Legal Guardianship Defined
"Legal Guardianship" is not a well-known legal term outside of the field of family law, and it is a legal arrangement that is often misunderstood. Its meaning, however, has important implications for families, schools, and the State of Indiana. This section will clarify the meaning and scope of legal guardianship, as well as its advantages and disadvantages both for the state and the involved individuals.
Legal guardianship is, essentially, when someone becomes responsible for the care of another individual. These individuals are called "wards." In Indiana, there are terms for different types of guardianship, including general, limited, testamentary, and emergency. Each of these types of guardianship relates to the limitations relative to the control of the ward. The guardian’s responsibilities continue until the court order terminating the guardianship is entered, upon the death of the guardian, or until his or her powers are transferred to another guardian by the court.
The duties and powers of general guardianship are set out in the Indiana Code 29-3-2-3, which states that a general guardian may, among other things, apply for government benefits, enter contracts, sue and be sued, real and personal estate (with approval from the court), sell real and personal estate (with approval of the court), consent to medical care, make decisions regarding the ward’s education, and give permission for the ward to marry and receive social security benefits. A limited guardian has all the power of a general guardian except for those actions enumerated in Indiana Code 29-3-8-5. Testamentary guardians have the authority to manage the affairs of a child whose parents have died. Emergency guardianship is limited to after-hours emergencies and, under these circumstances, requires a judge’s approval to execute any powers.
In addition to general, limited, testamentary, and emergency guardianship, there is also general guardianship for incapacitated persons with substance abuse problems. There are a number of other laws both within and outside of the family code in Indiana that relate to guardianship and powers of attorney .
The scope of a guardian’s authority is important to know when considering obtaining a legal guardianship. For example, suppose your adult son has been having difficulties due to his addiction to drugs. Because of his inability to care for himself, you would like say that he is under a guardianship with you so that you can make decisions for him regarding his housing, medical treatment and financial matters. However, you will need to consider the limitations of a guardianship for a loved one who is an adult. A guardian for an adult may not simply take control of all of that person’s affairs at the beginning of the guardianship. There are various powers a guardian may obtain through a guardianship, but some powers can be difficult to obtain and restrict the ability of the ward to make choices for themselves.
Similarly, when considering whether a legal guardianship is appropriate for your minor child, there are several factors to consider that may make guardianship undesirable. Guardians can be relieved of their duties, but only after giving the potential successor guardian at least five (5) days notice of the intention to apply to be relieved. If the application to be relieved is granted, the ward is not automatically put in the custody of the successor guardian. Instead, at least fourteen (14) days’ notice must be given to the ward, guardian, conservator, custodian, guardian ad litem, or temp guardian of the time and place of the hearing. The court will then appoint someone to decide whether or not to transfer the powers of the former guardian to the successor. Thus, if you appoint someone to be your minor child’s guardian, you may not ever be able to get the original guardian replaced. Instead, you may have to file a petition with the court and hope that the court agrees with your request.
On the other hand, there are benefits to legal guardianships. If the court terminates parental rights of a child or the parental rights of both of the child’s parents are terminated, some parents may wish to have the child placed with a legal guardian to replace the parents, but who is not a state-approved foster parent or a state-approved adoptive family. Guardianship is certainly preferable to being placed in foster care.
Types of Guardianship in Indiana
Indiana recognizes two distinct types of guardianship: guardianship of a minor and guardianship of an adult.
Guardianship of a minor
The court can establish a guardianship of a minor when it determines that the minor needs a guardian. The court’s decision is most often based on the child’s need for supervision, education, nurture and financial assistance. The court usually appoints a guardian for a minor after receiving a petition from someone who is already caring for the minor. The court has broad discretion when making this decision. However, the court does not have the authority to appoint a guardian who is not a resident of Indiana, unless a resident of Indiana has been appointed as co-guardian.
Guardianship of an adult
A court can also establish a guardianship of an adult when it determines that the adult person is incapacitated. An individual is considered incapacitated when the court finds him or her to be unable to make or communicate important treatment decisions regarding a physical or medical condition. Such a finding is required to establish a guardianship over the adult’s person. The court can also establish a guardianship of money for an adult or minor when it determines that the adult’s money or property will be wasted or harmed if not protected by a guardian. Such a finding is required to establish a guardianship over money.
How to Get Guardianship
To obtain legal guardianship in Indiana, an individual must file a petition with the local Probate Court. Court forms for petitions and related filings can typically be found on the court’s website or at the courthouse. The petitioner must be at least 18 years old and may be any competent person or agency that could be appropriate to care for the proposed guardian’s ward.
The petition to obtain guardianship will require information about both the proposed guardian (the adult) and the proposed ward (the child or adult). The petitioner will need to provide information including:
In order to obtain the appointment of a guardian in Indiana, one or more witnesses must also provide a signed affidavit as to the need for guardianship. The witness may be anyone familiar with the proposed ward’s needs who is not interested in the guardianship. In addition, the witnesses may be required to testify at the guardianship hearing.
The Petition must also be filed with the court within a specified time period before the proposed ward’s birthday in the year in which guardianship is desired. If the proposed ward is incapacitated, the petition may be filed at any time.
Once the court receives the petition, it must be served and a hearing will be scheduled. The local Probate Court will appoint a visitor to meet with the proposed guardian and the proposed ward to assess the need for guardianship. A report and recommendation by the visitor will be presented to the court at the hearing.
The guardianship hearing is a formal court proceeding. Therefore, it is important to consider consulting with an experienced Indiana guardianship attorney.
Rights and Duties of a Guardian
The rights of a guardian are significant – such as the ability to make decisions relating to the ward’s care and to control the ward’s assets. However, with great rights come great responsibilities. In Indiana, the appointment of a legal guardian for an adult imposes a responsibility on the guardian to care for the person and/or the property of the ward.
Care of Person. A guardian is expected to exercise reasonable care and skill in the exercise of his or her duties. In exercising those duties, a guardian has the rights and powers of a natural guardian, parent of a minor (except those powers denied to parents of minors under Indiana Code), and guardian of the property. In general, this means that the guardian of the estate would be responsible to make sure the bills are paid and that the assets are protected; however, in addition, guardians can be responsible for the day-to-day care of their loved one.
A guardian who intentionally or negligently fails to exercise a duty or power concerning the care of a ward, which knowledge he or she has or should have under the circumstances, and the failure, resulting in substantial impairment of the physical, mental, or emotional health or comfort of the ward is subject to liability, in addition to other remedies available to the ward or others interested in the welfare of the ward, for the injury to the person or the consequential damages suffered by the ward as a result of the failure. IC 29-3-4-1.
Decision-Making. Under Indiana law, a guardian is responsible for the basic decisions relating to the care of a loved one. This includes the right to seek medical care and the right to control the ward’s residence. However, there are limits to the guardian’s decision-making authority.
A guardian is not allowed to consent to the performance or inducement of a marriage or to the divorce of the guardian’s ward. A guardian also cannot place the ward in an institution or state institution unless an attending physician certifies that the institution or state institution is the least restrictive alternative available in which proper care, treatment, and discipline of the ward can be provided.
To the extent that they are clearly applicable, the following limits apply to a guardian of an incapacitated person: The limits on the powers of a guardian of the person do not limit the right of a guardian to seek a protective order for the incapacitated person.
A guardian, in the performance of the duties and the exercise of powers conferred on the guardian concerning the care of the ward, may not be personally liable for costs, expenses, or damages of the ward.
How to End Guardianship
As circumstances in a protected person’s life change, the need for a guardianship can disappear. A guardianship may become unnecessary when the protected person reaches adulthood, for example. (In Indiana, children under 14 years of age cannot hold a driver’s license, and a majority of states prohibit issuance of a driver’s license to minors.) In other cases, the protected person’s circumstances may improve during the guardianship. For example, an incapacitated individual may be successfully rehabilitated or may recover lost capacities. An unscrupulous guardian may also wish to terminate a guardianship to take advantage of the protected person, however, or the protected person’s assets. Indiana law provides a process for the termination of a guardianship, as follows.
Termination by Petition and Hearing The Indiana Code allows for the termination of a guardianship by a petition and hearing. In general, "[a]t any time after the appointment of a guardian, the court may terminate the guardianship…." The general process calls for a hearing before the court. The person whose guardianship the petition seeks to terminate must be given notice of the hearing. Notice of the hearing must also be given to the protected person’s guardian, if there is one, and to any other interested parties that the court directs. Interested parties include the protected person’s spouse, parents, and children. The court may allow the protected person to appear at hearing or appoint an attorney for the protected person if doing so would be in the best interests of the protected person. The petitioner must file a petition to terminate the guardianship with the court , which includes:
(1) the name of the protected person; (2) the name of the guardian; (3) the date of the appointment of the guardian; (4) the alleged incapacity of the protected person; and (5) the date or dates on which the incapacity was believed to have occurred.
The petitioner’s petition must also include supporting documentation to prove the petitioner’s claims. The court must receive evidence at the hearing that the incapacity of the protected person has ceased and that the protected person is not incapacitated. If the court finds that the protected person is not incapacitated, then the court will terminate the guardianship.
At the hearing, the court will first hear and consider evidence about the protected person’s financial needs, affairs and income. The court must be convinced that the expenses and maintenance of the protected person will not be neglected as a result of terminating the guardianship.
Termination by Protected Person’s Death or Voluntary Termination Indiana law also provides for the termination of a guardianship upon the death of the protected person and the voluntary termination of the guardianship by the protected person. If the ward dies, the guardian must present the death certificate to the court. If the right or authority of the ward to the property held in the guardianship terminates upon the ward’s death and passes to another person, then the guardianship terminates upon receipt by the court of the ward’s death certificate. The guardian must file a final report of the death of the protected person before the court will dismiss the guardianship.
Usual Issues with Guardianship Cases
A legal guardianship is designed to provide protection for an individual who requires assistance when it comes to health care and financial decisions. While the concept of a guardianship is a simple one that can benefit your family by ensuring that the proper person is in control, there are some challenges and complications that can arise during the process, making it crucial to have the guidance and assistance of an experienced Carmel guardianship lawyer.
Some common challenges in guardianship cases in Indiana include: For a guardianship case to proceed smoothly, you need to have all the facts regarding your situation. The legal requirements behind guardianships are clear, and you should not be put in a situation where your loved one’s needs are not being met just because a judge is waiting for more information to make a ruling. For example, you may have had your Medicaid application approved but still be waiting for a check to be delivered. It is best to bring your attorney into the situation early so your case can be heard sooner rather than later. While reportedly rare, it is possible that other family members may try to contest or block a guardianship by filing an objection. There are a couple of ways that this can happen. For starters, the family member may have not be properly served with court documents and therefore not be aware that a guardianship case is being heard. You should ensure that all proper service of notice has been made before you begin proceedings. In other cases, the family member who files an objection may be acting more out of spite than anything else. For example, a family member who is creating problems to complicate your role as guardian may seek to file an objection. The good news for guardianship applicants is that any attempts to contest will require a hearing before a judge. Your lawyer can counsel you on steps you should take to prepare for a guardianship hearing.
Helpful Programs for Indiana Guardians
Pursuant to Indiana Code section 29-3-12 and section 29-3-13, Supportive service programs provide services free of charge to a protected person who lives in the community. Some of the services may include: homemaker, chore services for yard and home maintenance, meal preparation, personal care, friendly visiting/telephone reassurance, caregiver respite, adult day services and shopping and errand running. Your local Area Agency on Aging website has more information about these services.
Indiana Legal Services provides free legal aid for low-income persons and seeks to address the needs of vulnerable groups, such as the elderly, poor families, and people with disabilities . Legal aid can help with divorce issues, child support and custody, housing and foreclosure, Medicare Issues, Utility assistance, Consumer fraud debt, Medicaid issues, foreclosure, bankruptcy, food stamps (SNAP), utility assistance, mortgage assistance, public benefits, and more. Check out their website today to learn more: Indiana Legal Services.
Indiana Protection and Advocacy Services (IPAS) is an independent agency of the state, established pursuant to a federal law called the Protection and Advocacy for Individuals with Developmental Disabilities Act (PADD). This state law gives the agency its authority to provide services. Having supporters with disabilities and who know and understand IPAS is a critical component of assisting with mental health disabilities. IPAS provides a variety of services and programs. For a complete list visit http://www.in.gov/ipop/index.htm.
