All About Child and Adult Guardianships in Indiana

All About Guardianships in Indiana

Guardianships are legal processes developed to support individuals who cannot care for themselves due to infancy, disability, or incapacitation. Generally speaking, a court will appoint an individual as a guardian for the person or the estate. This person could be a friend or relative willing to accept the high burden and duties that guardianships require.

Guardianships are ordered for minors or adults. They can apply to the care of the person, their estate, or both.

Child Guardianships

Child Guardianships generally apply when the parents of a child are deceased, unwilling, or unable to fulfill their parental duties. They can be for short or long periods. Most child guardianships end when the child becomes an adult. At this point, an adult guardianship may be needed if the individual cannot care for themselves.

Guardianships for a person entail responsibility for caring for the wellbeing of the individual. The guardian has the authority to handle educational, healthcare, and religious upbringing affairs with the same legal rights as a parent.

It is important to note that guardianships do not take away parental rights. Courts will defer to parents when they feel it is in the best interest of the child.

Guardianships can also apply only to the estate of a child. This type of guardianship applies most frequently when a minor receives are a large sum of money through inheritance or personal injury settlement. The court will order that money be held in a guardianship account, and the guardian will have the legal authority to disburse funds in the interest of the child.

It is wise to hold these funds in a restricted account, which requires a court order for disbursement. This process serves as a check-and-balance against the estate guardian and ensures the funds are used only for the minor.

In most circumstances, child guardianships end when the minor becomes an adult.

Adult Guardianships

Adult guardianships are used to support disabled or incapacitated adults. Like child guardianships, they can be for the person or their estate. Guardians are responsible for financial, educational, and healthcare decisions. For example, guardians may handle Federal & State Benefits on behalf of the ward.

Guardianships entail a court-ordered fiduciary duty. Guardians are held to a very high standard and are required to make bi-annual reports to the state. Being a guardian is a very rewarding experience, but not one to be taken lightly.

Other options

Guardianships are not always the best option. Courts will pursue the least intrusive remedy to help the individual. In some cases, a Healthcare Power of Attorney or General Durable Power of Attorney is a better solution than guardianship.

At Carmel Family Law, we have extensive experience with Power of Attorney, custody, and guardianship issues. Please reach out to us for a consultation on the best option for you and your family.

Pros and Cons of Guardianship in Indiana

A guardianship is a legal proceeding that appoints a person to take care of a minor or individual and/or manage that person's assets and affairs.

Guardianships in Indiana cover a multitude of people with various incapacities or disabilities. The incapacity may be due to age - as is the case with persons under 18. Additionally, it could be due to disability, temporary or permanent cognitive issues, and advanced age. Courts in Indiana are cautious in establishing guardianships because laws are written to protect people from limitations of their freedoms. Courts are wary in giving others the ability to make decisions affecting another individual. Guardianships can be temporary -up to 90 days - or permanent - until further court order. It is important to remember that guardianship is never truly permanent. A court can always remove guardianship if the individual regains the capacity to make their own decisions.

The selection of a guardian is critical. A guardian cannot have a felony conviction and must show that he/she is the best-suited person to serve. The wishes of the parents are an important consideration in cases involving minors. For example, in their Last Will and Testament, parents may nominate the guardian they choose in the event of their deaths. For an incapacitated adult, the parents are often appointed guardians with a successor - such as a sibling. In the event of incapacity due to age or illness, the court will want to see a spouse, child, or other relative petition for guardianship.

Guardians must be trustworthy and able to make decisions based on the incapacitated person's best interests. They must act in the best interest of the incapacitated person. Guardians also have a fiduciary duty to the incapacitated person. For example, parents who become guardians of their incapacitated adult child carry a fiduciary duty. They are no longer just caring for their child as parents; they are legal fiduciaries. As a fiduciary, the guardian has a legal obligation to provide care and support. If care and support are not appropriate, they answer to an Indiana court.

There are alternatives to guardianship; two common alternatives are the General Durable Power of Attorney and/or Healthcare Power of Attorney. These much less restrictive measures allow the individual to continue to make decisions as long as he/she can do so. Decisions regarding guardianship can be made while an individual is able to, and then allows the attorney-in-fact to act on the individual's behalf or, if necessary, request an appointment as guardian.

There are several considerations regarding guardianship that require careful thought. As an Indiana Attorney focused on family law matters, I am happy to talk through these considerations and help you with guardianship and/or powers of attorney. Please contact me for more information.

How to Prepare for the Probate Process in the Indiana Court System

I do not know of anyone who has said to me, "2020 was a great year!" In the case of my husband and me, it was a truly awful year. We lost his mother somewhat suddenly after a short illness, and we lost my dad a few months later.

My mother-in-law, Ruth, was an Indiana middle school math teacher for more than four decades. Additionally, she was instrumental in negotiating teacher contracts in her district. To say my mother was organized is an understatement. She was meticulous – and my husband and I are very thankful.

A few years ago, my father-in-law passed suddenly. From then on, every time we saw Ruth, she would remind us that she kept track of all of her business. The information was safely stowed in a "green folder in the top drawer of the filing cabinet." When we went to her home shortly after her deal, we found the green folder exactly where she indicated. Not only was the green folder in its rightful place, but it contained all the information we needed. It referenced other information locations, such as the purple folder on the secretary, files in the cabinet, and documents in the safe.

Ruth saved us a lot of time and headaches by planning, keeping good records, and updating information and documentation as necessary. Her assets, income, house information, insurance, retirement accounts, etc., were all carefully spelled out in her neat, teacher handwriting. She left no questions. Despite being in excellent health, she planned for the inevitable and did so in a manner specific to Indiana's probate laws. She made our job, and the court's, very easy.

My husband and I have taken a page from Ruth's green folder, so to speak. We maintain files of information. We have met with our son, who will be the Personal Representative of our estates. He needs to know the steps to take. I do not pretend that we are as organized as Ruth. I hope that we are organized enough that our son does not have to search high and low for documentation. We don't want the possibility of him missing an asset, debt, or insurance policy.

The first step to prepare your estate is to have a Last Will and Testament prepared by an attorney familiar with Indiana statutes. The next step is to keep records and write down information - especially for the Personal Representative. The final step is to relax and enjoy life! With these simple steps in place - you can rest easy. You'll be assured that the wishes at your death are followed and that your Personal Representative has all of the information needed to culminate your assets, pay debt, and distribute your estate.

I would love to help you with this process. You may contact me at (317) 815-0340 or at jmattingly@carmelfamilylaw.com.

Three Benefits of Divorce Mediation (Versus Litigation)

Over the years, we have found that many clients are hesitant to enter mediation. When most people think of divorce, they think of long processes involving layers of lawyers, judges, and court dates. As a certified mediator, I try to steer my clients toward mediation whenever possible.

Litigation is a viable solution to complete a marriage dissolution, but in many cases, it is not the best option. Mediation has many benefits to both parties: 

1. It is generally less expensive.

2. It gives both parties more input on the decision.

3. It is proven to lead to longer-lasting outcomes.

Cost

In many cases, mediation is a much cheaper option than litigation. There are a variety of reasons for this. Generally, mediation occurs over a few short sessions - negating the expenses of filing multiple court documents and appearing time after time.

Around Carmel, we have an excellent group of mediators to choose from. Mediators are generally attorneys who have practiced family law for years. They understand the law, our local judges, and the court system. This experience helps them create fair and equitable outcomes.

Mediation can happen with attorneys present, or it can be done directly between the clients. Mediation without attorneys is called pro-se mediation. In this circumstance, the mediator guides both parties through the process and helps prepare court documents. In most cases, the entire mediation is completed in a single day. This keeps the cost low, and the parties split the total fee.

Equity

We have a great group of judges around Carmel in Hamilton and Marion Counties. They are thoughtful, insightful practitioners who work hard to find the right balance in every case.

However, when we litigate a divorce, we are leaving the ultimate decision in the judge's hands. Very seldom does one party "win" and the other "lose." Instead, both parties are likely to be disappointed because the judge does not consider the emotions and nuance of each division of assets, parenting time, or child support.  

You will likely have points that you are willing to negotiate, and others that are deal-breakers. The judge will not consider this, but a mediator will work with both parties and consider these factors.

Long-Lasting Outcomes

We've established that mediation is a more collaborative and thoughtful way to work through a divorce. It gives both parties more input on the proceeding, and it allows for supervised negotiation from a qualified attorney. This process leaves both parties feeling as though the outcome was equitable. Recent studies show that mediation leads to better, long-lasting results, particularly for parents.

What is Mediation?

What is Mediation?

Many clients are hesitant to choose mediation over litigation. In Carmel and around central Indiana, mediating your separation, dissolution, child custody or child support case can be a better option because it allows you input in the process and can be a cheaper option.

When you choose to present your case to a judge, it involves each party making their case and leaving the decision up to the judge. In the vast majority of cases, there is no clear “winner”
and “loser” in this scenario. The judge will consider all of the arguments, and return with a decision somewhere in the middle.

You have little input on the decision-making process. Some points may be very important to you, while others might be easy to compromise on. The judge gives this no consideration. Why leave these decisions to a third party?

A mediator is a neutral third party who helps to resolve all issues, but will not make any decisions or force a compromise. A mediator collaboratively with both sides. The mediator is usually an experienced attorney who understands how the courts view your case and the decisions a judge would make. Mediation can be done with lawyers representing both sides, or it can be done Pro Se, where each client represents himself/herself. In either case, mediation is a more collaborative process that, in most cases, leads to better results and longer-lasting parenting time orders.

A mediator can be a very cost-effective option. Many lawyers in central Indiana offer mediation services and the prices have dropped significantly over the last several years. We have excellent mediators in our area who will work hard to find a fair compromise for both parties.

If you have a family law case and are considering litigation, take a moment to discuss mediation with your attorney and the other parties involved.It isn’t for every case, but in many cases it can lead to lower costs and better outcomes for all parties.