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IBA: Indiana Legislature Passes New Guardianship Laws

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By Rebecca Geyer, Hollingsworth & Zivitz, PC
 

Rebecca Geyer Geyer

The Indiana legislature passed several new guardianship laws in the 2011 legislative session which impact guardianships of minor children and incapacitated adults. Effective July 1, 2011, Indiana’s new standby guardianship statute (Ind. Code Sec. 29-3-3-7) allows the parent of a minor or the guardian of a protected person to designate a standby guardian for the minor or protected person in a written declaration. An alternate standby guardian may also be named in the declaration. The designated standby guardian begins serving as guardian of the minor or protected person upon the death or incapacity of the parent or guardian. The statute is intended to ensure that a minor or protected person has a legal guardian in place until a petition for guardianship of the minor or protected person can be heard following the parent’s or guardian’s death. The standby guardian’s authority terminates ninety (90) days after it becomes effective; however, if the designated standby guardian files a petition for a guardianship of the minor or protected person during that ninety (90) day period, the authority of the standby guardian remains in effect until the court rules on the petition. This new legislation could have interesting effects, especially for the children of divorced couples. The custodial parent of a minor child could utilize the new statute to appoint someone other than the child’s other parent as legal guardian should he or she become incapacitated or die, and this authority would remain in effect for at least ninety (90) days or until a court decides who should have legal guardianship over the minor child should the standby guardian petition for guardianship.

The Indiana legislature also passed the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. The Act is designed to address the issue of which state has jurisdiction over guardianship proceedings for a protected person. The issue has become increasingly common as our population ages and individuals reside or own property in more than one state. Imagine a couple who reside in Florida but rents property in Indiana each summer to be near their family. Soon after arriving in Indiana, Husband becomes seriously ill and family members must petition for guardianship in order to handle his personal and financial affairs. Which state should have jurisdiction over the guardianship proceedings – Indiana or Florida? Previous Indiana law gave Indiana courts jurisdiction over the guardianship proceedings because Husband is physically residing here despite having his permanent home in Florida. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act is designed to address these issues. Indiana is one of about 20 states to adopt the uniform changes which create more uniform guardianship laws throughout the country and reduce conflicts between the states.

Under the new Uniform Act, a Court would have jurisdiction over an adult guardianship matter only if it passes certain tests. The first test in determining jurisdiction is the “home state” test. A Court has jurisdiction over an alleged incapacitated person if it is the individual’s home state, meaning that the person was physically present in that state (including any period of temporary absence) for at least six (6) consecutive months before the filing of the petition for guardianship or protective order. If the home state test is met, the Court has jurisdiction. If the “six (6) consecutive months before filing requirement” does not apply, there can still be a home state if the respondent was physically present in that state (including any period of temporary absence) for at least six (6) consecutive months ending anywhere within the period defined by the six (6) months before filing.

The Uniform Act also contains provisions concerning what happens when there are two simultaneous guardianship petitions in different states. If a court has yet to issue a final ruling, it is required to stay its proceedings and communicate with the other state’s court. One state may be required to dismiss the proceedings filed in its court if the other state is determined to be the more appropriate forum. If a court follows the new rules and makes a guardianship appointment before hearing any objection or before learning of the filing in another state, it would keep jurisdiction. Once a court has entered a final order consistent with the new law, that court keeps jurisdiction unless the case is transferred.

The new Uniform Act also sets up procedures for states to cooperate with each other regarding the transfer of guardianship cases. Under previous law, if a protected person moved to another state an entirely new guardianship proceeding would have to be brought in that state. Under the new Uniform Act, there is a procedure for cooperation between the states and the guardianship can be moved without re-litigating the incapacity of the protected person or the choice of guardian. The new rules also allow a guardianship in one state to be registered in another state. Following registration, the guardian has full power to act in the new state as if he or she were in the original state of jurisdiction.

Indiana’s temporary guardianship laws were also amended. Ind. Code Sec. 29-3-3-4 now extends the authority of a temporary guardian from sixty (60) days to ninety (90) days. The statute also updates the notice requirements for temporary guardianship to ensure that a copy of the petition for temporary guardianship, the court’s order setting a hearing on the petition for temporary guardianship, and the notice required by Ind. Code Sec. 29-3-6-2 are served on every person entitled to receive notice under statute and on each additional person to whom the court directs that notice be given on the earlier of the date a hearing is scheduled or when the court enters an order appointing a temporary guardian. The new statute is designed to ensure that petitioners make every effort to provide advance notice to all interested persons prior to the appointment of a temporary guardian or to at least explain the reasons why advance notice cannot or should not be given in compliance with Trial Rule 65.•

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  • In jail
    I plan to take guardianship over a baby that will be born in prison. I live in Indiana will there be any complications for me fully adopted the child later once child's mother is out of jail?
  • Relocation
    I have guardianship of my 13 years grandson for over 5 years. Neither patents PAY support, do not see my grandson, no letters, BD gifts NOTHING N WERE WANTING TO retire n relocate to my husband n co-guardian home state MO. DOES MY 13 YEAR OLD GRANDSON HAVE ANY SAY? HE'S NOT WANTING TO BE AROUND HIS MOTHER DUE TO ABSENCE OVER YEAR 1/2. IS THIS LEGAL N CAN IT BE DONE
  • Legal Guardianship
    My parents took advantage of the fact that I was homeless in 2012 and went to court and got Legal Guardianship I my 2 daughters. I am finally back on my feet and want them back, but now they want to fight me on it. I want to raise my children and have them almost all the time on the weekends. Mynparents are both almost 70 years old and they play favorites which bothers me a lot. Do I have a leg to stand on if I go to court to terminate lehal guardianship? My kids want to live with me and I want to raise them, this was supposed to be temporary, and now it is turning into a fight. Ridiculous
  • My kids
    I have been dealing with Cps for a long time and it seems that with the moths Losing her rights they are determined to take mine I was a victim of a violent crime I was shot 4 times 2 of them being in the head . I was wondering my kids have been with their aunt for a year now and if I was to sign temporary guardianship over to her would that remove Cps outta their lives??
  • need to know
    I signeI to my kid but we did not go to court or it was not notarized are those papers legal or not
  • I GOT GUARDIANSHIP OF MY GRANDSON AGE 6
    YOU NEED TO GO TO THE FREE LAYERS ON THE ST. DE PAUL ON 3OTH STREET INDPLS IND WHERE THEY HELPED ME.. FOR 175.00 IT WAS QUICK AND EASY AND WENT TO COURT QUICK AND MY GRANDSON IS DOING BETTER THEN HE WAS , MY DAUGHTER WAS HOMELESS, BAD BOYFRIEND SHE WANTS TO LIVE LIKE THIS, BUT MY GRAND SON DON'T,,,SO I STEPPED IN,YOU NEED TO BE LEGAL FOR SCHOOL,DOC APP BECAUSE WHEN HE WAS HERE SHE COME AND GET HIM AND LIVE IN TENT,GO HUNGRY AND I COULD NOT DO ANY THING DO TO I WAS NOT HIS GUARDIAN SO ITS BEST TO BE LEGAL FOR THEM AND PRAY THEY GET THEIR STUFF TOGETHER IN LIFE
  • guardianship
    I have had my sisters ten month old daughter for about for months. My sister is homeless, jobless, and is having her own problems. She is not stable to take care of her child. Me and myy husband are and have been doing so for four months now. My niece is very happy and very healthy. She is wanting to sign guardianship over to me and my husband. We don't want to have to go through court's or anything. My sister knows my home is the best place for her daughter. So she is just wanting to be able to sign a few papers and be done. Can we sign a few papers and be done or does it have to go to court?
    • temporary guardianship
      I have three kids which are in my mother care due to a chins case... Can i sign for her to have temporpary guardianship over my kids cause she already have paperwork on them they are already placed with here... I need to know can i do this
    • guardianship
      we have a 20 year old daughter trying to do fasa what is the age we are still responsible for her
    • Guardianship
      I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have
    • Any help is appreciated
      I know a lady whose daughter and son has guardianship over her. They do have a Home Health Care company coming in but they leave her with no money. If it wasn't for the daughter that lives with her(not one of the guardians) she would not even have food in her home. The guardians do not visit the lady very often and when they do they are constantly upsetting her. The guardians went behind the lady's back to get guardianship over her. They do not allow the lady to get any money out of her own bank account unless the daughter that is a guardian wants to go out then the daughter will get money out and makes the lady pay for her too. The guardians will not even allow the lady a copy of the guardianship paperwork so that way they lady cannot find out the judges name. The lady is wanting the guardianship revoked but the guardians have the judge believing that the lady is completely out of her mind and she most definitely is not! Is there any thing that the lady can do? or is she stuck in the guardians lies??
    • Relocation
      We have permanent guardianship of our 7-year old grandson in Indiana. His mother is in prison and his father currently lives with us. We want to move to Florida where my husband's brother and elderly mother live. Are we required to file a petition requesting to relocate with the minor child or merely a Notice to Relocate?
    • Temporary guardian
      We have been asked to take in a 2 no old baby because mother is in very unstable situation. We want to do this but will need help with expenses such as medical and formula... Do we have to have custody thru court?
    • temporary Guardianship
      We have a friend who has a 3 yr. old son. He was given full custody of the child by the Dept. of child services in Indiana. We had the child for 3years as a foster child. Since the case has closed the father has become homeless and jobless. He is wanting to give us temporary guardianship of the minor child until he can get back on his feet. We have filled out a online temp guardianship form for Indiana and have had it signed in front of a notary, and witnessed and recorded. This basically gives us the right to educational, health and travel rights. Is this enough or is there something else we need to do. We do not have the money for a extension lawyer and we definitely don't want to involve the Vigo county DCS office. Thank you
    • Co-Guardianship of Special Need Sibling
      Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you
    • Temporary Guardianship
      My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?
    • permanent guardianship
      My husban and I have permanent guardianship of our 6 year old grandson,and the mother has lost her parenting time with him,and now the mother is trying to terminate this,we have had him for over a year in a half.

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    4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

    5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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