To the extent not inconsistent with any order of the Tribal
Court, a guardian of the adult has the following powers and duties:
A.
The guardian of the adult is entitled to custody of the adult ward
and shall make provisions for his/her care, comfort and maintenance,
and shall, as appropriate to the ward's needs, arrange for the
ward's training, education, employment, rehabilitation or custodial
care. The guardian shall take reasonable care of the ward's assets,
clothing, furniture, vehicles and other personal effects.
B.
In arranging for a place of residence, the guardian of the adult
shall give preference to residences on-Reservation over residences
off-Reservation, if both residences are substantially equivalent.
The guardian shall also give preference to residences that are not
treatment facilities. If the only available and appropriate residences
are treatment facilities, the guardian shall give preference to tribally
operated treatment facilities over those operated by nontribal entities.
C.
The guardian of the adult shall have authority to consent to any
medical, legal, psychological or other professional care, counsel,
treatment or service for the ward. The guardian may give any other
consent or approval on the ward's behalf that may be required
or in the ward's best interest. The guardian may petition the
Tribal Court for its concurrence in the consent or approval.
D.
In all cases involving relinquishing tribal membership of an adult
ward, the Tribal Council shall require the guardian making the request
for relinquishment to obtain an order from the Tribal Court determining
that relinquishment is in the best interest of the adult ward.
A minor's (child's) guardian has the powers and responsibilities
of a parent who is not deprived of custody of the minor, except that
a guardian is not legally obligated to provide for the ward from the
guardian's own money and is not liable to third persons by reason
of the parental relationship for the ward's acts. A guardian
has all of the following powers and duties:
A.
The guardian shall take reasonable care of a ward's personal
effects and commence protective proceedings if necessary to protect
the ward's legal interests. If a guardian commences a protective
proceeding because the guardian believes that it is in the ward's
best interest to sell or otherwise dispose of the ward's real
property or interest in real property, the Tribal Court may appoint
a guardian as special conservator. A guardian shall not otherwise
sell the ward's real property or interest in real property without
order of the Tribal Court.
B.
The guardian may receive money payable for the ward's support
under the terms of a statutory benefit or insurance system, private
contract, devise, trust (does not include the minor's trust as
described more fully in the NHBP Gaming Revenue Allocation Plan),
or conservatorship. Money or property received under that method shall
be applied to the ward's current needs for support, care, and
education. The guardian shall exercise due care to conserve any excess
for the ward's future needs unless a conservator is appointed
for the ward's estate, in which case the excess shall be paid
at least annually to the conservator. The guardian shall not use that
money or property for compensation for the guardian's services
except as approved by court order or as determined by a duly appointed
conservator other than the guardian. A guardian may institute a proceeding
to compel a person's performance of a duty to support the ward
or to pay money for the ward's welfare.
C.
The guardian shall facilitate the ward's education and social
or other activities, and shall authorize medical or other professional
care, treatment, or advice. A guardian is not liable for injury to
the ward resulting from the negligence or acts of third persons unless
it would be illegal for a parent to have consented.
D.
In arranging for a place of residence, the guardian of the child
shall give preference to residences on-Reservation over residences
off-Reservation, if both residences are substantially equivalent.
The guardian shall also give preference to residences that are not
treatment facilities. If the only available and appropriate residences
are treatment facilities, the guardian shall give preference to tribally
operated treatment facilities over those operated by nontribal entities.
E.
A guardian must report the condition of the ward and of the ward's
estate that is subject to the guardian's possession or control
as ordered by the Tribal Court on petition of a person interested
in the minor's welfare or as required by court rule. The report
must detail the condition of the ward, medical or mental health treatment
or care to which the ward was subjected, and what reason, if any,
exists for the continuation of guardianship.
F.
In all cases involving relinquishing tribal membership of a minor
child, the Tribal Council shall require the guardian making the request
to obtain an order from Tribal Court determining that relinquishment
is in the best interest of the minor child involved. No relinquishment
shall be granted for any child who is the subject of a child custody
proceeding as defined in the Indian Child Welfare Act, 25 U.S.C. 1903.
The conservator of the estate has the power to perform in a
reasonable and prudent manner every act that a reasonable and prudent
person would perform incident to the collection, preservation, management,
and use of the ward's estate to accomplish the desired result
of administering the ward's property legally and in the ward's
best interest, including but not limited to the following specific
powers:
A.
Take possession, in the ward's name, of all the ward's
property (estate);
B.
Receive assets due the ward from any source;
C.
Maintain any appropriate action or proceeding to obtain support to
which the ward is legally entitled, to recover possession of any of
the ward's property, to determine the title thereto, or to recover
damages for any injury done to any of the ward's property, and
to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise
deal with and settle any claims in favor of or against the ward;
D.
Abandon or relinquish all rights in any property when, in the conservator's
opinion, acting reasonably and in good faith, it is valueless, or
is so encumbered or is otherwise in such condition that it is of no
benefit or value to the ward or his/her estate;
E.
Insure the ward's assets against damage or loss, at the expense
of the ward's estate;
F.
Expend estate income on the ward's behalf and to petition the
Court for prior approval of expenditures from estate principal; provided
that neither the existence of the estate nor conservator's authority
to make expenditures shall terminate or suspend the legal duty that
a parent or other person may have to support and provide for the ward;
G.
Pay from the ward's estate necessary expenditures of administering
the estate;
H.
Employ persons, such as attorneys, auditors, investment advisors,
appraisers, or agents to advise or assist the conservator in the performance
of his/her duties as conservator of the estate;
I.
Continue any business operation in which the ward was engaged, where
such continuation is reasonably necessary to preserve the value, including
good will, of the ward's interest in such business;
J.
Acquire, retain and sell every kind of property and every kind of
investment, including but not limited to bonds, debentures, and other
corporate or governmental obligations; stocks, preferred or common;
real estate mortgages; shares in building and loan associations or
savings and loan associations; annual premium or single premium life,
endowment, or annuity contracts; and securities of any management
type investment company or investment trust registered under the Federal
Investment Company Act of 1940 (15 U.S.C., Chapter 2D et seq.), as
it may be from time to time amended;
K.
Without a tribal court order, lease any of the ward's real estate for a term of not more than three (3) years, or to sell, lease or exchange any of the ward's personal property, including securities; provided that the aggregate value of all items of the ward's tangible personal property sold without court order over the duration of the estate shall not exceed $3,000, and that any other sale in excess of such amount shall be conducted only with authorization from the Tribal Court as provided in Subsection L;
L.
A conservator who is required under Subsection K shall, and any other guardian who so desires may, by motion to the Tribal Court, request issuance of an order to lease any of the ward's real estate or to sell any item or items of the ward's personal property. Notice of the motion and the time, date and place of hearing thereon shall be served upon all parties of record and upon such other persons as the Tribal Court may direct, and the Tribal Court may issue an order after hearing and upon such conditions as the Tribal Court may require;
M.
Foreclose, as an incident to the collection of any bond, note or
other obligation, any mortgage, deed of trust, or other lien securing
such bond, note or other obligation, and to bid in the property at
such foreclosure sale, or to acquire the property by deed from the
mortgagor or obligor without foreclosure; and to retain the property
so bind in or taken over without foreclosure;
N.
Borrow money for such periods of time and upon such terms and conditions
as to rates, maturities, renewals and security as the guardian shall
deem advisable, including the power of a corporate guardian to borrow
from its own banking department, for the purpose of paying debts,
taxes and other claims against the ward, and to mortgage, pledge or
otherwise encumber such portion of the ward's estate as may be
required to secure such loan(s); and
O.
Execute and deliver all instruments that will accomplish or facilitate
the exercise of the powers vested in the conservator of the estate.
A guardian of the adult or child, if he/she has acted within
the limits imposed by this chapter or the Order of Appointment, or
both, shall not be liable for damages to the ward or the ward's
estate, merely due to the following actions of the guardian:
A.
Authorizing or giving consent or approval necessary to enable the
ward to receive legal, psychological or other professional care, counsel,
treatment, or service, in a situation in which damages result from
the negligence of other acts of a third person; or
B.
Authorizing medical treatment or surgery for the ward, if the guardian
acted in good faith and was not negligent in providing the authorization.
