Navigating Guardianship in Indiana

Life can present unexpected challenges, and sometimes, a loved one may become unable to make sound decisions for themselves due to age, illness, or disability. In such cases, establishing a legal guardianship can be a crucial step to ensure their well-being and protect their interests.

What is a Guardianship?

A guardianship is a legal arrangement where a court appoints a person (the ​“guardian”) to make decisions on behalf of another individual (the ​“ward”) who is deemed incapacitated. This incapacitation can be due to a physical or mental condition, or in the case of a minor, their age. The guardian assumes a fiduciary duty, meaning they are legally obligated to act solely in the ward’s best interests.

Guardianships are distinct from adoption. While adoption permanently severs parental rights and creates a new parent-child relationship, guardianship does not terminate parental rights and can be a temporary arrangement. It provides legal authority to care for and make decisions for the ward without necessarily creating a new family unit.

Types of Guardianships in Indiana

Indiana law recognizes different types of guardianships to address various needs:

• Guardianship of the Person: This type grants the guardian authority over the ward’s personal care, including decisions about their living situation, medical treatment, education, and general well-being.

• Guardianship of the Estate: This focuses on managing the ward’s financial affairs and assets. The guardian is responsible for handling their money, property, and investments.

• Full Guardianship vs. Limited Guardianship: A full guardianship gives the guardian comprehensive control. However, Indiana courts are required to consider limited guardianships, which restrict the guardian’s authority to specific areas where the ward needs assistance, promoting their independence as much as possible.

• Emergency (or Temporary) Guardianship: In urgent situations where immediate action is needed, a court can grant a temporary guardianship for a short period (typically up to 90 days), which may later be converted to a permanent guardianship.

How to Establish a Guardianship in Indiana: The Process

Establishing a guardianship in Indiana generally involves a structured legal process:

1. Filing a Petition for Guardianship: The first step is to file a formal petition with the appropriate court that has probate jurisdiction. This petition is a sworn statement that outlines the necessity of guardianship, why it’s in the ward’s best interests, and why the proposed guardian is the most qualified candidate. It requires detailed information about the alleged incapacitated person or minor, their assets, the nature of their incapacity, and any relevant family members. For those incapacitated by a mental or physical disability, documentation from medical or mental health professionals is often filed confidentially with the petition.

2. Providing Notice to Interested Parties: After filing the petition, formal notice must be given to the alleged incapacitated person (unless impossible or impractical), all close family members, and anyone who has had care or custody of the person in the preceding 60 days. For minors, this typically includes living parents, even if they don’t have custody. In some cases, if a parent cannot be located, notice may need to be published in a newspaper.

3. The Court Hearing: The court will schedule a hearing on the petition. During this hearing, the judge will listen to arguments and evidence presented by all parties involved. The proposed guardian will need to demonstrate their ability to provide for the ward’s physical, mental, emotional, and educational needs. For minors over 14, their wishes are significantly considered. The court may also require a criminal history check of the petitioner and any other household members.

4. Court Order and Appointment: If the court determines that a guardianship is necessary and in the ward’s best interest, it will issue an order appointing a guardian. This order will specify the scope of the guardianship (full or limited) and outline the guardian’s responsi­bilities and powers. The appointed guardian must then submit an oath affirming their commitment to fulfilling their duties.

5. Ongoing Responsibilities and Reporting: Once appointed, guardians have ongoing duties, including managing the ward’s care and/​or finances, keeping detailed records, and filing regular reports (at least biennially) with the court on the ward’s condition and the administration of their affairs. They must also register with the Indiana Guardianship Registry.

Important Considerations

• Best Interests of the Ward: The paramount consideration throughout the entire guardianship process is always the ​“best interests” of the person for whom guardianship is sought.

• Alternatives to Guardianship: Guardianship is a significant legal step. Courts often prefer less restrictive alternatives if they can adequately address the individual’s needs, such as powers of attorney, healthcare representatives, or supported decision-making agreements. However, these types of documents cannot be signed by someone who lacks capacity.

• Legal Counsel: While it may be possible to file a guardianship petition without an attorney, it is highly recommended to seek legal counsel. Guardianship involves complex legal responsi­bilities and ongoing duties, and an experienced attorney can provide invaluable guidance and ensure all legal requirements are met.

At Ball Eggleston, we understand the complexities and emotional weight involved in guardianship matters. Our dedicated team of attorneys is committed to providing compassionate and knowledgeable support, helping you navigate this intricate legal process and achieve an outcome that prioritizes the well-being and protection of your loved ones. Call Ball today to discuss your specific situation.