Subchapter 5 - Guardianships

Part

A. Guardianship of Children
B. Guardianship of Adults


PART A

GUARDIANSHIP OF CHILDREN


Section

3201. Purpose.
3202. Nominating or Appointing a Guardian.
3203. Types of Guardianship.
3204. General Guardianship.
3205. Emergency Guardianship.
3206. Best Interest Factors.
3207. Who May File Guardianship Petition.
3208. Guardian Eligibility Factors.
3209. Contents of Guardianship Petition.
3210. Guardianship Report.
3211. Guardianship Procedures.
3212. Guardianship Order.
3213. General Guardian Duties, Powers, and Limitations.
3214. Emergency Guardian Duties.
3215. Management of Property.
3216. Annual Guardianship Report.
3217. Motions to Modify Guardianship Orders.
3218. Motions to Revoke Guardianship.
3219. Motions to Remove Guardian.
3220. Motions to Terminate Guardianship.


§ 3201. Purpose.

The purpose of a Guardianship is to provide a child with long term stability. In the event of a Guardianship petition arising from a voluntary placement agreement or Court order, when it appears that reunification with the child’s parents is not possible, the Court may appoint a Guardian for the person and/or property of a child under the Court’s jurisdiction.

Historical and Statutory Notes

Source:
Band Ordinance 01-96.
Band Ordinance 31-17.

§ 3202. Nominating or Appointing a Guardian.

The appointment of a Guardian may be made on the petition of a relative or other person on behalf of the child, or a petition of the child if the child is at least fourteen (14) years of age. Before making such appointment, the Court must cause such notice as the Court deems reasonable to be given to any person having the care of the child, and to such other relatives of the child as the Court may deem proper. If the Guardianship petition arises from a Child Protection case, notice shall be given to all parties involved in the Child Protection case.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.01.
Band Ordinance 31-17.

§ 3203. Types of Guardianship.

The types of guardianship shall include General Guardianship and Emergency Guardianship.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.02.
Band Ordinance 31-17.

§ 3204. General Guardianship.

The Court may appoint a guardian for the child upon a finding of clear and convincing evidence that the guardianship is necessary for the care of the child and under such terms and conditions as the Court sets forth in the written order. A guardianship provides for permanent custody of a child to someone other than the parent, although there may be no termination of the parental rights of the parents. A guardianship shall also include the management of the child’s property, if he has any, according to § 3215 of this chapter. The parent and the child’s extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.04.
Band Ordinance 31-17.

§ 3205. Emergency Guardianship.

  • (a) The Court may appoint an emergency guardian under such terms and conditions as the Court sets forth in the written order. An emergency guardianship shall be in effect no longer than one hundred eighty (180) days at which point the Court must review its status. Upon review, the emergency guardianship may be terminated if the Court determines that it is in the best interests of the child to return the child to the parent, guardian or custodian, or be changed to general guardianship status pending the procedures set forth in this subchapter. During the emergency guardianship, the parent and the child’s extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

  • (b) An emergency guardianship may be granted through an ex parte motion for guardianship only when it is established by clear and convincing evidence that immediate and irreparable injury, loss, or damage will result to the child before the adverse party or that party's attorney can be heard in opposition. In any application for ex parte relief, the Court may require a demonstration or explanation of the efforts made to notify affected parties, or the reasons why such efforts were not made. The reasons supporting ex parte relief should be recited in the order.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.05.
Band Ordinance 31-17.

§ 3206. Best Interest Factors.

Best Interests of the Child is defined as a variety of factors including:

  • (a) the ability of the Band and community to provide for the care of the child;

  • (b) the wishes of the Band, parents, party or parties;

  • (c) the preference of the child if the child is fourteen (14) years of age or older and can express a preference;

  • (d) the intimacy of the relationship between the parties and the child demonstrating a strong attachment of the child to the prospective guardian and a strong commitment of the prospective guardian to care for the child;

  • (e) the child’s adjustment to home, school and community;

  • (f) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

  • (g) the permanence, as a family unit, of the existing or proposed guardian’s home;

  • (h) the mental and physical health of all individuals involved;

  • (i) the capacity and disposition of the parties to give the child love, affection, guidance and to continue educating the child in the child’s culture and heritage.

 

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3207. Who May File Guardianship Petition.

A guardianship petition under this Section shall be initiated by:

  • (a) a petition of any person on behalf of the child;

  • (b) a petition of the child himself if he is fourteen (14) years of age or older; or

  • (c) the prospective guardian.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.06.
Band Ordinance 31-17.

§ 3208. Guardian Eligibility Factors.

  • (a) Petitioners for guardianship must be willing to submit to a background check as part of their petition. If the petition for Guardianship does not arise from a Child in Need of Protection or Services case, the Court may require the petitioner to pay a background check fee to Family Services to cover the cost of the background check.

  • (b) Any person whose background reveals any convictions involving any of the crimes below shall not be granted guardianship:

    • (1) homicide or attempted homicide;

    • (2) rape, sexual assault, molestation, or exploitation; or

    • (3) offenses committed against children (including child abuse).

  • (c) Petitioners who have any felony or two (2) or more misdemeanor convictions within the last five (5) years for the following may be subject to further inquiry from the Court to determine the suitability of granting the guardianship:

    • (1) physical assault;

    • (2) battery;

    • (3) spousal abuse; or

    • (4) drug-related offenses.

  • (d) Any person with a diagnosed mental illness that will adversely affect the ability to carry out guardian duties will not be granted guardianship. The Court may ask for additional information regarding a person’s mental health status if it has reason to believe the child’s best interests could be adversely affected.

  • (e) A person with a documented history of chemical dependency problems within the last ten (10) years may be required by the Court to submit to assessments such as a rule 25 test, proof of attendance at AA meetings, or testimonies from other Band members as to the prospective guardian’s sobriety before the guardianship can be granted.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3209. Contents of Guardianship Petition.

  • (a) 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 (if any) of the petitioner;

    • (2) The full name, sex, date and place of birth, residence and tribal affiliation of the child;

    • (3) The basis for the Court’s jurisdiction;

    • (4) The relationship of the proposed guardian to the child;

    • (5) The name and address of the person or agency having legal or temporary custody of the child;

    • (6) The type of guardianship requested;

    • (7) A full description and statement of value of all property owned, possessed, or in which the child has an interest (if any);

    • (8) A brief statement as to the motivation for becoming a guardian; and

    • (9) The name of any potential successor guardians proposed. Potential successor Guardians must be willing to submit to a background check at the time of the original petition and are subject to the same eligibility factors found in § 3208 of this chapter. Successor Guardians are also subject to the same placement preference order set out in § 3165 of this chapter.

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

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.07.
Band Ordinance 31-17.

§ 3210. Guardianship Report.

  • (a) Upon the filing of a guardianship petition, the Court shall immediately request that the Family Services Department or other qualified agency conduct a guardianship report on the proposed guardian and assess the best interests of the child. The guardianship report shall contain:

    • (1) A background check and UA on all household members age thirteen (13) years and older;

    • (2) Housing status and condition of house of the proposed guardian, including the Family Services personnel’s own observations of cleanliness and safety;

    • (3) A plan of care for the child to be developed by the Family Services worker and proposed guardian;

    • (4) Financial statement of the guardian;

    • (5) Financial statement of the child (if any);

    • (6) Any special services required for the care of the child;

    • (7) References from community members such as neighbors and additional family members or friends; and

    • (8) The Family Services Staff member’s own observations regarding the capabilities of the proposed guardian to care for the child.

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

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.08.
Band Ordinance 31-17.

§ 3211. Guardianship Procedures.

  • (a) The petitioner and child, if age fourteen (14) or older, shall appear personally at the hearing to establish the guardianship unless excused by the Court for good cause shown.

  • (b) Before conferring a guardianship, the Petitioner must establish and the Court must determine that clear and convincing evidence supports a finding that:

    • (1) the child’s parents have consented to the guardianship via a voluntary placement agreement;

    • (2) there is not a parent available and willing to care for the child; or

    • (3) if there is a parent available and willing to care for the child:

      • (i) the child meets the definition of a child in need of protection because of conduct by the parent; or

      • (ii) there is a substantial probability of future abuse or neglect if the child were returned to the parent, and the conditions are unlikely to improve within a reasonable period of time, or there has been a determination that adoption or reunification are not appropriate permanency options for the child.

  • (c) If the child is fourteen (14) years of age or older, the child shall be consulted regarding the proposed guardianship by the Court.

  • (d) If the Court is satisfied as to the suitability of the guardianship, it may:

    • (1) enter an order granting a general guardianship under such terms or conditions that the Court finds appropriate;

    • (2) enter an order granting an emergency guardianship for a stated period under such terms or conditions that the Court finds appropriate;

  • (e) The term of a general guardianship expires when the child reaches the age of eighteen (18) or the guardianship is terminated by order of the Court.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.09.
Band Ordinance 31-17.

§ 3212. Guardianship Order.

An order establishing guardianship of a child shall include a specific statement establishing who has custody of the child, a time-frame (if emergency guardianship) and the specific circumstances in which a parent may petition the Court for review of custody (if any). Before issuing the order, the Court must ensure that the prospective guardian understands his duties and powers as set out in § 3213 of this chapter along with any other information the Court finds pertinent.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3213. General Guardian Duties, Powers, and Limitations.

  • (a) Traditional Ways and Cultural Ties. Any appointment under this section shall encourage and arrange for a child to maintain cultural ties with the Band, to be informed of the tradition and customs of the Band, to attend powwows and ceremonies, and to have the opportunity to learn his native language.

  • (b) Duties.

    • (1) A Guardian appointed by the Court shall:

      • (i) Use the degree of care, diligence, and good faith when acting on behalf of the child that an ordinarily prudent person exercises in his own affairs;

      • (ii) Advocate for the child’s best interests;

      • (iii) Demonstrate the utmost degree of trustworthiness, loyalty, and fidelity in relation to the child; and

      • (iv) Maintain a fiduciary duty when dealing with the child’s finances. A fiduciary duty requires that the Guardian consider the child’s interests over his own.

    • (2) A Guardian must also:

      • (i) Notify the Court of any change in address of the guardian or child;

      • (ii) Make medical, dental and psychiatric care decisions;

      • (iii) Make decisions related to education;

      • (iv) Make decisions related to mobility and travel;

      • (v) Give consent to military service where appropriate;

      • (vi) Consent/refuse visitation by relatives, subject to limitations set out in the Court order.

  • (c) Powers. A Guardian appointed by the Court may be bestowed with the following powers:

    • (1) The ability to manage the child’s estate, while maintaining the fiduciary duty set forth in subsection (b) above.

    • (2) The ability to seek child support according to the policies and procedures set forth in Chapter 12 of this Title.

  • (d) Limitations. When a guardian has been appointed by the Court for a child, the Court may grant legal custody and care of the child and management of his property until such child arrives at the age of eighteen (18), marries, is emancipated by a court of proper authority, 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. The guardian is also prohibited from using coercion, threats or manipulation to access the child’s funds upon the child reaching the age of eighteen (18). The disposal of the child’s real or personal property in any way shall subject said person to contempt of court and/or to civil penalties or remedies, including restitution provided by the Court.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3214. Emergency Guardian Duties.

  • (a) Traditional Ways and Cultural Ties. Any appointment under this section shall encourage and arrange for a child to maintain cultural ties with the Band, to be informed of the tradition and customs of the Band, to attend powwows and ceremonies, and to have the opportunity to learn his native language.

  • (b) Duties.

    • (1) A Guardian appointed by the Court shall:

      • (i) Use the degree of care, diligence, and good faith when acting on behalf of the child that an ordinarily prudent person exercises in his own affairs;

      • (ii) Advocate for the child’s best interests;

      • (iii) Demonstrate the utmost degree of trustworthiness, loyalty, and fidelity in relation to the child; and

      • (iv) Maintain a fiduciary duty when dealing with the child’s finances. A fiduciary duty requires that the Guardian consider the child’s interests over his own.

    • (2) A Guardian must also:

      • (i) Notify the Court of any change in address of the guardian or child;

      • (ii) Make medical, dental and psychiatric care decisions;

      • (iii) Make decisions related to education;

      • (iv) Make decisions related to mobility and travel;

      • (v) Give consent to military service where appropriate;

      • (vi) Consent/refuse visitation by relatives, subject to limitations set out in the Court order.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3215. Management of Property.

  • (a) Within forty-five (45) calendar days after the appointment of a general guardian, the guardian shall prepare and submit to the Court an inventory and appraisal of the Child’s belongings and estate.

  • (b) The appraisal shall be made by a disinterested person who shall certify under oath to their appraisal and may receive reasonable compensation for their services.

  • (c) No appraisal shall be required of items of obvious, readily ascertainable value, e.g., bank account assets, or where the value of the estate is reasonably believed by the guardian to be less than $1,000.00. If no appraisal is required, the guardian shall certify under oath to the obvious or estimated value of the assets not appraised.

  • (d) A copy of the appraisal will be sent by the Court Administrator to the Office of Management & Budget for record keeping. OMB is charged with the joint responsibility to assure that none of the child’s Trust account is spent by the Guardian without prior permission by the Court per § 3213 of this chapter.

  • (e) In the event of a Guardian petitioning the Court for permission to dispose of the child’s property, the Guardian must demonstrate that the need was an unforeseen emergency and would be used for the health, education, or general welfare of the child. The Court shall review the petition and, if approved, provide an order allowing the Guardian to apply to the Band Assembly for a Hardship Loan. The Guardian must receive approval from Band Assembly before access to the child’s funds may be granted.

  • (f) Nothing in this section shall preclude a child from inheriting from his biological family members. In the event of the child inheriting after the Guardianship has been established, the Guardian has thirty (30) calendar days to submit a revised appraisal to the Court.

  • (g) In the event of the child’s death, any physical and/or monetary property belonging to the child shall be distributed to the child’s heirs.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.10.
Band Ordinance 31-17.

§ 3216. Annual Guardianship Report.

General Guardians shall file an annual report on or about the anniversary of the guardianship or at such a time as is ordered by the Court. The purpose of said report is to update the Court on the status of the guardianship and well-being of the child. The report shall include the following information:

  • (a) A statement regarding the child’s status in school (i.e., whether he is attending regularly, has had any incident reports and any steps taken to correct any problems that have arisen);

  • (b) A statement regarding the child’s health and overall well-being (i.e., regular well-child check-ups, medical care for any injuries, or hospitalization);

  • (c) A statement regarding the child’s mental health and whether any steps have been taken to address any issues that have come up (i.e., whether the child is seeing a counselor or spiritual advisor or participating in any therapy);

  • (d) A statement regarding any interactions the child has had with law enforcement and the outcome of those interactions (i.e., whether the child has been in Court, sentenced, or on probation, etc.); and

  • (e) A statement accounting for any of the child’s property, which has been disposed of within the last year and the reason for its disposal.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3217. Motions to Modify Guardianship Orders.

  • (a) The Court may modify any order or decree made by it, but no modification of an order shall be made until there has been a hearing after due notice to all persons concerned.

  • (b) The Court may hold a hearing to modify a Guardianship order at any time upon motion of any of the following:

    • (1) the child age fourteen (14) years or older.

    • (2) the child’s parents.

    • (3) the guardian of the child.

    • (4) the guardian ad litem.

  • (c) The motioning party bears the burden of proving by a preponderance of the evidence that modification of the Guardianship order is in the best interest of the child as set out in § 3206 of this chapter.

  • (d) The motioning party may seek a modification of a variety of things, including, but not limited to:

    • (1) child Support.

    • (2) the power to manage the child’s property.

    • (3) a change from Emergency to General Guardian.

    • (4) creating or changing a visitation schedule for parents or other family members.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3218. Motions to Revoke Guardianship.

  • (a) Revocation is the voluntary relinquishment of a guardianship by a guardian. The need for a guardianship itself may continue with the Band Family Services Department taking custody of the child and renewing a search for a suitable Guardian.

  • (b) The Court may set aside any order or decree made by it, but no revocation of an order shall be made until there has been a hearing after due notice to all persons concerned.

  • (c) The Court may hold a hearing to revoke a guardianship order at any time upon the motion of the guardian.

  • (d) The motioning party bears the burden of proving by a preponderance of the evidence that revocation of the guardianship is in the best interests of the child as set out in § 3206 of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3219. Motions to Remove Guardian.

  • (a) Removal is the process to discharge a guardian from his role due to his failure to perform the guardian’s duties as set forth in § 3213 of this chapter. This may include a failure to participate in the plan of care set forth in the original Court order for Guardianship. The need for a guardianship itself may continue with the Band Family Services Department taking custody of the Child and renewing a search for a suitable Guardian.

  • (b) The Court may order a removal of a guardian for cause, but no removal shall be made until there has been a hearing after due notice to all persons concerned.

  • (c) The Court may hold a hearing to remove a guardian at any time upon the motion of any of the following:

    • (1) the child age fourteen (14) years or older.

    • (2) the child’s grandparent or parent.

    • (3) the child’s relatives having a legitimate interest in the particular case.

    • (4) the guardian ad litem.

    • (5) the Band’s Family Services Department.

  • (d) The motioning party bears the burden of proving by clear and convincing evidence that the guardian is or has been neglecting the child and/or estate and is or has been refusing or is unable to perform the guardian’s duties. The motion must include factual allegations of neglect or failure to fulfill the guardian’s duties.

  • (e) Nothing in this section precludes the Band Family Services Department from opening their own CHIPS investigations and/or petition against the guardian.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3220. Motions to Terminate Guardianship.

  • (a) Termination is the process whereby the entire guardianship is terminated. This can occur upon the child reaching the age of majority, the child becoming emancipated by the Court’s order, or a motion to terminate being granted.

  • (b) An order vesting legal custody of a child to an individual shall be for an indeterminate period.

  • (c) The Court, upon motion of a party seeking termination of a guardianship order and being satisfied all parties were properly notified of the motion, may schedule a hearing to consider termination of its order.

  • (d) The Court may hold a hearing to terminate a guardianship order at any time upon motion of any of the following:

    • (1) the child age fourteen (14) years or older.

    • (2) the child’s parents.

    • (3) the child’s grandparents.

    • (4) the guardian ad litem.

  • (e) The motioning party bears the burden of proving by clear and convincing evidence that that termination of the guardianship is in the best interest of the child as set out in § 3206 of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 25.04.
Band Ordinance 31-17.


PART B

GUARDIANSHIP OF ADULTS


Section

3221. Types of Guardianship.
3222. Grounds for Appointment of Guardian or Conservator.
3223. Contents of Guardianship or Conservatorship Petition.
3224. Guardianship and Conservatorship Report.
3225. Guardian and Conservator Eligibility Factors.
3226. Accounting.
3227. Motion to Modify Guardianship or Conservatorship.
3228. Motion to Revoke Guardianship or Conservatorship.
3229. Motion to Remove Guardian or Conservator.
3230. Motion to Terminate Guardianship or Conservatorship.


§ 3221. Types of Guardianship.

  • (a) The Court may appoint a guardian of the person, which entails the responsibility for the care and custody of the member. The Court may appoint a conservator of a member, which entails responsibility for the administration and management of the member's property. The Court shall explicitly state whether the appointment is a guardianship of the person, conservator or both based on the needs of the proposed ward and the abilities of the proposed guardian or conservator.

  • (b) The guardianship or conservatorship may be either temporary or permanent, based on the needs of the ward. The Court shall explicitly state whether the guardianship or conservatorship is temporary or permanent. If the guardianship or conservatorship is temporary, the Court shall establish regular review hearings every ninety (90) calendar days to reevaluate the needs of the ward.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3222. Grounds for Appointment of Guardian or Conservator.

  • (a) The Court, when it appears necessary in order to protect the best interests of a vulnerable adult member of the Mille Lacs Band, may appoint a guardian or conservator of the member of the tribe under the following circumstances:

    • (1) The adult is found to be incapacitated and incapable of caring for himself and such incapacity is a significant impediment to his health and well-being; or

    • (2) For purposes of appointment of a conservator, the adult is found to be unable or unwilling to competently administer his financial affairs.

  • (b) Whether a proposed ward is capable of caring for himself and/or his finances, shall be evaluated by at least two (2) qualified physicians who shall provide written statements as to their determinations.

  • (c) In addition to the testimony of the physicians in subsection (b) above, the Court shall review the Family Services report. The Court may also hear additional testimony from relevant sources such as the Elder Services investigator, Tribal Police, Family Services, or any other person with direct knowledge of the elder or vulnerable adult’s ability to care for himself and/or his finances.

  • (d) The determination of incapacitation shall be made only after petition, notice, and hearing.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3223. Contents of Guardianship or Conservatorship Petition.

The petition for guardianship or conservatorship shall include the following, as best the petitioner is able to ascertain in good faith:

  • (a) The full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward;

  • (b) The full name, address, age, and relationship if any to the proposed ward of the petitioner;

  • (c) The names and addresses of any other person seeking guardianship or conservatorship over the same proposed ward;

  • (d) The basis for the Court's jurisdiction;

  • (e) Whether the petitioner seeks appointment as guardian or conservator and a statement of the reason that the appointment is sought.

  • (f) A full description and statement of value of the proposed ward's 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 receivables to which the proposed ward is entitled.

  • (g) All petitions must be signed and dated by the petitioners, and must be notarized or witnessed by the Clerk of Tribal Court.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3224. Guardianship and Conservatorship Report.

Upon the filing of a petition for guardianship or conservatorship, the Court shall immediately order Family Services or other qualified agency to conduct a guardianship evaluation on the proposed guardian or conservator and on the proposed ward. The resulting guardianship report shall contain all pertinent information necessary to assist the Court in determining the best interests of the proposed ward, including a report on the guardian’s or conservator’s eligibility pursuant to the requirements of this section, as well as whatever other information the agency believes to be relevant. The report shall be filed with the Court within thirty (30) days and a copy shall be provided to all parties who have received notice of the petition.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3225. Guardian and Conservator Eligibility Factors.

  • (a) Petitioners for guardianship and conservatorship must be willing to submit to a finger-print background check and a urinalysis as part of their petition. For any party other than Family Services, the Court may require the petitioner to pay a background check fee to Family Services to cover the cost of the background check, except in cases of indigence.

  • (b) Any person whose background reveals any convictions involving any of the crimes below shall not be granted guardianship or conservatorship:

    • (1) homicide or attempted homicide;

    • (2) rape, sexual assault, molestation, or exploitation; or

    • (3) offenses committed against children (including child abuse) or other vulnerable adults.

  • (c) Petitioners who have any felony or two (2) or more of the following misdemeanor convictions within the last five (5) years may be subject to further inquiry from the Court to determine the suitability of granting the guardianship or conservatorship;

    • (1) physical assault;

    • (2) battery; or

    • (3) drug or controlled substance-related offenses.

  • (d) Any person with a diagnosed mental illness, which will significantly and adversely impair the ability to carry out guardian or conservator duties will not be granted guardianship or conservatorship. The Court may ask for additional information regarding a person’s mental health status if it has reason to believe the proposed ward’s best interests could be affected.

  • (e) A person with a documented history of chemical dependency problems may be required by the Court to submit to assessments as recommended by Mille Lacs Band Behavioral Health, proof of attendance at AA meetings, or testimonies from other reliable Band members as to the prospective guardian’s sobriety, before the guardianship can be granted.

  • (f) In conducting an inquiry into the suitability of the proposed guardian or conservator, the Court shall consider whether the person proposed to serve as guardian or conservator is insolvent or has declared bankruptcy during the five (5) years immediately prior to filing the guardianship or conservatorship petition, or has a conflict of interest that would preclude or substantially impact the person from acting in the proposed ward’s best interest.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3226. Accounting.

Upon appointment of guardianship and/or conservatorship, the guardian or conservator shall provide an accounting of the ward’s finances every thirty (30) calendar days to the Court. The accounting shall include all income and expenditures made with the ward’s money and/or any property sales or investments made on behalf of the ward.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3227. Motion to Modify Guardianship or Conservatorship.

  • (a) The Court may modify any order or decree made by it, but no modification of an order shall be made until there has been a hearing after due notice to all persons concerned.

  • (b) The Court may hold a hearing to modify a guardianship or conservatorship order at any time upon motion of any of the following:

    • (1) the ward;

    • (2) the guardian or conservator of the ward;

    • (3) the guardian ad litem; or

    • (4) the Mille Lacs Band Family Services Department.

  • (c) The motioning party bears the burden of proving by a preponderance of the evidence that modification of the Guardianship order is in the best interest of the ward.

  • (d) The motioning party may seek a modification of any part of the existing guardianship or conservatorship order, including but not limited to:

    • (1) the power to manage the ward’s property; or

    • (2) a change from Temporary to Permanent Guardian.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3228. Motion to Revoke Guardianship or Conservatorship.

  • (a) Revocation is the voluntary relinquishment of a guardianship or conservatorship by a guardian or a conservator. The guardianship or conservatorship itself may continue with a successor guardian taking over the role or Family Services may act as temporary guardian until a new permanent one can be found.

  • (b) The Court may set aside any order or decree made by it, but no revocation of an order shall be made until there has been a hearing after due notice to all persons concerned.

  • (c) The Court may hold a hearing to revoke a guardianship or conservator order at any time upon the motion of the guardian or conservator.

  • (d) The motioning party bears the burden of proving by a preponderance of the evidence that revocation of the guardianship or conservatorship is in.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3229. Motion to Remove Guardian or Conservator.

  • (a) Removal is the process to remove a guardian or conservator from his role due to his failure to adequately perform the guardian’s or conservator’s duties. This may include a failure to properly account for the ward’s finances. The guardianship itself may continue with a successor guardian taking over the role.

  • (b) The Court may order a removal of a guardian or conservator for cause, but no removal shall be made until there has been a hearing after due notice to all persons concerned.

  • (c) The Court may hold a hearing to remove a guardian or conservator at any time upon the motion of any of the following:

    • (1) the ward;

    • (2) the ward’s relatives having a legitimate interest in the particular case;

    • (3) the guardian ad litem; or

    • (4) the Mille Lacs Band Family Services Department.

  • (d) The motioning party bears the burden of proving by clear and convincing evidence that the guardian or conservator is or has been neglecting the ward and is or has been refusing or is unable to perform the guardian’s or conservator’s duties. The motion must include factual allegations of neglect or failure to fulfill the guardian’s duties.

  • (e) Nothing in this section precludes the Band Family Services Department from opening their own investigations and/or petition against the guardian.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3230. Motion to Terminate Guardianship or Conservatorship.

  • (a) Termination is the process whereby the entire guardianship or conservatorship is terminated. A motion to terminate may be made if the ward has regained the ability to care for himself and/or his finances, or new evidence is presented that the need for a guardianship or conservatorship has changed.

  • (b) The Court, upon motion of a party seeking termination of a guardianship or conservatorship order and being satisfied all parties were properly notified of the motion, may schedule a hearing to consider termination of its order. The Court may hold a hearing to terminate a guardianship or conservatorship order at any time upon motion of any of the following:

    • (1) the ward;

    • (2) the ward’s family members with a legitimate interest in the case;

    • (3) the guardian ad litem; or

    • (4) the Mille Lacs Band Family Services Department.

  • (c) The motioning party bears the burden of proving by clear and convincing evidence through at least two (2) different physician evaluations that that termination of the guardianship is in the best interest of the ward.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.