What is a guardianship?
A guardianship is a legal action that allows a competent adult to make decisions on behalf of an incapacitated adult or minor child (“protected person”). Guardianship can be over the person, over the estate, or over the person and estate of the protected person. Guardianship over the person allows the guardian to make decisions including where the person resides, obtaining medical care, educational decisions, etc. Guardianship over the estate addresses the property and financial affairs of the protected person.
When is a guardianship necessary or appropriate?
Sometimes it becomes necessary that a person other than a parent provides care for a child. Examples may include when the parent is medically unable to care for the child, the parent is incarcerated, a child in need of services action was initiated, the child is living with a relative for educational purposes or by agreement of the parties. When the decisions regarding the child’s upbringing is left to a person other than a parent, a guardianship action may be appropriate.
A parent may need to obtain guardianship of his/her child when the child turns eighteen and is unable to make decisions or handle his/her affairs due to a developmental disability, mental disability, accident or illness. In order for a parent to continue to coordinate care, communicate with health care providers and/or teachers, or obtain benefits on behalf of the child, a guardianship action may be necessary.
Can we obtain a Temporary Guardianship instead of a Permanent Guardianship?
When a person is seeking a guardianship, often they will indicate that the guardianship may not be necessary forever, but for a shorter period of time. A person may indicate that they want to seek a temporary guardianship. Under Indiana law, however, a temporary guardian may be appointed for a period not to exceed ninety (90) days, if:
- (1) a guardian has not been appointed for a protected person;
- (2) an emergency exists;
- (3) the welfare of the protected person requires immediate action; and
- (4) no other person appears to have authority to act in the circumstances.
Therefore, if a guardian needs to be appointed for a period in excess of ninety (90) days, then a permanent guardian will need to be appointed.
Who must receive notice of a guardianship?
Occasionally, people have concerns that a guardianship of their child can be ordered without the parent being notified. However, the law requires the following people to receive notice of a guardianship action:
- For a minor child:
- The minor, if at least fourteen (14) years of age.
- Any living parent of the minor, unless parental rights have been terminated by a court order.
- Any person alleged to have had the principal care and custody of the minor during the sixty (60) days prior to the filing of the petition.
- Any other person that the court directs.
- For an incapacitated adult:
- The alleged incapacitated person.
- The alleged incapacitated person’s spouse.
- The alleged incapacitated person’s adult children.
- If no spouse or adult children, then to the alleged incapacitated person’s parents.
- Any person who is serving as a guardian or who has cared for or had custody of the alleged incapacitated person.
- If no spouse, adult children or parent exists, then at least one (1) of the persons most closely related by blood or marriage to the alleged incapacitated person.
- Any person known to the petitioner to be serving as the alleged incapacitated person’s attorney-in-fact under a durable power of attorney
- Any other person that the court directs.
Before the court orders guardianship, the court must hold a hearing to determine if appointment of a guardian is necessary.
Can a Guardianship be terminated?
Often, when a parent hears permanent guardianship, they may believe that they are forever losing the right to care for their children. However, Indiana law sets the framework for when a guardianship can be terminated. Indiana Code 29-3-12 lists the conditions for termination of a guardianship which include where the minor turns eighteen (18) years of age, an incapacitated person is no longer incapacitated, or if the guardianship is no longer necessary for any other reason. Guardianships also terminate upon the death of the protected person.
A guardianship of a minor may not terminate at age 18 where the guardianship was established when the child was a minor, and the child was determined to be incapacitated by the court. Or, when the guardianship was established when the child was a minor and the minor became the recipient or beneficiary of financial assistance by the department of child services through the guardianship.
Another instance where a guardianship of a minor may not terminate at age 18, is where the guardian and the protected person jointly petition the court to extend the guardianship. The parties may request the guardianship to continue for any period or until the protected person turns twenty-two years of age, if it is in the best interest of the protected person. The protected person does not have to have a legal disability for extension beyond age 18.
When a guardian is appointed, do parents still have rights and/or obligations for the child?
When an order appointing a guardian is entered, the court has the power to delineate the rights and obligations that the parents retain. The order may indicate what each parent must contribute towards child support, the order may set specific parenting time, and it may set conditions that the parents must meet to modify or terminate the guardianship. If an order creating a guardianship contains terms and conditions that a parent must meet to modify or terminate the guardianship, then the parent must show the court that they have complied with the terms and conditions; and that the parent is fit to assume all parental obligations by a preponderance of the evidence. If the guardianship was initiated as a result of the parents and the children’s involvement with the department of child services through a petition alleging a child is a child in need of services (CHINS) action or an informal adjustment, the department of child services must be involved if any future modification or termination of the guardianship is sought.
If you need assistance obtaining a guardianship or are seeking to modify or terminate a guardianship, give the attorneys at Banks & Brower, LLC a call today at (317) 870-0019 or email us at firstname.lastname@example.org.