Judiciary committee to consider guardians being able to file for divorce

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Tackling an issue that has appeared in the Court of Appeals twice in recent months, the Senate Judiciary Committee will hear legislation that would allow guardians to file for divorce on behalf incapacitated adults.

Senate Bill 59 is one of eight bills on the committee’s agenda Wednesday. Under the proposed bill, a court would be able to grant a guardian’s request for permission to file for divorce only if the guardian proves by a preponderance of the evidence that the dissolution is in the best interest of the protected person.

The guardian must be named in a petition for dissolution of marriage and must file with that petition a copy of the court order granting the request for permission to file the petition.

Indiana law does not currently allow a guardian to petition for dissolution of marriage on a ward’s behalf. The Indiana Court of Appeals issued opinions in October and July on this topic, in one case reversing the grant of a divorce filed by an incapacitated man’s daughters, who are his co-guardians.

The appellate judges cited caselaw from 1951 to support their rulings and also pointed out that the current laws governing dissolution of marriage and guardianship of incapacitated persons do not provide a means for a guardian to file for divorce on behalf of his or her ward. Court of Appeals Judge Paul Mathias wrote in In Re the Marriage of Leora McGee v. Robert McGee, 45A04-1301-DR-33, “In a world full of subsequent marriages and available pre-nuptial agreements, we will not read into a statute such a sweeping and potentially overreaching authority, authority that is not the clearly expressed intent of the General Assembly.”

The committee meets at 9 a.m. in Room 130 at the Statehouse. Also being heard Wednesday:

•    SB 41 provides that property sold at auction in a partition sale shall be sold without relief from valuation or appraisement laws.
•    SB 138, on victim advocates in civil proceedings, removes restrictions on grants from the victim services division of the Indiana Criminal Justice Institute for certain entities to enter into a contract with the domestic violence prevention and treatment council. The bill also provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary. A victim advocate is not considered to be practicing law when performing certain services.
•    SB 227 expands immunity from arrest or prosecution for certain alcohol offenses if the arrest or prosecution is due to the person reporting a medical emergency, being the victim of a sex crime, or witnessing and reporting a crime. Current law provides immunity only if the person reports a medical emergency that is due to alcohol consumption.
•    SB 229 on firearm buyback programs
•    SB 305 on Schedule I drugs and “spice”
•    SB 291 on human trafficking investigations
•    SB 312, on the assignment of lottery prizes, allows a person who wins a prize payable in installments from the lottery commission to assign the future prize payments under certain circumstances upon court approval.



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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?