![]() ![]() ![]() I think it’s fair to assume that most of the ethical complaints giving rise to the advisory opinion, at least as they relate to adult guardianships, stem from the fact that too often the temporary guardian powers are not confined to the emergency. 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. (d) A temporary guardian appointed under this section has only the responsibilities and powers that are ordered by the court. The worse habit of attorney practitioners in my mind is the practice of seeking a temporary guardianship with plenary powers, which is contrary to the specific language of the temporary guardianship statute: Plenary Powers in Temporary Guardianships What!? If your client doesn’t get a temporary guardianship before the beginning of the following month so their temporary guardian can duly marshal and spend down assets for the alleged incapacitated person to qualify for Medicaid benefits, thereby needlessly incurring thousands of dollars in nursing home costs that would otherwise be covered by Medicaid and that’s not an emergency? From a practical standpoint, this does not make sense. Although it is important for children to have access to health care and education, neither a lack of insurance coverage nor an inability to be enrolled in school are emergencies which would – or should – override the custodial parents’ rights to be heard.Ĭommission on Judicial Qualification, Advisory Opinion 1-15 Several of the more recent complaints before the Commission involve petitions in which the alleged emergency is merely the acting guardian’s inability to obtain health insurance or Medicaid benefits for a child without a guardianship order, or the guardian’s inability to enroll a child in school. However, it’s unnerving to consider what the Commission opines, as an example, is not an emergency: ![]() The guardianship code itself defines an emergency in language similar to Trial Rule 65(B): “immediate and irreparable injury to the person or injury, loss, or damage to the property of the alleged incapacitated person or minor may result before the alleged incapacitated person or minor can be heard in response to the petition.” I.C. Code § 29-3-3-4(a)(2) is within the discretion of the Court. It remains clear that whether the facts support an “emergency” under Ind. This is the chief substantive problem we are all faced with as practitioners in light of the Commission’s advisory opinion. In practice, this means that, at least in Marion County, every temporary guardianship petition is set for hearing, usually within 5-7 days.Ī few questions remain: what is an emergency, what about the guardian ad litem, and what type of notice must be give before the temporary guardianship hearing? What is an emergency? This Opinion reminded judges that they must follow Indiana Rule of Trial Procedure 65(B) when granting ex parte petitions for temporary guardianships, otherwise they may be in violation of the Code of Judicial Conduct. This practice changed in 2015 when the Commission on Judicial Qualifications issued Advisory Opinion 1-15. ![]() Historically, it was very easy to obtain a temporary guardianship in Indiana: a practitioner walked into the judge’s chambers and walked out with a temporary guardianship order. Notice and hearing can only be avoided if there is a threat of immediate and irreparable injury. In other words, a temporary guardianship can only be issued if there is an emergency, after notice and hearing, and the order should specifically detail the powers of the temporary guardian. Further, the statute dictates that “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.” Ind. Temporary guardianships may only be granted after notice and hearing “unless it is alleged and found by the court that immediate and irreparable injury” may result before such a hearing can be held. Indiana Code section 29-3-3-4 is the temporary guardianship statute. It states, in essence, that a temporary guardianship can be granted if (1) an emergency exists (2) the welfare of the incapacitated person or minor requires immediate action and (3) no other person appears to have authority to act in the circumstances. Let’s take a look at the law surrounding temporary guardianships to gain a better understanding of when and how they should be used. Temporary guardianships are designed to address true emergency situations. ![]()
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