What is a Guardianship in Indiana?
The person seeking guardianship ("guardian") is known as the "petitioner." The guardian may be a friend or relative or any adult who is willing and able to serve. Once appointed by a court, the guardian may be paid for the services it provides in the form of services. The guardian is given the authority to take responsibility for an individual’s medical, financial and/or legal affairs (the ward).
At times, a guardian may be appointed by a court without the consent and over the objection of the person the guardianship petition is filed against. The person creating the guardianship is known as the "Ward." In these situations, the Ward may be incapable of understanding the results of his or her decisions due to incapacity. It is important to know that incapacity is not the same as having a disability.
Indiana Code chapter 29-3 sets forth the expectations and limitations on a guardian of a person. A guardian has "full power and authority on behalf of the ward to the extent allowed by the [Indiana] superior courts." (IC 29-3-4-1).
The Indiana courts are limited in appointing a guardian for a person . A guardian may be appointed for a person if the person is found to be incapacitated on the basis of at least one of these requirements:
- The individual has an intellectual disability and is in need of supervision; or
- The individual has a mental illness or disorder and is in need of supervision; or
- The individual has an advanced age condition or illness, and is in need of supervision; or
- The individual has a specific physical condition or infirmity, and is in need of supervision; or
- The individual has a brain injury and is in need of supervision.
In short, a guardian may not be assigned responsibilities to a person because they are elderly or disabled. The guardian will not be named if the ward does not need supervision.
A guardianship of a person must be appointed by a court. Indiana guardianship law allows for the limited appointment of a guardian of a person. A limited guardian is only able to handle the duties of a guardian on behalf of the Ward for specific periods of time. The limited guardian does not have authority above and beyond what a court has allowed for.
Types of Guardianship
Indiana law provides for several types of guardianship. A guardianship is a fiduciary relationship in which the guardian takes over personal property and/or care and control of a protected person (the ward). The basic types of guardianship available under Indiana law include:
Limited guardianship: A limited guardianship is set up to manage specific places and/or property, and has limited powers as set out in the guardianship order. A limited guardianship may be used when only certain powers are required, or to protect the ward from unnecessary restrictions.
Unlimited guardianship: An unlimited, or plenary, guardianship gives the guardian full authority over the person and property of a ward. The guardian’s powers are unlimited except as set out in the guardianship order.
Temporary guardianship: With a temporary guardianship, the court appoints a guardian when an immediate need exists, pending a more permanent guardianship. A temporary guardianship is typically less than six months in duration.
Emergency guardianship: Like a temporary guardianship, an emergency guardianship appoints someone to navigate a temporary situation when a guardian has not been appointed. However, an emergency guardianship lasts much shorter than a temporary guardianship, often just a few days.
Eligibility Requirements for Guardianship
Individuals eligible to be appointed as a guardian in Indiana include individuals age 18 or older. There is no residence requirement for a guardian beyond the fact that he or she must live within Indiana, but the law does prohibit a physician’s practice from serving as a guardian. Also prohibited from serving as a guardian are those individuals convicted of a felony, though that restriction does not apply if the person is pardoned or if the conviction was for a Class C misdemeanor or lower.
The law also precludes from guardianship those who have been determined incapable of exercising judgement by reason of being:
A legal entity can serve as guardian in Indiana, but only if it is a business entity authorized to conduct a guardianship in Indiana. This includes any professional guardian bonded and approved by the state.
Applying for a Guardianship
The applications process for a guardianship in Indiana is a thorough one. The purpose is to give legal authority to an individual or business/organization so that they can act on behalf of an incapacitated person. The following steps can be expected in the guardianship application process:
Step 1 – File Your Application
The guardianship process begins by filing an application with the court whose county your ward is domiciled at the time of filing. Your petition will need to list the following information:
Your application must also be accompanied by two documents:
While there are forms available for legal documents through the Indiana Courts website, it is recommended that you hire an attorney to provide guidance on court specific administrative procedures and to ensure that you have all the necessary information contained within your documents. In addition, if applicable, the ability to obtain a fee waiver and provide indigence in accordance with the law, forms must be filed to that effect as well.
Step 2 – Court Fee Payment
The costs involved with filing your initial application, along with any subsequent petitions, are not insubstantial. In an uncontested situation, attorney and filing fees can reach into the thousands of dollars when applying for guardianship. Due to the high costs to the petitioner and state of Indiana, it may be possible to seek a fee waiver for individuals applying for guardianship. The Indiana courts may waive the filing fee and attorney fees based on indigence. Submit an Affidavit in Support of Order Waiving Fees (form T.C. 26-38997) when requesting a fee waiver.
If the court grants your fee waiver request, you will not have to pay upfront costs to file your application with the court. However, if your petition for waiver is denied, you will be required to pay your attorney’s fees, court fees, publication fees (mailing notice to the public and creditors), and any other processing fees imposed by the court, the county clerk’s office, and/or newspaper. To help offset these costs, you may be able to request the Department of Revenue to pay these costs on your behalf (IC 29-1 13-1).
Due to the high fees involved, it is recommended that you obtain the assistance of an experienced Indiana guardianship lawyer so that you can avoid any unnecessary costs and delays in the process.
Step 3 – Court Consideration
Once your guardianship petition has been filed, the clerk will issue an appointment for a hearing before a judge, along with a summons. You will also be required to publish, for three successive weeks, a notice of the hearing. In addition, an affidavit must be filed certifying that you have fulfilled the requirement to notify the parties involved, as well as all interested parties, of your intent to file a guardianship.
A personal appearance is required to be made before the court by the proposed guardian, the ward, and the individual served with the summons. Failure to appear can be detrimental in a guardianship matter, as the court will likely deny the application for guardianship as a result.
The hearing is a fact-finding inquiry to determine whether or not a guardianship is appropriate. The hearing is where the judge, interested parties, and the public have the opportunity to learn about the medical, social, and financial history of the ward. If granted, you will be appointed as the legally authorized guardian of the ward.
Rights and Duties of a Guardian
The particular rights and responsibilities of a guardian can vary depending on the nature of the guardianship – i.e., for an incapacitated person or for a minor child. The Uniform Guardian and Ward Act is the Indiana law that provides specific rules and requirements for guardians, with guidance on the scope of authority a guardian has in different contexts. It is important for a guardian to review the Indiana code as well as the order appointing guardian for detailed instructions regarding the scope of the guardian’s authority. Guardians must also understand that a guardian has the responsibility to take care of his/her ward’s medical and financial affairs, but they can’t infringe upon fundamental constitutional rights – like the rights to vote, assemble, speak freely, travel, etc . After gaining the responsibility of being a guardian, that basic principle is vital.
Every guardian is required to file an annual report describing the guardian’s interaction with the ward and outlining the guardian’s evaluation of the overall condition of the ward. This practice makes it imperative that a guardian understand the law governing those choices; if choices are not made in accordance with the law, and reported properly and completely, guardians can be removed and held liable for any damages caused to the ward as a result of their action.
Challenging a Guardianship
Like any other court order, a determination of incapacity and the appointment of a guardian is subject to appeal and ultimately modification, but very difficult to do so. The statute sets out the different rights and process for contesting a guardianship, and it can be a long and difficult road to take. There does not have to be anything "wrong" with the initial judge or court that rendered the findings and orders, but the Respondent has the right to contest and/or appeal those decisions. Indiana Appellate Procedure allows for a Petition for Rehearing to be filed within 30 days if there is a material error of law contained in the initial Order or there is newly discovered evidence that would affect the rights of the parties. It requires a type-written document specifying the errors, with appropriate citations to the law, and is limited to 15 pages in the Court of Appeals or 20 in the Supreme Court. It is not designed to present new arguments or new law and will only be granted if the court feels that the "analysis was incomplete, overlooked or misconstrued the law or facts, or followed an analysis, which was suggested but not adequately developed by the parties". (Indiana Court Rules, Indiana Rules of Appellate Procedure, Appellate Rule 54). The Courts are not likely to agree to rehear any information that was available to them during the trial. Transcript notes at trial must be taken if there is an appeal or rehearing expected. Appeals must be filed within 30 days after the ruling and must be done through the Court of Appeals. Again, it is more likely to be considered if there is an indication that the initial trial was improper in itself rather than simply disagreeing with its findings. The petition should provide sections explaining the reasons for the appeal, references to the appendix, and explanation of how the initial ruling was wrong. It should be typed in the form prescribed by the courts and cost about $2500.00 in attorney fees and about $500.00 or more for the clerk’s costs (Indiana Court Rules, Indiana Rules of Appellate Procedure, Appellate Rule 9). These appeals can take an extraordinarily long time to resolve, up to several months sometimes, and a good deal of effort in that time will be required by all parties involved.
Termination and Modification of Guardianship
A guardianship is not necessarily a permanent fixture in the life of an adult. As time goes on, the need for a guardian to continue has to be evaluated. Part of that evaluation is based upon the circumstances of the person who is the subject of the guardianship. Guardianships don’t exist forever. Their duration is expressly stated in the initial guardianship order, usually for either one year or for the person’s life unless sooner terminated.
In Indiana, a guardian can be relieved if the ward becomes a competent adult, or if the guardian resigns or is otherwise removed by the court for good cause. Indiana law provides certain procedures that the guardian can follow to surrender the guardianship. The specific steps depend on whether the guardianship is a full or limited guardianship. The process is slightly different depending upon whether it is the guardian surrendering the guardianship or a request by the person who is the subject of the guardianship.
In order to terminate the guardianship, the guardian must obtain from the court an order approving the discharge or resignation of the guardian, and must file a final report and account, including a written request to confirm that the guardianship be terminated. If the request is by the guardian, the affected ward must have his or her attorneys appointed, and both the guardian and the prevailing ward must be in the jurisdiction. This is to provide all parties to the guardianship an opportunity to object to the final report and discharge, if necessary.
In addition to granting the existing guardian an order relieving that guardian of his or her duties, the court will enter a judgment authorizing the next successor guardian and approving the report and account. But the court must always find that the person will serve the best interests of the ward.
If the guardianship is terminated at the death of the ward, then that order must be entered within thirty days of the guardian’s death. The order approving the discharge or resignation of the guardian terminates the authority of the guardian and the power of the estate and business.
FAQs About Indiana Guardianship
This FAQ is intended to provide answers to some of the common questions surrounding Indiana guardianship.
Q: What is a Guardian?
A: A guardian is someone appointed by a court to oversee the affairs of another person, whether that means managing the affairs (guardianship over the person’s estate) or taking care of the actual person (guardianship over the person).
Q: Who can be a Guardian?
A: Anyone can be appointed as a guardian in Indiana except for those who are currently involved in a lawsuit (meaning they are a party, witness, or otherwise involved). All potential guardians must pass criminal background checks and be deemed suitable to serve as a guardian. There is no formal requirement saying that a guardian has to be related to the person , though having a familial relationship is always considered in the decision. Most people ask a trusted family member or professional (whether a lawyer, doctor, or even someone they know in a non-legal capacity) to serve instead of serving themselves as guardian.
Q: Do I have to hire a lawyer to help with guardianship in Indiana?
A: The short answer is "no" but the long answer is more complicated. Many people choose to do the necessary work on their own and do not hire a lawyer. Others hire a lawyer because it is such an emotionally complicated process, varying by county.