CHAPTER 5. PROCEEDINGS FOR APPOINTMENT OF GUARDIAN OR TO PROCURE A PROTECTIVE ORDER
IC 29-3-5
Chapter 5. Proceedings for Appointment of Guardian or to
Procure a Protective Order
IC 29-3-5-1
Petitions for appointment of a guardian or to have a protective
order issued; requirements; notice and hearing; conduct of hearing
Sec. 1. (a) Any person may file a petition for the appointment of
a person to serve as guardian for an incapacitated person or minor
under this chapter or to have a protective order issued under
IC 29-3-4. The petition must state the following:
(1) The name, age, residence, and post office address of the
alleged incapacitated person or minor for whom the guardian is
sought to be appointed or the protective order issued.
(2) The nature of the incapacity.
(3) The approximate value and description of the property of
the incapacitated person or minor, including any compensation,
pension, insurance, or allowance to which the incapacitated
person or minor may be entitled.
(4) If a limited guardianship is sought, the particular limitations
requested.
(5) Whether a protective order has been issued or a guardian has
been appointed or is acting for the incapacitated person or
minor in any state.
(6) The residence and post office address of the proposed
guardian or person to carry out the protective order and the
relationship to the alleged incapacitated person of:
(A) the proposed guardian; or
(B) the person proposed to carry out the protective order.
(7) The names and addresses, as far as known or as can
reasonably be ascertained, of the persons most closely related
by blood or marriage to the person for whom the guardian is
sought to be appointed or the protective order is issued.
(8) The name and address of the person or institution having the
care and custody of the person for whom the guardian is sought
to be appointed or the protective order is issued.
(9) The names and addresses of any other incapacitated persons
or minors for whom the proposed guardian or person to carry
out the protective order is acting if the proposed guardian or
person is an individual.
(10) The reasons the appointment of a guardian or issuance of
a protective order is sought and the interest of the petitioner in
the appointment or issuance.
(11) The name and business address of the attorney who is to
represent the guardian or person to carry out the protective
order.
(b) Notice of a petition under this section for the appointment of
a guardian or the issuance of a protective order and the hearing on
the petition shall be given under IC 29-3-6.
(c) After the filing of a petition, the court shall set a date for
hearing on the issues raised by the petition. Unless an alleged
incapacitated person is already represented by counsel, the court may
appoint an attorney to represent the incapacitated person.
(d) A person alleged to be an incapacitated person must be present
at the hearing on the issues raised by the petition and any response
to the petition unless the court determines by evidence that:
(1) it is impossible or impractical for the alleged incapacitated
person to be present due to the alleged incapacitated person's
disappearance, absence from the state, or similar circumstance;
(2) it is not in the alleged incapacitated person's best interest to
be present because of a threat to the health or safety of the
alleged incapacitated person as determined by the court;
(3) the incapacitated person has knowingly and voluntarily
consented to the appointment of a guardian or the issuance of
a protective order and at the time of such consent the
incapacitated person was not incapacitated as a result of a
mental condition that would prevent that person from
knowingly and voluntarily consenting; or
(4) the incapacitated person has knowingly and voluntarily
waived notice of the hearing and at the time of such waiver the
incapacitated person was not incapacitated as a result of a
mental condition that would prevent that person from making
a knowing and voluntary waiver of notice.
(e) A person alleged to be an incapacitated person may present
evidence and cross-examine witnesses at the hearing. The issues
raised by the petition and any response to the petition shall be
determined by a jury if a jury is requested no later than seventy-two
(72) hours prior to the original date and time set for the hearing on
the petition. However, in no event may a request for a jury trial be
made after thirty (30) days have passed following the service of
notice of a petition.
(f) Any person may apply for permission to participate in the
proceeding, and the court may grant the request with or without
hearing upon determining that the best interest of the alleged
incapacitated person or minor will be served by permitting the
applicant's participation. The court may attach appropriate conditions
to the permission to participate.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.68; P.L.6-2010, SEC.10.
IC 29-3-5-2
Appointment of guardian before adjudication of incapacity or
minority
Sec. 2. A guardian may not be appointed for an incapacitated
person or a minor under this chapter until the incapacity or minority
has been adjudicated.
As added by P.L.169-1988, SEC.1. Amended by P.L.264-1989,
SEC.6.
IC 29-3-5-3
Findings; appointment of guardian; limited guardianship;
protective orders
Sec. 3. (a) Except under subsection (c), if it is alleged and the
court finds that:
(1) the individual for whom the guardian is sought is an
incapacitated person or a minor; and
(2) the appointment of a guardian is necessary as a means of
providing care and supervision of the physical person or
property of the incapacitated person or minor;
the court shall appoint a guardian under this chapter.
(b) 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.
(c) If the court finds that it is 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.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.69.
IC 29-3-5-4
Considerations for appointment of guardian
Sec. 4. 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 contained in a will or other written instrument.
(3) Any request made by a minor who is at least fourteen (14)
years of age.
(4) Any request made by the spouse of the alleged incapacitated
person.
(5) The relationship of the proposed guardian to the individual
for whom guardianship is sought.
(6) Any person acting for the incapacitated person under a
durable power of attorney.
(7) The best interest of the incapacitated person or minor and
the property of the incapacitated person or minor.
As added by P.L.169-1988, SEC.1. Amended by P.L.264-1989,
SEC.7; P.L.149-1991, SEC.3.
IC 29-3-5-5
Consideration for appointment of guardian; order of
consideration; priorities
Sec. 5. (a) The following are entitled to consideration for
appointment as a guardian under section 4 of this chapter in the order
listed:
(1) A person designated in a durable power of attorney.
(2) The spouse of an incapacitated person.
(3) An adult child of an incapacitated person.
(4) 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.
(5) Any person related to an incapacitated person by blood or
marriage with whom the incapacitated person has resided for
more than six (6) months before the filing of the petition.
(6) 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.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.70.
IC 29-3-5-6
Two or more minors or incapacitated persons; petition for
appointment of guardian; separate accounting
Sec. 6. When a petition is filed for the appointment of a guardian
for two (2) or more minors or incapacitated persons who are children
of a common parent, parent and child, or husband and wife, a
separate petition need not be filed for each minor or incapacitated
person, and appointment of a guardian for all may be considered in
one (1) proceeding. A separate accounting is required for each minor
or incapacitated person, but an actual segregation of assets is not
required except as required by the court.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.71.