Temporary Guardianships & the Specificity of Powers

by | Jul 17, 2014 | Guardianships | 0 comments

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.



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