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Guardianship

When it comes to family law, all cases tend to strike a chord with those involved. Guardianship cases, however, can be especially draining for everyone affected. You only want what is best for your loved ones. But with so much at stake, it can be difficult to see clearly and make decisions with an objective perspective. After all, when the care and wellbeing of another person is on the table, shortcuts are not an option.

Despite your best efforts to remain cool and collected, you may find yourself questioning your ability to handle the stress on your own. Rest assured that you are not alone in this, as many people struggle with the process of awarding or receiving guardianship of another person. So when tensions rise and emotions cloud your perception, an experienced Hamilton County guardianship attorney can help you navigate the process.

Understanding a Guardianship Case

Guardianship is generally awarded in one of three situations. The most frequent reasons for the bestowal of guardianship are in cases that involve a minor, a developmentally disabled adult or an incapacitated senior.

Guardianship of Minors

The need to appoint a guardian for a minor can arise under a few different scenarios. These include the death of both parents, abandonment of parental responsibilities, and cases of neglect or abuse where it is unsafe for a child to remain in his or her family home.

If a minor child’s parents die or become legally incapacitated due to illness or injury, then a guardian will need to be appointed to provide care and financial management until the child reaches the age of majority. In this tragic scenario, the best-case circumstance is that the parents have designated a guardian in their estate plan. As long as the estate plan is legally enforceable (as will usually, though not always, be the case), then the parents’ wishes will control unless their chosen guardian declines to serve in the role. If no guardian has been designated, then one will need to be appointed through the probate process.

The probate process is also used to appoint a guardian for a minor child in cases where the parents are living and have not been deemed legally-incapacitated but are otherwise unavailable or unfit to raise the child. As you might expect, these guardianship proceedings are often highly emotionally charged, especially in cases where the parents wish to retain custody of their children. Attorney Hains is experienced in representing all family members during this process, and he can help you understand what you need to do secure the best outcome for the children involved – which may include exploring alternatives to guardianship as well.

Guardianship of Developmentally Disabled Adults

As individuals with developmental disabilities mature into adulthood, appointing a guardian can become essential to ensuring that they have the help and support they need to live stable lives and maintain as much independence as possible. When seeking to establish guardianship of a developmentally disabled adult, the person seeking to be appointed as guardian must file a petition with the court which contains the following information (this list is not exclusive):

  • The nature of the adult’s incapacity;
  • The approximate value and description of the adult’s property, including insurance and financial accounts;
  • Any proposed limitations on the scope of guardianship;
  • Whether the adult is currently the subject of a protective order or the ward of a previously-appointed guardian;
  • The names and addresses (if known) of the adult’s closest relatives;
  • The name and address of the person or institution that currently has custody of the adult; and,
  • The petitioner’s interest in being appointed as the adult’s guardian.

These same factors are considered in guardianship proceedings involving minors and incapacitated seniors as well. Once the petition has been filed, the probate court will schedule a hearing at which the petitioner, the adult and anyone opposed to the appointment of the petitioner as the adult’s guardian will have the opportunity to appear. Unless the adult already has an attorney, the court may appoint an attorney to represent him or her during the guardianship proceedings.

Guardianship of Incapacitated Seniors

In many cases, adult children and other loved ones will need to serve as guardians for their aging parents and loved ones. If possible, it is generally best to appoint a guardian prior to the determination of legal incapacity – and this appointment can be structured to take effect only if and when it becomes necessary. If you parent or other loved one’s condition has deteriorated rapidly, or if for any other reason, the necessary documentation is not already in place, attorney Hains can work with you to ensure that an appropriate guardianship is established as quickly and efficiently as possible.

Each of these cases can and should be handled with care, as the outcomes impact both those seeking to become guardians and those who will be affected by the guardianship verdict. Ultimately, all three stem from a basic acknowledgement that the senior, minor or adult in need of a guardian can no longer, or has never been able to, properly care for themselves. Regardless of the reason for entering into guardianship discussions, guardianship attorney Hains can assist you with the legal process.

Well-being and financial stability are two of the main issues considered when appointing a legal guardian. Those seeking guardianship rights must, therefore, demonstrate the ability to offer a high quality of life for the ward, while ensuring their financial security for the future.

Guardianship Attorney-Client Teamwork

When handling guardianship cases, Joshua Hains speaks extensively with each client to gain a better understanding of the current circumstances. All cases are fact-sensitive, but guardianship cases are especially so. Thus, it is essential to begin the attorney-client relationship with clear communication and transparency. Attorney Hains works specifically with each client’s individual needs, but can only do so once all of the details have been presented.

After gaining a comprehensive understanding of the case at hand, Attorney Hains can begin to address each element of the case, offering insight and guidance at each step along the way. Whether that means filing a petition, reaching out to the parents of the child in question, or waiting for further action, all clients are kept well informed of the progress being made.

Frequently-Asked Questions (FAQS) about Guardianship in Indiana

Q: What does it mean for a person to be deemed legally incapacitated in Indiana?

Legal incapacity is defined in Section 29-3-1-7.5 of the Indiana Code. The laws states that an “incapacitated person” is an individual who:

“[I]s unable (A) to manage in whole or in part the individual’s property; (B) to provide self-care; or (C) both[] because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity.”

A person can also be deemed legally incapacitated in Indiana if he or she has a developmental disability, which is separately defined as, “a severe, chronic disability,” that is attributable to cerebral palsy, epilepsy, autism, or any other condition that, “results in similar impairment of general intellectual functioning or adaptive behavior or requires treatment or services similar to those required for a person with an intellectual disability.” With regard to developmental disabilities, certain other conditions must be met as well. For example, the disability must be “likely to continue indefinitely,” and it must result in “substantial functional limitations” in multiple significant areas of life.

Q: What is a “ward”?

In the context of guardianship, the term “ward” simply refers to the individual for whom a guardian has been appointed. During your guardianship proceeding, you may also hear reference to the term, “protected person.” In Indiana, the term “protected person” has the same meaning as the term, “ward.”

Q: What are a guardian’s rights and responsibilities in Indiana?

In Indiana, a guardian has broad authority and responsibility to make decisions on the ward’s behalf unless the guardian’s authority and responsibility have been expressly limited by the court during the guardianship proceedings. In general, a guardian’s authority includes:

  • Entering into contracts
  • Consenting to medical care
  • Deciding where the ward should live
  • Managing the ward’s finances

A guardian’s general responsibilities include, “providing or supervising the protected person’s care; and ensuring their property, finances, and assets are properly preserved and managed. Guardians are also generally required to regularly inform the court on the status of these matters.”

Q: If a person has a guardian appointed for him or her, what legal rights does that person retain?

In most cases, a ward will retain the following rights. If a guardian’s authority is limited, any powers not conferred upon the guardian will remain with the ward.

  • The right to request a different guardian
  • The right to seek to terminate guardianship
  • The right to vote
  • The right to have access to friends and family

Q: What are some of the potential alternatives to guardianship in Indiana?

Becoming someone’s guardian is a significant undertaking; and, while it will be necessary in some circumstances, there are also a variety of potential alternatives available. Depending upon your loved one’s specific needs and his or her current medical condition, these options may include:

  • Informal means of support
  • Establishing a joint bank account
  • Executing a living will or advance healthcare directive
  • Executing a durable power of attorney
  • Obtaining a protective order
  • Pursing a child or adult adoption

When you schedule your free initial consultation at Hains Law, LLC, attorney Hains will sit down with you personally in order to gain a clear understanding of your family’s circumstances and your loved one’s needs. With this information, he can then advise you as to the alternatives (if any) that may make sense for your family.

Q: Is it possible for a guardian to quit or for someone else to have a guardian removed or replaced?

Yes, it is possible for a guardian to quit and for someone else (including the ward) to challenge an existing guardianship order. However, unless and until the court makes a final determination, the guardian must continue to serve in his or her appointed role. Some valid reasons to challenge or seek to terminate guardianship in Indiana include:

  • Guardianship is no longer necessary
  • The guardian is not fit to manage the ward’s finances or health care needs
  • The guardian is not acting in the ward’s best interests
  • The current guardian and a proposed guardian agree that responsibility should be shifted

Indiana Guardianship Resources

Guardianship matters are complicated. From the legal requirements for establishing guardianship to the family and emotional dynamics involved, many people find the process to be overwhelming. However, appointing a guardian for an individual who needs help is also extremely important, and family members and other loved ones who are preparing to go through the process can benefit from learning more about the legal and practical issues involved. If you have questions about guardianship, we encourage you to contact us to schedule a free and confidential consultation with attorney Hains. These resources will help you find more information about guardianship in Indiana as well:

  • Adult Guardianship – This page provides information about Indiana’s Adult Guardianship Office, which, “serves as a resource for courts and general public on all issues related to adult guardianship,” and administers grant funding for volunteer-based adult guardianship programs.
  • Guardianship in Indiana – This page provides answers to more frequently-asked questions (FAQs) about guardianship in Indiana and also contains a link to the government’s Indiana Disability Rights Guardianship Fact Sheet.
  • Indiana Code Section 12-7-2-61 – Section 61 defines the term “developmental disability” for purposes of establishing the need for guardianship in Indiana.
  • Indiana Code Section 29-3-1-7.5 – Section 7.5 defines the term “incapacitated person” for purposes of establishing the need for guardianship in Indiana.

An Experienced Approach to Guardianship Matters in Indiana

After a decade of experience in family law, Attorney Hains has navigated countless guardianship cases. This breadth of experience has situated him as a respected and trusted authority on family law matters in Hamilton County. Integrity, compassion and a commitment to client satisfaction are mainstays of his practice. So, if you are in need of a guardianship attorney, contact Hains Law, LLC online or call 317-688-1305 to set up an initial consultation.