Temporary guardianships are frowned upon by the law. Or at least they are supposed to be. Temporary guardianships are designed to address true emergency situations.
Most times, temporary guardianships are stopgap measures to put in place necessary powers before a hearing on a permanent guardianship. (Yes, sometimes a temporary guardianship is all that is needed because the incapacity of the ward is itself temporary, but most of the time, no.)
Indiana Code section 29-3-3-4 is the temporary guardianship statute.
It being designed as an emergency measure, the code section requires that the court order specify the powers being granted:
"(d) A temporary guardian appointed under this section has only the responsibilities and powers that are ordered by the court. The court shall order only the powers that are necessary to prevent immediate and substantial injury or loss to the person or property of the alleged incapacitated person or minor in an appointment made under this section."
I.C. 29-3-3-4(d) (emphasis added).
Yet, courts will too often grant the temporary guardian plenary powers -- i.e., full powers of a guardian under the guardianship code. This is a no-no. So why do they do it? The petitioner's attorney is usually the one to prepare the order for the judge to sign in the first place. Maybe the attorney finds it too hard to specificy the powers, or maybe since they represent the petitioner they think they should try and get all the powers they can? Who knows.
But judges, let's not ignore this statute just because the petitioner's attorney chooses to when they draft the prepared order, OK? Let's remember that appointing a guardian not only bestows powers on the guardian, but it takes away rights from the ward. And in temporary guardianship proceedings this can happen oftentimes without even respecting basic Constitutional due process rights.
As a parent of a special needs teenager, you may be worried about what may happen when your child turns 18. Up until that important birthday, parents have complete authority over their child's finances and can participate in health care decisions. After age 18, however, a child is transformed into an "adult" under the law and a parent can no longer exercise control over a child's finances or property.
For parents of a special needs teenager, the 18th birthday may be a bit scary. For example, if your child has Autism he or she may be fully capable of handling their own money, but the child may also be very trusting of strangers and may be susceptible to undue influence. In Indiana, a parent may file a petition for guardianship over their special needs child. A guardianship allows the parent to continue to exercise care and control over the teenager's finances, property, and to participate in health care decisions even after the child turns 18.
Obtaining a guardianship involves the following steps:
A physician's report tells the Court your child's diagnosis and why a guardianship is necessary to protect the child. The petition attaches the physician's report and asks the Court to appoint one or two individuals, usually the parents, as the child's guardian. At the hearing, the child and potential guardians will be asked to testify. This process is informal and friendly. If the petition is granted, then the guardians will receive letters of guardianship and will take an oath. The guardian then has the power to maintain and care for the child's finances and property. The guardian is required to file an inventory of the protected person's assets within ninety days and is required to submit an accounting within one year, and then two years thereafter.
The guardianship can be permanent or temporary. For example, if your child has developmental delays and requires a few years to mature enough to handle his or her own finances, the guardianship can be terminated. The guardianship can also last indefinitely if the child will need a guardian for his or her lifetime.
If you have questions about obtaining a guardianship over your special needs teen or about guardianships in general, contact Ken or Sara.
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