The guardianship process allows a loved one to step in and care for an adult with special needs or who has aged and reached a level of incapacity that leaves them unable to manage their affairs. Guardianships also provide a way for a non-parent to obtain legal authority to care for a child.
Jump ahead to these sections:
- What Types of Guardianships Exist in Indiana?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Indiana?
- What Forms Do You Need to File for Guardianship in Indiana?
- How Do You File for Guardianship in Indiana?
- How Do You Assign a Guardian for a Minor Child in Indiana?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in Indiana
What Types of Guardianships Exist in Indiana?
Temporary guardianships are an expedited option when there's an emergency, and the person needs a guardian to assist them because nobody else has the authority to act. Temporary guardianships last for 90 days.
Permanent guardianships for children last until they turn 18. For an adult, permanent guardianship lasts until the protected person's death. In both cases, an interested party can petition the court to terminate the guardianship sooner if, e.g., a child's biological parent regains the ability to parent or an adult regains capacity after a severe accident.
Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Indiana?
Only the court can appoint a guardian, so even someone with the highest priority still needs to go through the court for that appointment to be made official.
Indiana law prioritizes appointments if more than one person wants to be a guardian. The court will consider the priority list and the suitability of each nominee. The priority is:
- Someone designated in a durable power of attorney
- The spouse of an incapacitated person
- An adult child of an incapacitated person
- A parent of an incapacitated person or a person nominated in the will of a deceased parent
- Anybody related by blood or marriage to the incapacitated person who has lived with them more than six months before filing the petition
- A person whom the incapacitated person nominates, who is already caring for or paying for the incapacitated person's care
Children 14 and older can also nominate their preferred guardian.
What Forms Do You Need to File for Guardianship in Indiana?
Unfortunately, Indiana lacks standard statewide forms for adult or minor guardianship cases. However, each court may make these forms available; Hamilton County and Allen County both publish guardianship forms online. Indiana Legal Help also offers free forms online for minor guardianship cases.
As a general rule, you have to use the specific papers for the court where you're filing. Check the court's website, and if you still don't see any, don't hesitate to contact the court's clerks' office to confirm. Many websites sell court forms online, but they may not be updated or accurate.
There are some standard requirements regardless of where you file a guardianship in Indiana. First, you must file a petition to initiate your guardianship case. It contains basic information about each person involved and your request to the court to appoint a guardian.
The court also requires an "Acceptance of Appointment," the document the guardian signs accepting the position's responsibilities. The court might also want you to file proposed letters and orders of guardianship, which are the documents the court signs to make the guardianship official.
If you decide to hire an attorney for your case, the attorney can draft all the forms for you.
How Do You File for Guardianship in Indiana?
You open a guardianship case in the court that serves the county where the respondent resides. Depending on the court, you might be able to file your case electronically. Otherwise, you can file it in person at the court. Regardless of where you file, expect to pay a filing fee to start the case.
When filing an adult guardianship case, the court requires the petitioner to submit a doctor's letter describing the respondent's condition. The letter should explain the respondent's need for financial or personal decision-making assistance and whether their condition is likely to improve.
The court can appoint an attorney to represent the respondent and advocate for their needs in court.
Before the hearing, the petitioner must notify the respondent and any potentially interested parties about the case. These can include parents, children, and others close to the respondent. Those people and the respondent can participate in the hearing if they choose.
Both minor and adult cases culminate in a hearing. At the hearing, the judicial officer hears testimony and considers evidence about the respondent's need for a guardian and the suitability of the proposed guardian.
How Do You Assign a Guardian for a Minor Child in Indiana?
Depending on your needs, Indiana offers a few options for designating a guardian for your child.
First, parents typically nominate a proposed guardian in their will. Doing so creates clear written evidence regarding the parent's preferences for their child's future care in the event of their death.
A power of attorney might be helpful if you're looking for temporary delegations of authority. Parents can pass their parental responsibilities to another person via a power of attorney document. However, if there is a second parent in the picture, neither powers of attorney nor guardianships can be used to circumvent their custody of the child.
Standby guardianship is the most watertight option for providing for your child's care. Parents can create a document that nominates a standby guardianship for their child, which will take effect if the parents become severely ill or injured to the point of incapacity or death. The standby guardianship lasts for 90 days, which would give the standby guardian time to file for full guardianship with the local court.
While there's no standard statewide form for creating a standby guardian, Kid's Voice of Indiana offers a sample as a starting point.
How Guardianship Works for Minor Children
Guardianships provide a way for non-parents to get a court order saying a child should be in their care and authorizes them to make legal decisions for the child. Guardians can also enroll in public benefits for the child, which is a crucial step for anyone in government-subsidized housing who needs to care for a child who is not their own.
Guardianship of the person
Most people who pursue guardianship do it to be able to legally care for a child. It opens doors to work with schools, medical professionals, and more on the child's behalf. Guardianships result in a legally enforceable court order that specifies who the child lives with and who can care for the child. However, the court only issues guardianships of the person to a non-parent.
These guardianships give all of the powers that parents traditionally have to a non-parent. As a result, the guardian can travel with the child, enroll them in school, and even manage small amounts of money like Social Security benefits. The court can restrict the guardian's power if the situation warrants it.
Guardianship of the estate
Unlike guardianship of the person, parents typically petition the court for guardianship of an estate. This gives the guardian the authority to accept and authorize money and property on behalf of a child. The guardian remains accountable to the court and becomes responsible for protecting the child's money until they reach adulthood.
Children who inherit money or get a personal injury settlement most commonly need guardianship of the estate. Ideally, parents will hear about this from an insurance company or other entity disbursing the funds. These entities will usually require proof of guardianship before releasing the money or property.
How Guardianship Works for Older Adults
Aging impacts the brain and the body, whether through dementia, the cumulative effects of substance abuse, or the progression of chronic illness. Guardianships shouldn't infringe on the civil liberties of adults simply because they lose some bodily functions. Instead, they should provide essential decision-making support when people lose awareness and critical thinking skills.
Guardianships of the person
As with guardianships for children, guardianships for adults can be separated into guardianships of the person and the estate. While guardianships for minors are often package deals with the entire bundle of parental responsibilities delegated to another person, courts strive to make adult guardianships as limited in scope as possible.
A limited guardianship details the guardian's powers and only grants them specific abilities rather than carte blanche authority over the respondent. For example, guardianship of the person might grant the guardian authority to decide their ward's care placement, medical treatment, or other important life decisions. It also gives the guardian the authority to interact with people like doctors on behalf of the ward.
The court prefers restricted guardianships whenever possible.
Guardianships of the estate
A guardianship might be for the person, estate, or both. Guardianships of the estate specifically address the protected person's financial and business interests. As with guardianship of the person, the court determines whether a limited or unlimited guardianship best serves the respondent.
Indiana allows for the appointment of co-guardians. Having two people serve and share the responsibility can be especially beneficial when the protected person needs both care and financial assistance.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
Guardianships for adults with developmental disabilities or special needs protect from exploitation and ideally support independent living as much as the respondent's condition permits. For many families, guardianships allow the person's parents to continue caring for them past their 18th birthday.
Guardianship of the person
Like guardianships for elderly adults, guardianships for the person for special needs adults give another person decision-making authority regarding the person's life and care needs. Depending on the respondent's condition, the range can run from a completely unlimited guardianship to a very restricted guardianship that relies on the guardian to execute the respondent's wishes.
Guardianship of the estate
Some special needs adults only need assistance with managing money. For those respondents, the court can limit the guardianship to guardianship of the estate.
The court can also combine guardianship of the estate and guardianship of the person to give a guardian authority over both care and financial matters.
Frequently Asked Questions: Guardianship in Indiana
Common questions frequently arise in the course of starting a guardianship case. For more complex issues, a local probate attorney can provide detailed advice regarding your situation.
How long is temporary guardianship in Indiana?
A temporary guardianship expires after 90 days. A temporary guardian can petition the court for permanent guardianship.
What's the difference between guardianship, conservatorship, and custody in Indiana?
Custody cases adjudicate the parental responsibilities between parents. They can stem from divorce cases for married parents or be standalone cases for never-married parents. Custody cases can include non-parent third parties in limited situations, and one of the hallmarks of custody cases is establishing a parenting schedule. Those schedules can be intricate and accommodate a variety of family needs.
A minor guardianship grants the rights and responsibilities of a parent to a non-parent. Minor guardianships of the estate allow an adult to manage a minor's finances. Other states sometimes call guardianship of the estate a conservatorship.
Can you get guardianship without going to court in Indiana?
The only guardianship you can establish without going through the court is the standby guardianship parents can create for their minor children. Standby guardianships expire after 90 days, but the guardian can go to the court and petition the court for permanent guardianship.
Choose Your Own Guardian
Indiana's laws about guardianship mean it's crucial to put your wishes in writing. You can choose your own guardian or that of your child should you lose the ability to speak for yourself.
- Indiana General Assembly. "Indiana Code 2021 - Indiana General Assembly, 2022 Session." www.Iga.in.gov