CHAPTER 35-3
GUARDIANSHIP

35-3-1 Petition for Appointment of Guardian.

Any person may file with the clerk a verified petition for the appointment of a guardian. The petitioner shall state the following information so far as known to the petitioner.

(A)    The name, age and physical address of the proposed ward and post office box address if there is no physical address where mail is regularly delivered.

(B)    The petitioner’s relationship to the ward.

(C)    That the proposed ward is in either of the following categories and the factual basis in support thereof:

(1)    Is a person whose decision-making capacity is so impaired that the person is unable to care for the person’s personal safety or to attend to or provide for necessities for the person such as food, shelter, clothing, or medical care, without which physical injury or illness might occur.

(2)    Is a minor.

(D)    The name and physical address of the proposed guardian and post office box address if there is no physical address where mail is regularly delivered, and that such person is qualified to serve in that capacity.

(E)    That the proposed ward is a person over which the Tribal Court has jurisdiction, and that the proposed ward’s best interests require the appointment of a guardian.

(F)    The name and address of the person or institution, if any, having the care, custody or control of the proposed ward.

(G)    Any such petition may be accompanied by, or the court may require that such petition be accompanied by, a report of an examination and evaluation which meets the requirements of 35-2-14, and amendments thereto. In such case, the petition may include a request that the court accept this report in lieu of ordering any additional examination and evaluation pursuant to 35-2-14, and amendments thereto.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-2 Notification of Guardianship Powers.

In a proceeding for the appointment of a guardian, the proposed ward shall be given written notice by the court or the person designated by court order, which advises the proposed ward that if a guardian is appointed, the guardian may, without court approval, provide for the care of the ward, manage the ward’s personal property and effect, assist the ward in developing self-reliance and receiving professional care, counseling, treatment or services as needed, and ensure that the ward receives necessary emergency medical services. The notice shall also advise the proposed ward that, upon the court’s approval, the guardian may change the ward’s permanent residence to a more restrictive residence, and arrange for major elective surgery or any other non-emergency major medical procedure. The notice shall clearly advise the proposed ward of the right to counsel and the potential deprivation of the proposed ward’s civil rights. The notice shall also state that the proposed ward may use the ward’s own attorney instead of an attorney appointed by the court. In an involuntary guardianship proceeding, the notice shall be served upon the proposed ward with the notice of the filing of the petition as provided in Section 35-2-8.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-3 Responsibilities of Guardian.

(A)    Based upon the evidence produced at the hearing, and upon the appointment of a guardian, the court may grant a guardian the following powers and duties which may be exercised without further court approval:

(1)    Providing for the care, comfort and maintenance of the ward, including the appropriate training and education to maximize the ward’s potential.

(2)    Taking reasonable care of the ward’s clothing, furniture, vehicle and other personal effects.

(3)    Assisting the ward in developing maximum self-reliance and independence.

(4)    Ensuring the ward receives necessary emergency medical services.

(5)    Ensuring the ward receives professional care, counseling, treatment, or services as needed. If necessitated by the physical or mental disability of the ward, the provision of professional care, counseling, treatment, or services limited to the provision of routine physical and dental examinations and procedures under anesthesia is included, if the anesthesia is provided within the scope of the health care practitioner’s scope of practice.

(B)    A guardian may be granted the following additional powers which may only be exercised upon court approval:

(1)    Changing, at the guardian’s request, the ward’s permanent residence if the proposed new residence is more restrictive of the ward’s liberties than the current residence.

(2)    Arranging for the provision of major elective surgery or any other non- emergency major medical procedure. For the purposes of this paragraph, “major elective surgery” and “non- emergency major medical procedure” do not include the provision to the ward of professional care, counseling, treatment, or services limited to the provision of routine physical and dental examinations and procedures under anesthesia, if the use if anesthesia is necessitated by the physical or mental disability of the ward, and if the anesthesia is provided within the scope of the health care practitioner’s scope of practice.

(3)    Consent to the withholding or withdrawal of life-sustaining procedures.

(C)    For the purposes of this section:

(1)    “Routine dental examinations and procedures” means and includes preventative services, diagnostic services, restorative services, periodontal services, endodontic services, oral surgery, prosthetic services, and orthodontic services.

(2)    “Routine physical examinations and procedures” means and includes examinations and procedures performed for the purpose of general treatment or diagnosis or for the purpose of treatment or diagnosis related to a specific illness, symptom, complaint, or injury.

(D)    The court may take into account all available information concerning the capabilities of the ward and any additional evaluation deemed necessary, including the availability of third-party assistance to meet the needs of the ward or proposed ward.

(E)    The court may direct that the guardian have only a specially limited responsibility for the ward. In that event, the court shall state those areas of responsibility which shall be supervised by the guardian and all other shall be retained by the ward.

(F)    The court may make a finding that the ward lacks the capacity to contract a valid marriage.

(G)    From time to time, upon a proper showing, the court may modify the respective responsibilities of the guardian and the ward, after notice to the ward and an opportunity to be heard. Any modification that would be more restrictive or burdensome for the ward shall be based on clear and convincing evidence that the ward continues to fall within the categories of Section 35-3-1(C)(1) and that the facts justify a modification of the guardianship. Section 35-2-14 applies to the modification proceedings. Any modification that would be less restrictive for the ward shall be based upon proof in accordance with the requirements of Section 35-2-23.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-4 Qualification of Guardian – Resident.

Any natural person over the age of eighteen (18) years who is a family member of the ward, or who resides on the Prairie Band Potawatomi Nation reservation, or who is an enrolled member of the Prairie Band Potawatomi Nation, or who is the Director of Prairie Band Potawatomi Nation Social Services, or any other person as defined in this Chapter who is qualified to serve as a guardian except the following:

(A)    One who is under legal competency or is a chronic alcoholic, substance abuser, or a spendthrift.

(B)    Any other person whom the court determines to be unsuitable.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-5 Qualification of Guardian – Nonresident.

The court may, upon application, appoint the following nonresidents as guardian: A person who does not reside on the Prairie Band Potawatomi Nation reservation and who is not an enrolled member of the Prairie Band Potawatomi Nation and who is otherwise qualified under the provisions of Section 35-3-4, provided there is a resident guardian appointed to serve with such nonresident guardian; and provided further that the court, for good cause shown, may appoint such nonresident guardian to serve alone without the appointment of a resident guardian.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-6 Appointment of Guardian.

(A)    If the allegations of the petition as to the status of the proposed ward and the necessity for the appointment of a guardian are proved by clear and convincing evidence, the court may appoint a guardian. If the court appoints a guardian based upon mental incapacity of the proposed ward, the court shall make a separate determination as to the ward’s competency to vote. The court shall find a ward impaired to vote only upon a determination that the person lacks sufficient mental capacity to comprehend and exercise the right to vote.

(B)    In all proceedings to appoint a guardian, the court shall consider the functional limitations of the proposed ward and whether a limited guardianship as set forth in Section 35-3-3(E) is appropriate.

(C)    Section 35-2-14 applies to the appointment of a guardian.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-7 Appointment of a Temporary Guardian.

A temporary guardian may be appointed, but only after a hearing on such notice, and subject to such conditions, as the court shall prescribe.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-8 Bond.

A guardian shall not be required to give bond unless the court, for good cause, finds that the best interests of the ward require a bond. If the court orders a guardian to post a bond, the provisions of Chapter 35-4 of this Title apply insofar as the provisions relate to a bond and reporting.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-9 Reporting Requirements – Guardian.

(A)    A guardian appointed under this chapter shall file with the court the following written verified reports:

(1)    An initial report within sixty (60) days of the guardian’s appointment.

(2)    An annual report every year within ninety (90) days of the annual anniversary of appointment of the guardian, unless the court otherwise orders that a report should be filed every six (6) months or at some other interval to be determined by and in the discretion of the court.

(3)    A final report within thirty (30) days of the termination of the guardianship under Section 35-2-23 and Section 35-3-11 unless that time is extended by the court.

(B)    Reports required by this section must include:

(1)    The current mental and physical condition of the ward.

(2)    The present living arrangements of the ward, including a description of each residence where the ward has resided during the reporting period.

(3)    A summary of the medical, educational, vocational and other professional services provided for the ward.

(4)    A report of the ward’s income, assets, debts, disbursements, and other relevant financial information for the reporting period.

(5)    A description of the guardian’s visits with and activities on behalf of the ward.

(6)    A recommendation as to the need for continued guardianship.

(7)    Other information requested by the court or useful in the opinion of the guardian.

(C)    Reports of the guardian shall be reviewed by the court and either approved or not approved. If the report is not approved, notice shall be given to the guardian as to the deficiencies in the report and the court shall set a deadline by which the report must be resubmitted.

(D)    Reports required by this section shall be served on any attorney representing the ward in the guardianship proceeding and all other parties appearing in the proceeding.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-10 Property Delivered – Penalty.

Upon the removal of any guardian pursuant to Section 35-3-11 or upon termination of guardianship pursuant to Section 35-2-23, the guardian shall be required by order of the court to deliver to the person who may be entitled thereto all the property in the guardian’s possession or under the guardian’s control belonging to the ward not later than thirty (30) days following the removal or termination and if the guardian fails or refuses to comply with any proper order of the court, the guardian may be sanctioned, fined, and/or committed to jail until the guardian complies.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-11 Removal of Guardian.

When any guardian is, or becomes, disqualified under Section 35-3-4 or Section 35-3- 5, or has failed to perform any duty imposed by law, or by any lawful order of court, then the court may remove the guardian. The court may, upon its own motion, and shall upon the filing of a verified petition by any person interested in the estate, including a surety on the guardian’s bond, if any, order the guardian to appear and show cause why the guardian should not be removed. Any such petition shall specify the grounds of complaint. The removal of a guardian after letters are duly issued to the guardian shall not invalidate the guardian’s official acts performed prior to removal.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-3-12 Appointment of Successor Guardian.

When any guardian fails to qualify, dies, is removed by the court, or resigns, and such resignation is accepted by the court, the court may, and if the guardian were the sole or last surviving guardian, the court shall appoint another guardian in the former’s place.

(Enacted by PBP TC No. 2025-193, June 5, 2025)

35-2-13 Powers of Successor Guardian.

When a successor guardian is appointed, the successor shall have all the rights, powers, titles and duties of the predecessor, except that the successor shall not exercise powers given in any order creating the power that by its express terms are personal to the guardian therein designated.

(Enacted by PBP TC No. 2025-193, June 5, 2025)