Conservators and guardians

WARM SPRINGS TRIBAL CODE

CHAPTER 362

CONSERVATORS AND GUARDIANS

Table of Contents

362.001 Legislative History and Explanatory Notes
362.010 Definitions
362.100 Jurisdiction
362.110 Inapplicable to Juvenile Dependency Cases
362.200 Commencement of Proceedings
362.210 Persons Entitled to File Petitions
362.220 Contents of Petition
362.230 Notice of Proceedings
362.300 Preference in Appointing Conservator and/or Guardian
362.310 Hearings; Notice
362.320 Emergency Orders
362.325 Appointment of Spokesperson for Proposed Ward
362.330 Home Evaluations, Physical and Mental Examinations
362.340 Findings; Appointment
362.350 Effect of Accepting Appointment as Conservator and/or Guardian
362.360 Termination or Removal of Conservatorship and/or Guardianship
362.365 Resignation of Conservator or Guardian
362.370 General Powers of Guardians
362.380 General Powers of Conservators
362.385 Powers of Conservator Pursuant to Tribal Court Order
362.390 Reports to the Tribal Court
362.400 Bonds
362.900 Penalties

WARM SPRINGS TRIBAL CODE

CHAPTER 362

CONSERVATORS AND GUARDIANS

362.001 Legislative History and Explanatory Notes. 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 Reservation.

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 to protect the assets is appropriate. A guardian is appointed to care for the minor or incapacitated person’s person, rather than for 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. 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.

It is the intent and desire of Tribal Council that, unless prohibited by federal statute or regulation, personnel employed by the Bureau of Indian Affairs conduct their dealings to the affairs of wards for whom guardians or conservators have been appointed in accordance with the provisions of this Chapter.

This chapter is intended to implement provisions of the Tribal Constitution empowering the Tribal Council to “protect the health, security, and general welfare of the members of the Confederated Tribes,” and “to provide for the appointment of guardians for minors and mental incompetents by ordinance or resolution subject to review by the Secretary of the Interior.”

362.10 Definitions.

1. “Conservator” means a person appointed as caretaker and protector to look after the property of a minor or incapacitated person.
2. “Guardian” means a person appointed as custodian of a minor or incapacitated person.
3. “Incapacitated person” means a person, other than a minor, who is unable, without assistance, to properly manage or take care of himself or herself or his or her personal affairs.
4. “Minor” means an unmarried person who is younger than 18 years of age.
5. “Ward” means a person for whom a guardian or conservator has been appointed.
6. “Indian” means, unless otherwise specified, a member of The Confederated Tribes of the Warm Springs Reservation of Oregon, or any other person of Indian blood who is a member of a federally recognized Indian tribe, or any other person on the Reservation who is recognized by the community as an Indian, including a Canadian Indian or an Alaska native.

362.100 Jurisdiction.1 The Warm Springs Tribal Court shall have jurisdiction to appoint and administer the appointment of conservators and/or guardians for members of the Confederated Tribes of the Warm Springs Reservation of Oregon, children of enrolled members, and Indians married to tribal members.

362.110 Inapplicable to Juvenile Dependency Cases.2 This chapter does not apply to the appointment of guardians or conservators in cases initiated under Chapter 360 of the Warm Springs Tribal Code involving neglected juveniles. Appointment of guardians and/or conservators in such cases shall be conducted in accordance with the standards and procedures set forth in Chapter 360.

362.200 Commencement of Proceedings.3 Proceedings for the appointment of a conservator and/or guardian shall be commenced in Warm Springs Tribal Court by the filing of a petition in the form prescribed by the Tribal Court.

362.210 Persons Entitled to File Petitions.4 The following persons are entitled to file a petition for the appointment of a conservator and/or guardian:

1. A family member of the ward,
2. An employee of the Tribe acting within the scope of his or her employment, or
3. The Superintendent of the Bureau of Indian Affairs or the Superintendent’s designee.

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

1. The name and address of the petitioner.
2. The name, age, and address of the proposed ward.
3. The reason the appointment of a conservator and/or guardian is necessary.
4. 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.

362.230 Notice of Proceedings.5 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:

1. The children, parents, siblings, spouse, and legal guardian of the proposed ward.
2. If the petition is for the appointment of a conservator, to the creditors of the ward.
3. The Superintendent of the Bureau of Indian Affairs.
4. The potential guardian and/or conservator.

Notice shall be given either personally or by written notice sent by first class mail.

362.300 Preference in Appointing Conservator and/or Guardian.6 The parents or parent of a minor or of an incapacitated person, 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 Court shall appoint 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:

1. 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.
2. 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.
3. Any request for the appointment as a conservator and/or guardian for a minor 14 years of age or older made by the minor.
4. The relationship by blood or marriage of the proposed conservator and/or guardian to the proposed ward.

362.310 Hearings; Notice.7 The Tribal Court shall schedule and conduct a hearing to consider the appointment of a conservator and/or guardian pursuant to petition filed with the Tribal Court. At the hearing, interested persons shall be entitled to present testimony. Notice of the hearing shall be to the same persons entitled to receive notice pursuant to WSTC 362.230 and in the same manner.

362.320 Emergency Orders.8 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 WSTC 362.310. The emergency order shall be effective for no longer than 60 days.

362.325 Appointment of Spokesperson for Proposed Ward.9 Upon request or upon its own motion, the Tribal Court may appoint a spokesperson to represent the proposed ward in proceedings governed by this Chapter.

362.330 Home Evaluations, Physical and Mental Examinations.10 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.

362.340 Findings; Appointment.11

1. The Tribal Court may appoint a conservator and/or guardian as requested if the Court is satisfied that: (a) The proposed ward is either a minor or an incapacitated person; (b) 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 (c) The proposed conservator and/or guardian is qualified, suitable, and willing to serve.
2. Based on the information provided to the Tribal Court, the Court shall make a guardianship appointment that is no more restrictive upon the liberty of the ward than is reasonably necessary to protect the ward.

362.350 Effect of Accepting Appointment as Conservator and/or Guardian. By accepting appointment, a conservator and/or guardian, whether a resident or nonresident of the reservation, submits personally to the jurisdiction of the Tribal Court in any proceeding relating to the conservatorship/guardianship.

362.360 Termination or Removal of Conservatorship and/or Guardianship.12 A conservatorship and/or guardianship may be terminated by the Tribal Court upon notice to interested persons and a hearing before the Court on the removal or termination. The Tribal Court may, in conjunction with issuing an order terminating the conservatorship and/or guardianship, 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.

362.365 Resignation of Conservator or Guardian.13 Persons desiring to resign as a conservator or guardian shall submit their resignations 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.

362.370 General Powers of Guardians.14 In the general performance of powers and duties respecting the ward, a guardian of a minor or incapacitated person:

1. May to the extent that it is consistent with the terms of the Tribal Court order relating to detention or commitment of the ward, have custody of the person of the ward and establish the ward’s place of abode within or without the Reservation.
2. 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.
3. May consent to or approve any necessary medical or other professional care, counsel, treatment, or service for the ward.
4. 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.

362.380 General Powers of Conservators. A conservator, acting reasonably in efforts to accomplish the purposes for which he or she was appointed, may act without Tribal Court authorization or confirmation, to:

1. Collect, hold, and retain assets of the estate including land wherever situated, until, in his or her judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally interested;
2. Receive additions to the estate;
3. Continue or participate in the operation of any business or other enterprise;
4. Deposit estate funds in a bank including a bank operated by the conservator;
5. Insure the assets of the estate against damage or loss and the conservator against liability with respect to third persons;
6. Pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration, and protection of the estate;
7. Pay any sum distributable to a ward or dependent of the ward by paying the sum to the distributee or by paying the sum for the use of the distributee 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 be established by the court; and
8. Execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

362.385 Powers of Conservator Pursuant to Tribal Court Order. Upon authorization by the Tribal Court a conservator may exercise the following powers:

1. Acquire an undivided interest in any estate asset in which the conservator, in any fiduciary capacity holds an undivided interest;
2. Invest and reinvest estate assets and funds as would a trustee;
3. Acquire or dispose of an estate asset, including non-trust land wherever situated, for cash or on credit, at public or private sale; and 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;
4. Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings;
5. Vote a security, in person or by general or limited proxy;
6. Employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or to assist him in the performance of his administrative duties; act upon their recommendation without independent investigation; and, instead of acting personally, employ one or more agents to perform any act or administration, whether or not discretionary;
7. 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;
8. Prosecute claims of the protected person including those for his personal injury;

362.390 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 on not less than an annual basis.

362.400 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.

362.900 Penalties.15 Any conservator or guardian who steals, diverts, or grossly abuses the funds or property of a ward shall additionally be subject to civil sanctions including a penalty not to exceed $5,000 and an order of restitution by the court.

1 WSTC 362.100 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
2 WSTC 362.110 was added to Chapter 362 by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
3 WSTC 362.200 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
4 WSTC 362.210 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
5 WSTC 362.230 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
6 WSTC 362.300 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
7 WSTC 362.310 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
8 WSTC 362.320 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
9 WSTC 362.325 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
10 WSTC 362.330 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
11 WSTC 362.340 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010. WSTC 362.345 and WSTC 362.347 were deleted by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
13 WSTC 362.365 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
14 WSTC 362.370 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.
15 WSTC 362.900 was amended by Tribal Council Resolution No. 11,270, adopted June 29, 2010.