CHAPTER 35-2
PROCEDURES AND PROVISIONS APPLICABLE TO GUARDIANSHIPS AND CONSERVATORSHIPS
35-2-1 Pleadings and Trial – Rules of Civil Procedure.
All pleadings, hearings, and the trial of the case shall be governed by the Rules of Civil Procedure of the Prairie Band Potawatomi Band. The cause shall be tried as a civil action at law, and neither party shall be entitled to a jury trial.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-2 Reports and Applications for Orders.
All petitions, reports, and applications for orders in guardianship and conservatorship proceedings must be in writing, verified, acknowledged or certified, and self-explanatory.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-3 Combining Petitions.
The petitions for the appointment of a guardian and a conservator may be combined and the cause tried in the same manner as a petition for the appointment of a conservator.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-4 Same Person as Guardian and Conservator; Co-Guardians and Co-Conservators;
The same person may be appointed to serve as both guardian and conservator. Two persons may both be appointed as co-guardian, co-conservator, or both, if it is deemed to be in the ward’s best interests.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-5 Service.
Service of process of the petition to commence a proceeding for guardianship or conservatorship shall be effected as set forth in the Rules of Civil Procedure and the Law and Order Code of the Prairie Band Potawatomi Nation for civil actions and shall be served on persons designated in this Title.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-6 Waiver of Notice.
Any notice required under this Guardianship and Conservatorship Code or by order of the court may be waived in writing by the person, guardian or conservator entitled to receive such notice.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-7 Proof of Service.
Proof of service of any notice required by this Guardianship and Conservatorship Code or by order of the court, including those by publication, shall be filed with the clerk.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-8 Notice – Commencement of Action.
(A) Proposed ward is an adult.
(1) If the proposed ward is an adult, notice of the filing of the petition shall be served upon the proposed ward in the manner of an original notice and the content of the notice is governed by the rules of civil procedure governing original notice.
(2) Notice shall also be served upon the ward’s spouse. If the ward has no spouse, notice shall be served upon the ward’s adult children, if any.
(B) Proposed ward is a minor. If the proposed ward is a minor, notice of the petition shall be served upon the minor and upon the parent(s) or legal guardian(s) of the minor in the manner of an original notice and the content of the notice is governed by the rules of civil procedure governing original notice.
(C) Notice in the manner of original notice or another form of notice ordered by the court, given to the guardian ad litem, or attorney representing the ward, is notice to the proposed ward.
(D) Proof of service shall be made by affidavit, which affidavit shall list all of the documents that were served.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-9 Notice of Hearing or Trial.
(A) Court prescribes notice of hearing or trial. Unless otherwise provided in this Code, the court shall fix the time and place of hearing of any matter requiring notice and shall prescribe the time and manner of service of the notice of such hearing.
(B) Notice of publication. In the case of proceedings against unknown persons or persons whose address or whereabouts are unknown, the court may, after application by the party seeking to serve by publication, prescribe that notice of hearing or trial may be served by publication within the time and manner provided by the Rules of Civil Procedure of the Prairie Band Potawatomi Nation.
(C) Notice otherwise provided. In its discretion, the court’s notice may direct each interested party to file the party’s objections/responses thereto in writing, if any, within twenty after the day the notice is served upon the party, and that unless the party does so file objections/response in writing that the party will be forever barred from making any objections thereto. Said notice shall be served upon each interested party in compliance with the rules of civil procedure. In the event objections thereto are timely filed, the court shall fix the time and place of the hearing for the judicial determination of the issues raised.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-10 Representation.
(A) In a proceeding for the appointment of a guardian and/or conservator:
(1) The proposed ward is entitled to representation. Upon the filing of the petition, or as soon thereafter as reasonably possible, the court shall appoint a guardian ad litem to represent the proposed ward, and the court shall set a hearing on the petition and date therefor, and provide for notice of the appointment the guardian ad litem.
(2) Nothing in this section shall prevent a proposed ward from obtaining their own counsel to represent them throughout the proceedings in addition to the appointed guardian ad litem.
(3) The court may take action under paragraph (1) prior to the service of the original notice upon the proposed ward.
(B) The court shall ensure that the proposed ward has been provided with notice of the right to be personally present at all proceedings and shall make findings of fact in an order of disposition setting out the manner in which notification was provided.
(C) The cost of court appointed guardian ad litem and privately retained counsel for the ward shall be paid by the ward or the estate of the ward, except if the ward does not have sufficient assets and funds to pay the cost of legal counsel, the court shall pay such reasonable costs for the guardian ad litem. The court shall not pay for a private attorney in addition to a guardian ad litem. If the ward subsequently is able to pay the cost of the ward’s legal counsel and reimburse the court for legal expenses of the ward paid by the court, the ward shall do so.
(D) The guardian ad litem representing a ward shall:
(1) Ensure that the proposed ward has been properly advised of the nature and purpose of the proceeding.
(2) Ensure that the proposed ward has been properly advised of the ward’s rights in a guardianship and/or conservatorship proceeding.
(3) Personally interview the proposed ward and conduct an independent investigation to fully assess the proposed ward’s ability to meet essential needs for physical health, safety or welfare.
(4) File a written report stating whether there is a return on file showing that proper service on the proposed ward has been made and also stating that specific compliance with paragraphs (1) through (3) immediately above has been made or stating the inability to comply by reason of the proposed ward’s condition. The written report shall also state whether the guardian ad litem believes the proposed ward is able to meet their essential needs for physical health, safety or welfare, and the facts they base their determinations upon. The written report shall state whether the guardian ad litem believes it is in the best interests of the ward that a guardian, conservator, or both, should be appointed.
(5) Represent the proposed ward.
(6) Ensure that the guardianship and/or conservatorship procedures conform to the statutory and due process requirements of the Rules of Civil Procedure and the Law and Order Code of the Prairie Band Potawatomi Nation.
(7) Inform the proposed ward of the effects of the order entered for appointment of guardian and/or conservator.
(8) Advise the ward of the ward’s right to petition for modification or termination of the guardianship and/or conservatorship.
(9) Advise the ward of the rights retained by the ward.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-11 Preference for Appointment of Guardian and/or Conservator – Minor and Adult.
(A) Minor. The parents or legal guardian(s) of a minor, if qualified and suitable, shall be preferred over all others for appointment as guardian and/or conservator. Preference shall then be given to any person, if qualified and suitable, nominated as guardian and/or conservator for a minor child by a will executed by the parent having custody of a minor child, any qualified and suitable person requested by a minor fourteen years of age or older, or to any family member. Subject to these preferences, the court shall appoint as guardian and/or conservator a qualified and suitable person who is willing to serve in that capacity and the preferences herein are recommended but not mandatory. All determinations herein shall be based upon the best interests of the proposed ward.
(B) Adult. The spouse of an adult, if qualified and suitable, shall be preferred over all others for appointment as guardian and/or conservator. Preference shall then be given to any adult child and then to any family member, if qualified and suitable, nominated as guardian and/or conservator for an adult. Subject to these preferences, the court shall appoint as guardian and/or conservator a qualified and suitable person who is willing to serve in that capacity. All determinations herein shall be based upon the best interests of the proposed ward.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-12 Affidavit of Guardian and/or Conservator.
Prior to being appointed as a guardian and/or conservator, and prior to issuance of letters of guardianship or conservatorship, the proposed appointee shall complete, sign under oath, and file with the clerk, an affidavit stating whether the proposed appointee has:
(A) Ever been convicted of a felony in any jurisdiction;
(B) Acted as guardian and/or conservator in any jurisdiction for any person within three (3) years of the filing of the petition in this matter;
(C) Reviewed and has a working knowledge of the powers and duties imposed on a guardian and/or conservator, as applicable;
(D) Acted in a fiduciary capacity pursuant to a power-of-attorney for any person in any jurisdiction within three (3) years of the filing of the petition in this matter;
(E) Ever been listed in an Elder Abuse or Sex Offender Registry in any jurisdiction at any time and whether any enterprise in which the proposed appointee has an interest has ever been listed in an Elder Abuse or Sex Offender Registry or in any jurisdiction at any time;
(F) If appointed as a guardian or conservator for any person within three (3) years prior to the filing of the petition in this case, whether the proposed appointee in this case has ever failed to file any Report of Guardian or Conservator in any jurisdiction later than three (3) months after the date the report was due;
(G) Ever been removed as a guardian or conservator for any person in any jurisdiction at any time;
(H) Ever received anything of value exceeding a total of one hundred dollars ($100) in any one (1) year, by gift, devise, or bequest from any individual, or estate of an individual, to whom the proposed appointee is not related by blood or marriage and for whom the proposed appointee served at any time as guardian, conservator, trustee, or attorney-in-fact;
(I) Ever had an interest in an enterprise that received anything of value exceeding a total of one hundred dollars ($100) in any one year, by gift, devise, or bequest from any individual, or estate of an individual, to whom the proposed appointee is not related by blood or marriage and for whom the enterprise and/or proposed appointee served at any time as guardian, conservator, trustee, or attorney-in-fact;
(J) Been named as a personal representative, trustee or other type of beneficiary of any individual to whom the proposed appointee is not related by blood or marriage and for whom the proposed appointee served as guardian, conservator, trustee, or attorney-in-fact;
(K) Ever had an interest in an enterprise where the enterprise was or is named as a personal representative, trustee or other type of beneficiary of any individual to whom the proposed appointee is not related by blood or marriage and for whom the enterprise and/or proposed appointee served as guardian, conservator, trustee, or attorney-in-fact.
(L) Any interest in any enterprise providing housing, health care, or comfort care services to any individual;
(M) The proposed appointee shall state the nature of his/her relationship with the proposed ward.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-13 Guardianships and Conservatorships – Burden of Persuasion; General Provisions.
(A) The determination of incompetency of the proposed ward or ward and the determination of the need for the appointment of a guardian or conservator or of the modification or termination of a guardianship or conservatorship shall be supported by clear and convincing evidence.
(B) The burden of persuasion is on the petitioner in an initial proceeding to appoint a guardian or conservator. In a proceeding to modify or terminate a guardianship or conservatorship, if the guardian or conservator is the petitioner, the burden of persuasion remains with the guardian or conservator. In a proceeding to terminate a guardianship or conservatorship, if the ward is the petitioner, the ward shall make a prima facie showing of some decision-making capacity. Once a prima facie showing is made, the burden of persuasion is on the guardian or conservator to show by clear and convincing evidence that the ward is impaired.
(C) In determining whether a guardianship or conservatorship is to be established, modified, or terminated, the court shall consider whether a limited guardianship pursuant to Section 35-3-3(E) and Section 35-3-6(B), of this Title is appropriate. In making the determination, the court shall make findings of fact to support the powers conferred on the guardian or conservator.
(D) In proceedings to establish, modify, or terminate a guardianship or conservatorship, in determining if the proposed ward or ward is impaired as defined in Section 35-1-3 of this Title, the court shall consider credible evidence from any source to the effect of third-party assistance in meeting the needs of the proposed ward or ward if such evidence is offered.
(E) Except as otherwise provided in Section 35-2-10(A)(1) and (2), and Section 35- 2-10(C), in proceedings to establish a guardianship or conservatorship, the costs, including attorney fees and expert witness fees, shall be assessed against the ward or the ward’s estate or as may be otherwise ordered by the court. If the proceeding is dismissed either voluntarily or involuntarily, the fees and costs may be assessed against the petitioner for good cause shown.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-14 Order for Examination for Evaluation; Reports.
(A) Upon the filing of a petition as provided for in 35-3-1, and amendments thereto, alleging that the proposed ward is a person over which the Tribal Court has jurisdiction, and is a person with an impairment in need of a guardian or conservator, or both, the court shall order the proposed ward to submit to an examination and evaluation to be conducted through a general hospital, psychiatric hospital, community mental health center, community developmental disability organization, or by a private physician, psychiatrist, psychologist or other professional appointed by the court who is qualified to evaluate the proposed ward’s alleged impairment. The order shall be served in the manner provided for in 35-2-5, and amendments thereto, and may be served at the same time or after the notice provided for therein.
(B) Unless otherwise specified by the court, the report of the examination and evaluation submitted to the court shall contain:
(1) The proposed ward’s name, age and date of birth;
(2) A description of the proposed ward’s physical and mental condition;
(3) A description of the nature and extent of the proposed ward’s cognitive and functional abilities and limitations, including adaptive behaviors and social skills, and, as appropriate, educational and developmental potential;
(4) A prognosis for any improvement and, as appropriate, any recommendation for treatment or rehabilitation;
(5) A list and description of any prior assessments, evaluations or examinations of the proposed ward, including the dates thereof, which were relied upon in the preparation of this evaluation;
(6) The date and location where this examination and evaluation occurred, and the name or names of the professional or professionals performing the examination and evaluation and such professional’s qualifications;
(7) A statement by the professional that the professional has personally completed an independent examination and evaluation of the proposed ward, or by a professional on behalf of the professionals who have together completed an independent examination and evaluation of the proposed ward that they have done so, and that the report submitted to the court contains the results of that examination and evaluation, and the professional’s or professionals’ opinion with regard to the issues of whether or not the proposed ward is an adult or a minor with an impairment who may be in need of a guardian or conservator, or both, and, if ascertainable, whether it would be injurious to the proposed ward to be required to be present at the trial on the petition, or whether the proposed ward could meaningfully participate in those proceedings; and
(8) The signature of the professional who prepared the report.
(C) The professional shall file with the court, at least five days prior to the date of the trial, such professional’s written report concerning the examination and evaluation ordered by the court. The report shall be made available by the court to counsel for all parties.
(d) In lieu of entering an order for an examination and evaluation as provided for herein, the court may determine that a report accompanying the petition as provided for in subsection (G) of 35-3-1, and amendments thereto, or subsection (G) of 35-4-1, and amendments thereto, is in compliance with the requirements of this section and that no further examination or evaluation should be required, unless the proposed ward, or such person’s attorney, requests such an examination and evaluation in writing. Any such request shall be filed with the court, and a copy thereof delivered to the petitioner, at least four days prior to the date of the trial. Accompanying the request shall be a statement of the reasons why an examination and evaluation is requested and the name and address of a qualified professional or facility willing and able to conduct this examination and evaluation. If the court orders a further examination and evaluation, the court may continue the trial and fix a new date, time and place of the trial at a time not to exceed 30 days from the date of the filing of the request.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-15 Letters of Guardian or Conservator Issued.
Upon the guardian or conservator filing an affidavit of guardian or conservator pursuant to Section 35-2-12, and filing proof of bond if any bond is required, the clerk shall issue letters under the seal of the court giving the guardian or conservator the powers authorized by law with said powers to be enumerated in the letters.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-16 Oath – Acceptance of Appointment.
Every guardian and conservator, before entering upon the duties herein, shall subscribe an oath or certify under penalty of perjury that the guardian or conservator will faithfully discharge the duties imposed by law according to the best of the guardian’s or conservator’s ability.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-17 Effect of Appointment – Ward.
The appointment of a guardian or conservator shall not constitute an adjudication that the ward is of unsound mind.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-18 Legal Effect of Appointment – Guardian or Conservator.
By qualifying as guardian and/or conservator, any person, whether a Tribal member or non-Tribal member, submits to the jurisdiction of the Tribal Court, and, in addition, shall be deemed to agree that:
(A) All property coming into the guardian’s and/or conservator’s control or possession as a result of the guardianship and/or conservatorship appointment is subject to the jurisdiction of the Tribal Court; and
(B) The guardian and/or conservator is subject to all orders entered by the court in the proceedings in which the guardian and/or conservator is serving and that notices served upon the guardian and/or conservator with respect thereto in compliance with the procedure prescribed in this Law and Order Code shall have the same force and effect as if such service had been personally made upon the guardian and/or conservator within the jurisdiction of the Nation; and
(C) The guardian and/or conservator shall be subject to the jurisdiction of the Tribal Court in all actions and proceedings against the guardian and/or conservator arising from or growing out of the guardianship and/or conservatorship relationship and activities and that the service of process in such actions and proceedings may be made upon the guardian and/or conservator by serving original notice upon the guardian and/or conservator outside the Prairie Band Potawatomi Nation reservation and that such service shall have the same force and effect as though the service had been personally made upon the guardian and/or conservator within the Prairie Band Potawatomi Nation reservation.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-19 Compensation of Guardian or Conservator.
The guardian or conservator may be compensated from the estate of the ward at such reasonable amount as may be determined by the court for services rendered and for good cause shown upon application to the court and after hearing and determination and order by the court as to said request for compensation.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-20 Self-Dealing by Guardian or Conservator.
No guardian or conservator shall in any manner engage in self-dealing, except on order of the court after notice to all interested persons, and shall derive no profit other than the amounts to be paid to said conservator or guardian after application therefor by the guardian or conservator and after approval by and order of the court. Every application of a guardian or conservator seeking an order under the provisions of this section shall specify in detail the reasons for such application and the facts justifying the requested order.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-21 Liability of Guardians and Conservators.
Guardians and conservators shall not be held personally liable for actions or omissions taken or made in the official discharge of the guardian’s or conservator’s duties, except for any of the following:
(A) A breach of fiduciary duty imposed by this Guardianship and Conservatorship Code.
(B) Willful or wanton misconduct in the official discharge of the guardian’s or conservator’s duties.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-22 Tort Liability of Guardians and Conservators.
The fact that a person is a guardian or conservator shall not in itself make them personally liable for damages for the acts of the ward.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-23 Cause for Termination.
A guardianship shall cease and a conservatorship shall terminate upon the occurrence of any of the following circumstances:
(A) If the ward is a minor, when the ward reaches the age of majority.
(B) The death of the ward.
(C) A determination by the court that the ward is no longer a person whose decision-making capacity is so impaired as to bring the ward within the categories of Section 35-3-1 and/or Section 35-4-1. In a proceeding to terminate a guardianship or a conservatorship, the ward shall make a prima facie showing that the ward has some decision-making capacity. Once the ward had made that showing, the guardian or conservator has the burden to prove by clear and convincing evidence that the ward’s decision-making capacity is so impaired, as provided in Section 35-3-1(B)(1) and/or Section 35-4-1(B)(1) that the guardianship or conservatorship should not be terminated.
(D) Upon determination by the court that the conservatorship or guardianship is no longer necessary for any other reason.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-24 Petition to Terminate – Request for Voting Rights Reinstatement.
At any time after the appointment of a guardian or conservator, any person may apply to the court by petition, alleging that the person is no longer a proper subject thereof, and asking that the guardianship or conservatorship be terminated. A person under an order appointing a guardian which order found the person impaired to vote may include a request for reinstatement of the person’s voting rights in a petition to terminate the guardianship or by filing a separate petition for modification of this determination.
(Enacted by PBP TC No. 2025-193, June 5, 2025)
35-2-25 Limit on Application to Terminate.
If any petition for terminating such guardianship or conservatorship shall be denied, no other petition shall be filed therefor until at least six months shall have elapsed since the denial of the former one.
(Enacted by PBP TC No. 2025-193, June 5, 2025)