Guardianship Flashcards
What are developmental disabilities?
Developmental disability means present before age 22, severe, chronic, and/or genetic. Some examples are cerebral palsey, mental retardation, birth defects and genetic abnormalities.
Is a separate petition always required for each individual?
IC 29-3-5-6
Two (2) or more minors or incapacitated persons who are children of acommon parent, parent and child, or husband and wife, separate petition need not be filed for each.
Have to have separate accountings unless everything is joint; but an actual segregation of assets is not required except as required by the court.
If the court finds that 1) person is incapacitated; and 2) appointment is necessary, does judge have discretion to appoint a guardian?
No discretion. Code says “shall” appoint. IC 29-3-5-3
May a court limit the scope of the guardianship?
Yes, If it is alleged and the court finds that the welfare of an incapacitated person would be best served by limiting the scope of the guardianship, the court shall make the appointive or other orders under this chapter to:
(1) encourage development of the incapacitated person’s self-improvement, self-reliance, and independence; and
(2) contribute to the incapacitated person’s living as normal a life as that person’s condition and circumstances permit without psychological or physical
harm to the incapacitated person.
What options does the court have if it finds it’s not in the best interests of the incapacitated person or minor to appoint a guardian?
The court may:
(1) treat the petition as one for a protective order and proceed accordingly;
(2) enter any other appropriate order; or
(3) dismiss the proceedings
**A protective order in gship is usually a “one time” deal, ie., need to sell real estate once and person needs help with it.
What are the petitioner’s requirements to show the court in its petition about the petitioner’s efforts to use less restrictive alternatives?
In EVERY guardianship petition, the petitioner must provide a description of the petitioner’s efforts to use less restrictive alternatives before seeking guardianship, including:
(A) the less restrictive alternatives for meeting the alleged incapacitated person’s needs that were considered or implemented;
(B) if a less restrictive alternative was not considered or implemented, the reason that the less restrictive
alternative was not considered or implemented;
and
(C) the reason a less restrictive alternative is insufficient to meet the needs of the alleged incapacitated person.
What should the court CONSIDERATIONS for appointment of guardian?
The court shall appoint as guardian a qualified person or persons most suitable and willing to serve, having due regard to the following:
(1) Any request made by a person alleged to be an incapacitated person, including designations in a durable power of attorney under IC 30-5-3-4 (a).
(2) Any request for a minor made by a parent or custodian.
(3) Any request contained in a will or other written instrument.
(4) A designation of a standby guardian under IC 29-3-3-7.
(5) Any request made by a minor who is at least fourteen (14).
(6) Any request made by the alleged incapacitated person‘s spouse.
(7) The relationship of the proposed guardian to the individual for whom guardianship is sought.
(8) Any person acting for the incapacitated person under a durable power of attorney.
(9) The best interest of the incapacitated person or minor and his or her property.
Who are persons ENTITLED to be considered as a guardian?
The following are entitled to consideration for appointment as a guardian under sec. 4 of this chapter in the order listed:
(1) A person designated in a durable power of attorney.
(2) A person designated as a standby guardian under IC 29-3-3-7.
(3) The spouse of an incapacitated person.
(4) An adult child of an incapacitated person.
(5) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a
parent of an incapacitated person and attested to by at least two (2) witnesses, or in a power of attorney of a living parent.
(6) A parent or custodian of a minor.
(7) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six months before the filing of the petition.
(8) A person nominated by the incapacitated person who is caring for or paying for the care of the incapacitated person.
(b) With respect to persons having equal priority, the court shall select the person it considers BEST QUALIFIED to serve as guardian. The court, acting in the BEST INTEREST of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section.
Option if guardianship estate is less than $10,000?
Deposit the money or delivery it to suitable person.
Then just do a guardianship of person.
Who has health care power under Chapter 16 if person did not name one?
Consent to health care may be given in the following order of priority:
(1) by a judicially appointed guardian
(2) by a spouse
(3) by an adult child
(4) by a parent
(5) by an adult sibling
(6) by a grandparent
(7) by an adult grandchild
(8) by the nearest other adult relative
(9) by a friend who is an adult and has maintained contact with the individual and who is familiar with the individual
(10) by a religious superior
What is the old rule of jurisdiction of guardianship?
Physical presence. You could be in a state for one day and someone seek guardianship over you. “Granny snatching law”
What is the new rule of jurisdiction of guardianship?
“Home state” (Uniform law). **Did not change jurisdiction for minors - ADULTS ONLY.
A. The “home state” is the state in which the respondent was physically present, including any period of temporary absence, for AT LEAST six (6) consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian.
B. In the case of a respondent for whom no state satisfies clause (A), the state in which the respondent was physically present, including any period of temporary absence, for AT LEAST six (6) consecutive months ENDING WITHIN the six (6) months PRIOR to the filing of the petition.
What is the result of the new “home state” rules for adult guardianship?
This law drastically changes the guardianship jurisdiction rules for new filings. The Courts no longer
have automatic jurisdiction over the person and property of a new Indiana resident. An adult can become an Indiana resident immediately with the intent to permanently reside here but that does not mean that person is immediately subject to Indiana guardianship jurisdiction. You first must determine if that person has a home state.
What if there is no “home state” for adult guardianship?
If no home state, then look for “a significant connection state”.
Factors: location of family, the location of property, and ties to the state like voter registration, state tax filings, vehicle registrations, drivers license, where the respondent has received services, and even social relationships can be considered
What does the uniform guardianship statute provide between different states?
Cooperation. Most states have adopted the uniform law.
Cooperation in:
- original jurisdiction
- Inter-state transfer of guardianship
- Recognition of foreign guardian
Under uniform gship law, what is the transfer of guardianship to another state?
“A guardian appointed in this state may petition the court to transfer the guardianship to another state.”
What is the process to transfer gship to another state under uniform law?
1) Provisional petition to transfer to another state filed in current state where gship is pending
2) Provisional acceptance by new state
3) Final order of transfer in current state
4) Final acceptance of transfer by new state
