and/or guardian for a minor 14 years of age or older made by the minor.
The relationship by blood or marriage of the proposed conservator and/or guardian to the proposed ward.

Section 9. Hearings; Notice

The Tribal Court shall schedule and conduct a hearing to consider the appointment of a conservator and/or guardian pursuant to the Petition filed with the Tribal Court. At the hearing interested persons shall be entitled to present testimony and other relevant evidence. Notice of the hearing shall be to the same persons entitled to receive notice pursuant to Section 7, above, and shall also be made in the same manner.

Section 10. Emergency Orders

When necessary for the protection of the proposed ward or the ward's property, the Tribal Court may issue an emergency order appointing a conservator and/or guardian pending a formal hearing provided for in Section 9, above. The emergency order shall be effective for no longer than 60 days.

Section 11. Appointment of Spokesman for Proposed Ward

Upon request or upon its own motion, the Tribal Council may appoint a spokesman to represent the proposed ward in proceedings governed by this Chapter.

Section 12. Home Evaluations, Physical and Mental Examinations

Upon request or upon its own motion the Tribal Court may order the proposed ward to be examined by a physician, psychologist or other person who shall submit a report in writing to the Court and may order a home study of the home of the proposed conservator/guardian.

Section 13. Findings and Appointment

The Tribal Court may appoint a conservator and/or guardian as requested if the Court is satisfied that:
1. The proposed ward is either a minor or incapacitated person;
2. The appointment is necessary or desirable as a means of providing continuing care and supervision of the proposed ward and/or the property of the proposed ward; and
3. The proposed conservator and/or guardian is both qualified and suitable, and is willing to serve.
Based on the information provided to the Tribal Court, the Court shall make a guardianship recommendation that is no more restrictive upon the liberty of the ward than is reasonably necessary to protect the ward.

Section 14. Tribal Court Recommendation and Order

After completion of the hearing, the Tribal Court shall issue a written order. Thjs written order shall include the following: 1) a statement of all relevant facts used by the Court in making its recommendation for appointment of a conservator and/or guardian, and 2) the Tribal Court's recommendation regarding the appointment of a conservator and/or guardian and the reasons for making that recommendation.

Section 15. Effect of Accepting Appointment as Conservator and/or Guardian

By accepting appointment, a conservator and/or guardian whether a tribal member or a non-tribal member, submits personally to the jurisdiction of the Tribal Court in any proceeding relating to the conservatorship/guardianship.

Section 16. Termination or Removal of Conservatorship and/or Guardianship

A conservatorship and/or guardianship may be terminated by Tribal Court order upon notice to interested persons and a hearing in the Tribal Court on the removal or termination. The Tribal Court may, in conjunction with termination or removal, require the conservator and/or guardian to provide a full account of the financial affairs of the ward and may also direct that an audit be conducted of the ward's financial affairs. The Tribal Court shall enter a written order of termination.

Section 17. Resignation of Conservator or Guardian

Persons desiring to resign as a conservator or guardian shall submit their resignation to the Tribal Court. The Tribal Court shall accept the resignation after a showing that no other actions in the interim are necessary to protect the ward or the estate of the ward. The Tribal Court shall enter an order confirming the resignation.

Section 18. General Powers of Guardians

In the general performance of powers and duties respecting the ward, a guardian of a minor or incapacitated person:

May, to the extent that it is consistent with the terms of the Court order relating to the detention or commitment of the ward, have custody of the ward and establish the ward's place of abode;
If entitled to custody of the ward, shall provide for the care, comfort and maintenance of the ward and, whenever appropriate, arrange for training and education of the ward. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and begin protective proceedings if other property of the ward is in need of protection;
May consent to or approve any necessary medical or other professional care, counsel, treatment or service for the ward; and
May do all other things necessary for the protection of the ward.

A guardian is not liable to third persons for acts of the ward solely by reason of the guardian and ward relationship.

Section 19. General Powers of Conservators.

Unless otherwise specified by the Court, the following are the general powers of the conservator:

Collect, hold and retain assets of the estate, including land wherever situated, until, in the conservator's judgment, disposition of the assets should be make, and the assets may be retained even though they include an asset in which the conservator is personally interested. Actual disposition of the assets is not permitted without a specific order;
Receive additions to the estate;
Continue or participate in the operation of any business or other enterprise;
Deposit estate funds in a bank including a bank operated by the conservator;
Insure the assets of the estate against damage or loss and the conservator against liability with respect to third persons;
Pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration and protection of the estate;
Pay any sum distributable to a ward or dependent of the ward by paying the sum to the distribute or by paying the sum for the use of the distribute either to his guardian or if none, to a relative or other person with custody of his person, subject to any programming requirements that may by established by the court; and
Execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

Section 20. Powers of Conservator Pursuant to Tribal Court Order

Upon authorization by the Tribal Court a conservator may exercise the following powers:

Acquire an undivided interest in any estate asset in which the conservator, in any fiduciary capacity holds an undivided interest;
Invest and reinvest estate funds as would a trustee;
Acquire or dispose of an estate asset including non trust land wherever situated for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset in connection with the exercise of any power vested in the conservator;
Make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;
Vote a security, in person or by general or limited proxy;
Employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator to advise or assist him in the performance of his administrative duties, to act upon their recommendation without independent investigation, and instead of acting personally to employ one or more agents to perform any act or administration, whether or not discretionary;
Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties;
Prosecute claims of the protected person including those for his personal injury.

Section 21. Reports to the Tribal Court

The Tribal Court may require the conservator and/or guardian to submit periodic reports to the Tribal Court in the form prescribed by the Court. The Court may require the report at any time and no less than one time per year.

Section 22. Bonds

The Tribal Court may in its discretion require the posting of a bond by a conservator in an amount to be determined by the Tribal Court.

Section 23. Civil Penalties

Any conservator or guardian who is found by the Court after a hearing to have stolen, diverted, or grossly abused the funds or property of a ward may be subject to any of the civil penalties available to the Court as set forth in the Tribal Court Code at Section 18.

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Domestic Relations Code

Chapter 11: Conservators and Guardians

Section 1. Purpose and Explanatory Notes