Statutes | WOTCL Title V Chapter 1 ยง 5.114 | 2020
A. Fiduciary Duty. All persons acting under a power of attorney, limited guardians, guardians, conservators and any person or agency appointed to act on behalf of a minor under this Statute acts in a fiduciary capacity. As a fiduciary, one owes a duty to act in the best interest of the minor, exercising sound judgment and avoiding conflicts of interest. Any person acting under power of attorney, limited guardian, guardian, or conservator, breaching his/her fiduciary duty will be liable for any damages resulting from such breach.
B. Power of Attorney. A parent, legal custodian, or by a properly executed power of attorney, may delegate any powers of a parent regarding the care, custody and property of a minor child to another person. Said powers include but are not limited to the following: the consent to admission to a hospital or school, consent to secure routine dental care, non-surgical medical care and emergency dental, medical or surgical treatment. The delegation does not include power to consent to marriage, non-emergency elective surgery or adoption. The delegation shall be valid for six (6) months from the date of execution and may be revoked in writing, at any time by the person or agency delegating the power. A person acting under a power of attorney may be referred to as an "attorney in fact", "agent" or "power of attorney." The delegation is renewable upon the reexecution of the document.
C. Voluntary Guardianship
1. Establishment. The Court may establish a voluntary guardianship upon petition of the custodial parent(s) only, under such terms and conditions as the Court sets forth in the written order. An order granting a voluntary guardianship shall set forth provisions regarding visitation, support, duration, or any other condition related to the childs care. The Court shall hold a hearing on the petition within thirty days of receipt of the petition.
2. Annual reports. Voluntary guardians shall file an annual report to the Court providing an update on the condition of the ward and an accounting of funds collected and funds expended on behalf of the ward. The reports shall be available for review by interested parties.
3. Annual Review. Voluntary guardians shall schedule annual review hearings in conjunction with the filing of annual reports. Any interested party may request additional hearings.
4. Resignation. Any voluntary guardian who wishes to resign, may petition the Court setting forth the reasons for the request. The Court shall review a final accounting prepared by the voluntary guardian. If the Court is satisfied, it may accept the resignation, and discharge the voluntary guardian. The voluntary guardian remains liable for all matters occurring from the time of appointment to the time of discharge.
5. Termination. The parties to the guardianship may file a petition for termination of the guardianship. The Court must hold a hearing within 30 days of receipt of the petition to terminate the guardianship to determine whether termination of the guardianship is appropriate.
6. Appointment of Successor. Within 30 days of the removal, death, or resignation of a voluntary guardian the Court shall appoint a successor following the same criteria provided for in the original appointment.
C. Full Guardianship
1. Purpose. The Childrens Court may appoint guardians for children under the Courts jurisdiction. Unless otherwise specified by the Court, a guardian appointed shall be responsible for the care, custody and education of the child until such child arrives at the age of eighteen (18) years, dies, is emancipated by the Court, or until the guardian is legally discharged.
2. Grounds. The Court may appoint a guardian for a child if parental rights of both parents or of the surviving parent, have been terminated or suspended by prior Court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetence, by disappearance, abandonment, or by confinement in a place of detention.
3. Who may file. The Department, the proposed guardian the child if at least fourteen (14) years of age, or a childs guardian ad litem may file a petition for full guardianship.
4. Notice and hearing. Upon receipt of a petition for full guardianship the Court shall:
a. Transmit a copy of the petition to the Department with a written request to the Department for a full guardianship assessment
b. The Department shall complete the assessment within twenty days of receipt of the request
c. The court shall hold a hearing on the petition within fourteen days of receipt of the assessment from the Department.
5. Contents of Petition. The petition for full guardianship shall include the following to the best of the petitioners knowledge, information and belief:
a. The full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward
b. The full name, address, tribal affiliation, relationship, if any, to the minor, of the petitioner, and the petitioners interest in the proceeding
c. The names and addresses of the minors parents, if living, and other persons known to have an interest in the petition for the appointment of a full guardian the name and date of death of the minors deceased parent or parents, if applicable
d. The basis for the Courts jurisdiction
e. The name and address of the person or agency having legal or temporary custody of the proposed ward
f. A statement of the reason that the appointment of a full guardian is sought and whom the petitioner recommends to have appointed as full guardian and
g. A full description and statement of value of the minors assets and liabilities with an estimate of the value of any property owned, possessed, or in which the proposed ward has an interest, including any income and accounts receivable to which the proposed ward is entitled.
h. Any petition brought pursuant to this Section shall be signed and dated by the petitioner.
6. Full Guardianship Assessment. Upon the filing of a full guardianship petition, the Court shall immediately request that the Department submit a full guardianship assessment on the proposed guardian and the proposed ward. The guardianship assessment shall contain the following information:
a. Address of the proposed guardian
b. Identifying information of the proposed full guardian and members of the proposed full guardian&rsquos household
c. Criminal records check and/or safety assessments of all household members of the proposed full guardians household
d. The ability of the proposed full guardians to provide for the physical and emotional well-being of the child
e. Any other information deemed relevant by the Department.
7. Establishment of Full Guardianship. If the Court finds that a full guardianship is in the best interest of the ward, the Court shall grant the petition for full guardianship. An order granting a full guardianship shall set forth provisions regarding visitation, support, fiduciary obligations of the full guardian, and/or any other condition related to the care of the ward.
8. Powers and Duties of a Full Guardian. To the extent that it is not inconsistent with the terms of any order of the Court, a full guardian has the following powers and duties:
a. The full guardian is entitled to custody of the ward and shall make provisions for the wards care, comfort, and maintenance, and shall, as appropriate to the wards needs, arrange for the wards training, education, employment, and rehabilitation. The full guardian shall take reasonable care of the wards clothing, furniture, vehicles, and other personal effects that are with the ward
b. The full guardian shall have authority to consent to any medical, legal, psychological, or other professional care, counsel, treatment, or service for the ward. The full guardian may give any other consent or approval on the wards behalf that may be required or in the wards best interest.
9. Support and Reimbursement. The Court may order the wards parents to pay child support. The full guardian is entitled to be reimbursed out of the wards estate for reasonable and proper expenditures incurred in the provision of care of the ward. The Court may order monthly reimbursement payments to the guardian upon request, subject to the availability of funds.
10. Annual Reports. The full guardian shall file an annual report with the Tribal Court providing an update on the condition of the ward and an accounting of funds collected and funds expended on behalf of the ward. The reports shall be available for review by interested parties.
11. Annual Review Hearings. The full guardian shall schedule annual review hearings in conjunction with the filing of annual reports. Any interested party may request additional hearings.
12. Resignation. A full guardian who wishes to resign, may petition the Court setting forth the reasons for the request. The Court shall review a final accounting prepared by the full guardian. If the Court is satisfied, it may accept the resignation, discharge the full guardian and appoint a successor. The full guardian remains liable for all matters occurring from the time of appointment to the time of discharge.
13. Appointment of Successors. Upon the removal, death, or resignation of a limited guardian, guardian, or conservator, the Court shall appoint a successor following the same criteria provided for in the original appointment.
D. Conservatorship. The Court may upon the filing of a conservatorship petition appoint a conservator for a minor.
(Source: WOS 2012-010, August 5, 2012, Section XIV)