IBA: Indiana Legislature Passes New Guardianship Laws

By Rebecca Geyer, Hollingsworth & Zivitz, PC
 

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.•