Indiana Law Review


Indiana's New Guardianship Code: A New Emphasis on
Alternative Forms of Protection

David M. Berry*

I. Introduction

One of the most significant considerations that precipitated the
wholesale amendment of Indiana's guardianship statutes with the en-
actment of Indiana's New Guardianship Code (the "NGC")' was the
concern of many groups, especially senior citizen groups, that it was
too easy to place a person under the protection of a guardianship. ^ Yet,

it was also recognized that, in many cases, even though a guardianship
may have been too easily established, the protected person^ was in need
of some form of assistance/ To provide assistance to individuals in
situations where a full guardianship proceeding is unnecessary, the NGC
provides various alternative proceedings in lieu of a guardianship.^ In

addition, the NGC does not affect and still permits other traditional
statutory alternatives to a guardianship.^

This Article first offers a discussion of some of the alternative

proceedings and approaches to a guardianship and their potential ap-

plication to individuals in need of a level of assistance somewhat less

than a full guardianship. Then, some of the NGC's more significant
provision concerning guardianships will be examined. This discussion

will include: the creation of a guardianship by the appointment of a

* Associate, Lowe Gray Steele & Hoffman, Indianapolis. B.A., University of
Denver, 1981; J.D., Indiana University School of Law—Indianapolis, 1988. [As this Article
was going to print, certain amendments to the New Guardianship Code were being
considered by the Indiana General Assembly. The reader should be aware of the fact that

some of the code sections cited in this Article may have been amended by the Legislature.

—

Ed.]

1. IND. Code §§ 29-3-1-1 to -13-3 (1988).
2. Gates, Background: A History of the Development of House Bill 1113, ICLEF

Guardianship Seminar 1-2 (1988); Gordon, Small Estates, Parental Powers and Temporary

Guardians, ICLEF Guardianship Seminar III-l (1988).
3. Under the NGC, the term "protected person" replaces the word "ward" under

prior Indiana law. Ind. Code § 29-3-1-13 (1988) defines "protected person" as "an
individual for whom a guardian has been appointed or with respect to whom a protective
order has been issued."

4. Gordon, supra note 2, at III-l.

5. See Ind. Code § 29-3-3-1 to -5 (1988).
6. Emison, Alternatives to Guardianship, ICLEF Guardianship Seminar X-8

(1988).

335



336 INDIANA LAW REVIEW [Vol. 22:335

guardian; the powers and duties of a guardian; the removal of a guardian;

the termination of a guardianship; and foreign guardianships. This Article

will not attempt to analyze every important new provision of the NGC
and, as such, the practitioner is well advised to review the new Act in

its entirety to represent clients most effectively.

II. Alternatives to Guardianships

A. Facility of Payment

1. Minors.—The NGC permits a person who is either indebted to
a minor^ or who possesses property belonging to a minor in an amount
not exceeding $3,500 to pay the debt or deliver the property to certain

persons without the appointment of a fiduciary, the giving of a bond

or court order. ^ These NGC facility of payment provisions recognize
that, in many situations, a minor needs financial assistance^ even though
the dollar amount of the transaction might be small. These provisions

are designed to ehminate the "expense and complexity" of guardianship

proceedings, '° as well as to provide "some sense of security for the

transferor."" In addition, safeguards concerning the use of the property

for the benefit of the minor'^ exist under the NGC's duties of care
imposed upon the recipient.

The NGC provides that property with value not exceeding $3,500
may be paid to certain individuals without the need for any protective
proceedings.^^ The NGC differs from the Uniform Guardianship and
Protective Proceedings Act'"^ (the "Uniform Act") because the Uniform

Act provides a higher ceiling of $5,000 per year^^ relating to these facility

of payment provisions. The NGC seemingly retains the lower $3,500
amount from prior Indiana law concerning the small estates of minors. ^^

Yet, the NGC differs from prior Indiana law on this matter because
the $3,500 threshold in the prior law related to "the whole estate of a

7. IND. Code § 29-3-1-10 (1988) defines the term "minor" as "an individual who
is less than eighteen (18) years of age."

8. iND. Code § 29-3-3-1 (1988).
9. Gordon, supra note 2, at III-l.

10. Id. at II1-2; See also Unif. Guardianship and Protective Proceedings Act

§ 1-106 comment, 8A U.L.A. 445 (1983) which states, "Where a minor has only a small
amount of property, it would be wasteful to require protective proceedings to deal with

the property."

11. Gordon, supra note 2, at III-2.

12. Id.

13. iND. Code § 29-3-3-l(a) (1988).
14. Unif. Guardianship and Protective Proceedings Act, 8A U.L.A. 440 (1983).
15. Id. § 1-106, 8A U.L.A. 444.
16. See iND. Code § 29-1-18-50 (repealed effective July 1, 1989).



1988] NEW GUARDIANSHIP CODE 337

minor . . . after payment of reasonable medical expenses, hospital bills,

attorney's fees and other expenses incidental to the collection of any

claim due the minor. "'^ In contrast, the NGC's $3,500 threshold relates
to any debt or property belonging to a minor, '^ and not to the minor's

entire estate. In this context, the NGC has adopted the transactional
approach of the Uniform Act which makes it possible for other persons

to handle the less comphcated property affairs of a minor. '^ While prior

Indiana law was couched in terms such as "whole estate, "^^ some

commentators believed that the $3,500 limit under prior Indiana law

related not to the size of the minor's estate, but rather the size of the

indebtedness to the minor.^^ Thus, the difference between the NGC and
prior Indiana law might not be as significant as it first seems.

For the payment of amounts not exceeding $3,500, these NGC facility
of payment provisions are permissive; not mandatory.^ Accordingly,

there may be situations in which the establishment of a full guardianship
or some other form of protective proceeding might be beneficial, even

for such small amounts.^^ Conversely, for payment of amounts that

exceed $3,500, these NGC facility of payment provisions do not apply
and some form of court authorization for the transfer should be ob-

tained.^"*

Under the NGC, the person authorized to receive the payment of
debt or delivery of property is *'any person having the care and custody

17. Id. These provisions recognize that a minor might not have assets of great

value because he has not accumulated assets due to his age. While he might be in need

of assistance concerning his financial affairs, a full guardianship or other protective

proceedings would be too costly relative to the size of the minor's estate. See Gordon,

supra note 2, at III-l.

18. IND. Code § 29-3-3-l(a) (1988).
19. Unef. Guardianship and Protective Proceedings Act § 1-106 comment, 8

A

U.L.A. 445 (1983).

20. See Ind. Code § 29-1-18-50 (repealed effective July 1, 1989).
21. Shivey, Guardianships {preface to Ind. Code Ann. § 29-1-18) (West 1979)

(The settlement of a claim of a minor by the minor's parents and an insurance company
when the claim does not exceed $3,500 after the payment of reasonable medical expenses,

attorney fees and other collection costs does not require a guardianship.).

22. Ind. Code § 29-3-3-1 (1988) (The transferor may pay the debt or deliver the
property without the appointment of a fiduciary, giving of bond, or other court order

to other persons.).

23. One example would be protecting the minor's assets from the creditors of the
transferee. Arguably, even though Ind. Code § 29-3-3- 1(b) (1988) provides that the person
receiving the property has the duty to apply the property to support, use, and benefit of

the minor, the property will not be held in the minor's name, but rather the transferee's

name and thus the property could be subject to the transferee's creditors.
24. See Unif. Guardianship and Protective Proceedings Act § 1-106 comment,

8A U.L.A. 445 (1983) ("Protective proceedings, including the possible establishment of
a [guardianship], should be sought where substantial property is involved.").



338 INDIANA LAW REVIEW [Vol. 22:335

of the minor with whom the minor resides' *^^ or a "guardian of the
minor. "^^ In contrast, in addition to these recipients, the Uniform Act

also permits payment to the minor if eighteen or more years of age or

married^^ or to "a financial institution incident to a deposit in a state

or federally insured savings account or certificate in the sole name of
the minor with notice of the deposit to the minor. "^^ These differences

are not significant, especially when considering that the NGC definition
of ''minor" is "an individual who is less than eighteen years of age."^^
Thus, under the NGC, by definition, a minor cannot be eighteen or
more years of age.

A person who, in good faith, pays or delivers property in accordance
with the NGC's facility of payment provisions is not responsible for the
proper application of that property.^^ Once the proper recipient has

received the payment of debt or delivery of property, such recipient has

a duty "to apply the property to the support, use and benefit of the

minor.' '^^ This provision is more liberal than prior Indiana law which

required court approval for any application of the property. ^^ Yet, this

provision might be too liberal because the terms "use" and "benefit"

grant the recipient extremely broad discretion in the application of such

funds^^ and are not extremely useful terms in creating a standard of

care for the recipient. In addition, the NGC's standard of care fails to
provide the duty to preserve and maintain the minor's assets and the

25. IND. Code § 29-3-3-l(a)(l) (1988).
26. Id. § 29-3-3- 1(a)(2).

27. Unif. Guardianship and Protective Proceedings Act § l-106(a)(l), 8A
U.L.A. 444 (1983).

28. Id. § l-106(a)(4), 8A U.L.A. 444.
29. Ind. Code § 29-3-1-10 (1988); see also text accompanying note 7.
30. Ind. Code § 29-3-3- 1(c) (1988). One suggested approach that a transferor may

use to ensure protection under this facility of payment provision is to obtain a receipt

in affidavit form. See Gordon, supra note 2, at 1 1 1-5 - III-6.

31. Ind. Code § 29-3-3-l(b) (1988).
32. Ind. Code § 29-l-18-50(a) (1979) provided, "The person receiving such money

or other assets shall hold and dispose of the same in such manner as the court shall

direct."

33. The Uniform Act specifically rejects such a broad standard and requires that

the funds be used for the "support and education" of the minor. See Unif. Guardianship

and Protective Proceedings Act § l-106(c), 8A U.L.A. 444-45 (1983). In addition,
Unif. Guardianship and Protective Proceedings Act § 1-106 comment, 8A U.L.A.
445 (1983) provides:

This section does not go as far as many facility of payment provisions found
in trust instruments, which usually permit application of sums due a minor

beneficiary to any expense or charge for the minor. It was felt that a grant of

so large an area of discretion to any category of persons who might owe funds
to a minor would be unwise.



1988] NEW GUARDIANSHIP CODE 339

duty to turn the remaining assets over to the minor upon attaining

majority. ^"^

A transferor may not avail himself to the NGC's facility of payment
procedures if the transferor "knows that a guardian has been appointed

for the minor or that proceedings for appointment of a guardian for

a minor are pending. "^^ In these situations, because court proceedings

are currently in process, the primary purpose of the NGC's facility of
payment procedures (i.e., to avoid a full guardianship or other court

proceedings) is not applicable. Accordingly, the transfer of assets should

be made in conjunction with the pending proceedings.^^ Yet, this lim-

itation seemingly contradicts the NGC's provision which enables a trans-
feror to pay debt or deliver property to a guardian of the minor, ^^ and

the provisions which enable a guardian to receive property payable to

the minor^^ or protected person. ^^ This apparent contradiction is probably

the result of the Uniform Act's distinction between a guardian and

conservator,'*^ which historically has not been followed in Indiana."^^ The

Uniform Act's comparable provision prohibits the use of the facility of

payment procedures for the transfer of a minor's assets if the transferor

knows that a conservator has been appointed for the minor or that

proceedings for appointment of a conservator are pending."^^ Yet, the

Uniform Act permits the application of the facility of payment procedures

34. Contra, Unif. GuARDiANsmp and Protective Proceedings Act § 1 -106(c),
8A U.L.A. 444-45 (1983) which provides, "Any excess sums must be preserved for future
support and education of the minor and any balance not so used and any property received

for the minor must be turned over to the minor when majority is attained."

35. IND. Code § 29-3-3-l(c) (1988).
36. Gordon, supra note 2, at III-5.

37. See Ind. Code § 29-3-3- 1(a)(2) (1988); see also Gordon, supra note 2, at III-
5 (suggesting that due to this contradiction, "there appears to be no need for the [NGC]

to allow transfers of small amounts to a guardian of the minor as provided in I.C. §
29-3-3-1 (a)(2)").

38. See Ind. Code § 29-3-8-2(a)(l) (1988).
39. See Ind. Code § 29-3-8-4(1) (1988). See supra note 3 (noting that a "protected

person" is defined in Ind. Code § 29-3-1-13 (1988) as "an individual for whom a guardian
has been appointed or with respect to whom a protective order has been issued"). As
such, a minor may also be a protected person.

40. Under the Uniform Act, guardianship proceedings affecting minors are described

in Article II, Part 1, while a conservator comes into existence incident to the protective

proceedings as described in Article II, Part 3.

41. See Shivey, supra note 21, which states that the term "conservator" may be
used interchangeably with the term "guardian." See also Ind. Code § 29-3-1-6 (1988)
which defines "guardian" as "a person who is a fiduciary and is appointed by a court
to be a guardian or conservator responsible as the court may direct for the person or
the property of a disabled person or a minor." Id. (emphasis added).

42. Unef. Guardianship and Protective Proceedings Act § 1-1 06(b), 8A U.L.A.
444 (1983).



340 INDIANA LAW REVIEW [Vol. 22:335

in spite of a transferor's knowledge that a guardian of the minor has

been appointed or may be appointed as a result of a pending proceeding. "^^

Under the Uniform Act, a guardian's powers do not include the authority

to compel payment of money due to the minor, but include authority
to receive payments made under the protection of the Uniform Act's
facility of payment provisions."^ In contrast, under the Uniform Act, a

conservator has title to all assets of the minor's estate, except as otherwise

provided in the case of a limited conservator."^^ Because the appointment

of a conservator under the Uniform Act is a serious matter affecting

the title to the minor's assets, this limitation to the Uniform Act's facility

of payment provisions was created. "^^ Unlike the Uniform Act, the NGC
does not provide for the title of the minor's assets to be transferred to

a conservator or guardian.^^ Thus, the rationale for such a limitation

on the facility of payment provisions does not exist under the NGC.
In sum, this limitation should be rendered to have no effect because

the NGC provides that a transferor may pay debts or dehver property
to a guardian of a minor without a court order, '^^ and that a guardian

has the power to receive such property which is payable to the minor. "^^

2. Disabled Persons.^^—Unlike the Uniform Act, the NGC contains
facility of payment provisions for disabled persons when the entire

43. Id. § 1-106 comment, 8A U.L.A. 445.
44. Id. § 2-109, 8A U.L.A. 467.
45. Id. § 2-319, 8A U.L.A. 503.
46. Id. § 1-106 comment, 8A U.L.A. 445.
47. See supra note 38 and accompanying text.

48. See supra note 35 and accompanying text.

49. See supra note 37 and accompanying text.

50. Ind. Code § 29-3-1-4 (1988) defines "disabled person" as an individual who:

(1) cannot be located upon reasonable inquiry;

(2) is unable:

(A) to manage in whole or in part the individual's property;

(B) to provide self-care; or

(C) both;

because of insanity, mental illness, mental deficiency, physical illness, infinity,

habitual drunkenness, excessive use of drugs, incarceration, confinement, de-

tention, duress, fraud, undue influence of others on the individual, or other

disability; or

(3) has a developmental disability, the severity and chronicity of which:

(A) is attributable to a mental impairment or physical impairment, or both;

(B) is manifested before the person is twenty-two (22) years of age;

(C) is likely to continue indefinitely;

(D) results in substantial functional limitations in at least three (3) of the

following:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;



1988] NEW GUARDIANSHIP CODE 341

property of the disabled person does not exceed $3,500.^' These provisions

are essentially the same as prior Indiana law" with the exception that

the NGC's term "entire property" replaces the term "whole estate,"
because the term "property" more correctly describes the facility of

payment for disabled persons than does the term "estate.""

B. Parental Powers

Under prior Indiana law, the parents of a minor were jointly deemed

to be the natural guardians of the minor; except as otherwise determined

in a divorce or other proceeding. In addition, a parent could not be

the natural guardian if the parent was incompetent or if the child was

married. ^"^ The parents, as natural guardians, were given the powers and

subject to the limitations imposed upon guardians under prior Indiana

law without the need for any court proceeding. ^^ The NGC retains the
same listing of situations where parental powers are limited as existed

under prior Indiana law.^^ Yet, the NGC differs from prior law because
the NGC does not grant the parents the general powers of guardians
and related limitations. ^"^ Instead, the NGC provides that parents have
two specified powers: the right to custody of the person of a minor

and the power to execute certain documents.^^ Yet, the NGC does not
specifically define the rights relating to the custody of the person of a

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency; and

(E) reflects the person's need for a combination and sequence of special,

interdisciplinary, or generic care, treatment, or other services that are of lifelong

or extended duration and are individually planned and coordinated.

51. iND. Code § 29-3-3-2 (1988).
52. See Lnd. Code § 29-l-18-59(b) (repealed effective July 1, 1989).
53. See Gordon, supra note 2, at 111-7, which states that the term "estate" in the

Probate Code, Ind. Code § 29-1-1-3 (1988), denotes the real and personal property of
a decedent or ward. Under the facility of payment provisions, there is no decedent and

there may not be a ward if full guardianship proceedings have not been implemented.
54. Ind. Code § 29-1-18-5 (repealed effective July 1, 1989).
55. Id. § 29-1-18-5.

56. Id. § 29-3-3-3 (1988) provides for parental powers: (1) "except as otherwise

determined in a dissolution of marriage proceeding or in some other proceeding authorized

by law, including a guardianship proceeding;" or (2) unless a minor is married; and (3)
if the parent is not a disabled person. It is important to note that dissolution decrees

should specifically state who has these powers; otherwise, both parents may be required
to perform the necessary action.

57. See supra note 53 and accompanying text.

58. Ind. Code § 29-3-3-3 (1988). This provision has no counterpart in the Uniform
Act.



342 INDIANA LAW REVIEW [Vol. 22:335

minor^^ or the term **custody." In addition, the NGC provides that
parents have the power to execute, on the behalf of the minor, a number
of specified documents including tax, probate and medical consents and

waivers.^^ Specifically, the NGC grants the parents of a minor the
authority to execute, on the minor's behalf, the agreement with the

Internal Revenue Service required under Internal Revenue Code Section
2032A^^ This agreement is necessary for an executor to make the election
to value certain classes of real estate used in connection with a farm

or a closely-held business at their **current" use rather than the usual

"highest," '*best" or *'most suitable" use for estate tax valuation pur-

poses. ^^ This election may reduce the size of a decedent's estate by
$500,000 and is primarily designed to prevent the potential problem that

a portion of the family farm or business might have to be sold to pay

estate taxes." In addition, parents may execute, on the minor's behalf,
the consent required by Internal Revenue Code Section 6324A(e) which
attaches a lien against certain property to secure payment of the taxes

deferred under Internal Revenue Code Section 6166.^ This provision of
the Internal Revenue Code provides for a fifteen-year installment payout
with a five-year deferral of estate taxes attributable to the inclusion in

the decedent's gross estate of certain qualifying farms or closely-held

businesses. ^^

Moreover, parents may, on the behalf of minors, sign the minor's

federal and state income tax returns.^^ With the advent of the "kiddie

tax,"^^ more minors under the age of fourteen will be required to file
income tax returns. Accordingly, this provision will be beneficial in the

preparation of the minors' income tax returns because parents may sign
for the minors. In addition, parents may execute, on the behalf of a
minor, "any other consents, waivers or powers of attorney provided for

under the Internal Revenue Code"^^ or provided for under any statute,

including the Indiana inheritance tax law, the Indiana gross income tax

law and the Indiana adjusted gross income tax law.^^

59. Gordon, supra note 2, at III-ll.

60. IND. Code § 29-3-3-3 (1988).
61. See Rev. Proc. 81-14, 1981-1 C.B. 669.

62. I.R.C. § 2032A (1986).
63. West's Federal Taxation: Corporations, Partnerships, Estates and Trusts

586 (1981).

64. Ind. Code § 29-3-3-3(2) (1988).
65. I.R.C. § 6166 (1986).

66. Ind. Code § 29-3-3-3(7) (1988).
67. I.R.C. § l(i) (1986).

68. Ind. Code § 29-3-3-3(3) (1988).
69. Id. § 29-3-3-3(5).



1988] NEW GUARDIANSHIP CODE 343

For probate purposes, parents are authorized to execute any waiver

of notice relating to proceedings under the Indiana Probate Code.^° In

addition, parents are specifically authorized to sign the consent to un-

supervised administration under the Indiana Probate Code^' in situations

where a minor is a beneficiary of the estate.

Under the NGC, parents are also authorized to consent to medical
or other professional care, treatment or advice for the minor's health

and welfare.''^ Yet, under certain circumstances, this parental power may
contradict the emancipated minor's right to consent to his own health
care needs under the Indiana Health Care Consent Law.^^

C. Temporary Guardianships

The NGC provision relating to the appointment of temporary
guardians'''* has no counterpart in the Uniform Act, but is similar to

prior Indiana law.^^ There are four prerequisites for the appointment

of an emergency temporary guardian: a guardian has not been ap-

pointed;^^ an emergency exists;^'' the welfare of the disabled person or

minor requires immediate action;^^ and no other person appears to have

authority to act in the circumstances.''^ These NGC prerequisites for the
appointment of an emergency temporary guardian are more specific than
under prior Indiana law which simply provided that the court need only

find that the welfare of an incompetent required the immediate ap-

pointment of a guardian of his person or of his estate.^^ For minors,

this NGC provision may apply only in those rare situations where parental
powers are Hmited,^^ because the minor's parents have the right to custody

of the person of a minor and the power to execute certain documents,

including in particular, a consent to medical treatment. ^^ At least ar-

guably, these powers possessed by a minor's parents would prevent the

70. Id. § 29-3-3-3(4). One suggested use of this power is for the parents to sign
the waiver of the notice of the hearing on petition to sell real property in the decedents

estate coupled with the parents' signing of the consent to the sale of such property. See

Gordon, supra note 2, at III-13.

71. IND. Code § 29-3-3-3(6) (1988).
72. Id. § 29-3-3-3(8).

73. Id. § 16-8-12-2.

74. Id. § 29-3-3-4.

75. See id. § 29-1-18-24 (repealed effective July 1, 1989).

76. Id. § 29-3-3-4(a)(l) (1988).

77. Id. § 29-3-3-4(a)(2).

78. Id. § 29-3-3-4(a)(3).

79. Id. § 29-3-3-4(a)(4).

80. Id. § 29-1-18-24 (repealed effective July 1, 1989).

81. See supra note 54 and accompanying text.

82. iND. Code § 29-3-3-3 (1988).



344 INDIANA LAW REVIEW [Vol. 22:335

appointment of an emergency temporary guardian because the parents

appear to have the authority to act in the circumstances.^^

While any person may file a petition for the appointment of an
emergency temporary guardian, the court, on its own motion, may also
appoint an emergency temporary guardian.*^ The court may specify the
period of appointment, not to exceed sixty days, for an emergency

temporary guardian.*^ Generally, no appointment can be made prior to
a hearing on the matter in which the NGC's notice requirements^^ have
been satisfied.*"^ Yet, the notice requirements may be waived if the court
finds that

*

'immediate and irreparable injury to the person, or injury,

loss or damage to the property of the alleged disabled person or minor
may result before the alleged disabled person or minor can be heard in
response to the petition."*^ To protect the alleged disabled person or
minor, the NGC provides that they may file a petition to terminate the
emergency temporary guardianship or to modify the court order in those

situations when notice was waived, in which the court must hear and
determine the petition *'at the earliest possible time."^^

In addition, "if the proceeding is for the appointment of a temporary

guardian of the person for an alleged disabled person or minor who is
in need of medical care," then venue for the proceeding is in the county

where the facility providing or attempting to provide medical care is

located. ^^ This provision is designed to provide flexibility in managing

emergency situations that involve health care needs.^^

A court may also appoint a replacement temporary guardian if the
court finds that a previously appointed guardian is not effectively per-

forming his fiduciary duties and that the welfare of the protected person

requires immediate action. In these situations, the court may suspend
the authority of the previously appointed guardian during the period of

time in which the replacement temporary guardian has authority to act.^^

83. An example in which this prerequisite might prevent the appointment of a
temporary guardian is in situations involving health care decisions if a person has the

authority to act under Indiana's Health Care Consent Law (Ind. Code § 16-8-12-1 to -

12) (1988)); see Gordon, supra note 2, at 111-17.

84. Ind. Code § 29-3-3-4<a) (1988).
85. Id.

86. See id, § 29-3-6-l(a)(2); see also infra notes 172-79 and accompanying text.

87. Ind. Code § 29-3-3-4(a) (1988).
88. Id.

89. Id.

90. Id. § 29-3-2-2(a)(l)(B). Otherwise, venue is in the county where the alleged

disabled person or minor resides. Id. § 29-3-2-2(a)(l)(A).

91. Wishard, Overview: Indiana's New Guardianship Code, ICLEF Guardianship
Seminar II-5 (1988).

92. Ind. Code § 29-3-3-4(b) (1988).



1988] NEW GUARDIANSHIP CODE 345

In this regard, the court has absolute discretion to determine the period

for which the replacement temporary guardian has authority to act and

is not limited to the sixty-day period relating to an emergency temporary

guardian. The notice requirements for a replacement temporary guardian

are the same as for an emergency temporary guardian. ^^

Similar to prior Indiana law,^'' the emergency and replacement tem-

porary guardians have only the responsibilities and powers that are

ordered by the court. ^^ While the temporary guardianship proceedings

are not subject to the NGC's provisions concerning protective order or
regular guardianship proceedings,^^ the temporary guardianship proceed-

ings may be joined with such other proceedings. ^"^ In this context, the
temporary guardianship provisions are useful in bridging the gap between

the time that a problem is recognized and the time in which a guardian

is appointed or a protecting order is issued. ^^

D. Protective Proceedings and Single Transactions

A protective proceedings is ''a proceeding for a protective order. "^^
Likewise, a court may treat a proceeding for the appointment of a
guardian as one for a protective order if the court finds that it is "not

in the best interest of the disabled person or minor" to appoint a

guardian. ^^ While prior Indiana law had no similar provisions concerning

93. Ind. Code § 29-3 -6- 1(a)(2) (1988) provides that if the petition is for the
appointment of a temporary guardian (which includes a replacement temporary guardian),

notice shall be given as required by Ind. Code § 29-3-3-4(a) which relates to emergency
temporary guardians,

94. Ind. Code § 29-1-18-24 (repealed effective July 1, 1989) provides, "The ap-
pointment may be to perform specific duties respecting specific property or to perform
particular acts, as stated in the order of appointment. The temporary guardian shall make
such reports as the court shall direct, and shall account to the court upon termination

of his authority."

95. Ind. Code § 29-3-3-4(c) (1988). Gordon, supra note 2, at III- 19 recommends:
For the emergency temporary guardian, the court should be asked to grant

all powers that may be necessary to deal with the existing emergency and any
other matter that might arise during the specified period of appointment which

would require action for the welfare of the disabled person or minor. For a

substitute temporary guardian, the request should be for all powers that the

previously appointed guardian had which might be necessary during the period

of the temporary guardianship fixed by the court.

96. Ind. Code § 29-3-3-4(d) (1988).
97. Id. § 29-3-3-4(e) (1988).

98. For example, a petition for the appointment of a replacement temporary

guardian may be joined with a petition for the appointment of a successor guardian under
Ind. Code § 29-3-12-4 (1988).

99. Ind. Code § 29-3-1-14 (1988).
100. Id. § 29-3-5-3(c).



346 INDIANA LAW REVIEW [Vol. 22:335

protective proceedings, '°^ the NGC's provisions are similar to those of
the Uniform Act.^^^

Any person may petition the court for the issuance of a protective
order. ^^^ The procedure to initiate a protective order involves the same

hearing and notice requirements involved with the procedure for re-

questing the appointment of a guardian. ^°^ The disabled person's or

minor's rights at the hearing concerning the issuance of a protective

order are the same as their rights at a hearing concerning the appointment

of a guardian. ^^^

In addition, except for minors, for a protective order to be issued

for the benefit of a person, the court must first determine that the

person is a disabled person. ^^ The court must also find that the disabled

person or minor '*owns property or has income requiring management

or protection that cannot otherwise be provided; . . . has or may have
financial affairs that may be jeopardized or impaired; or . . . has property
that needs to be managed to provide for the support or protection of

the disabled person" or minor and that "the protection sought is nec-

essary." '°'' In addition, while not required for minors, the court must

also find that the disabled person is unable to manage his property and

financial or business affairs effectively. ^^^

Upon making these findings, the court has extremely broad authority
to make the orders it considers proper and appropriate to protect the
person, business affairs and property of the disabled person or minor. ^°^

In addition, the court may also, without appointing a guardian, declare
the person to be a protected person"^ and authorize or ratify any single

transaction necessary and desirable to meet the needs of the protected

person. ^'^ The NGC provides a non-exhaustive Ust of protective ar-

101. Matthews, Protective Proceedings and Single Transactions, ICLEF Guardi-
anship Seminar IV- 1 (1988).

102. See Unif. Guardianship and Protective Proceedings Act § 2-301, 8A U.L.A.
488-89 (1983).

103. IND. Code § 29-3-4-l(a) (1988).
104. See infra notes 172-79 and accompanying text.

105. iND. Code § 29-3-4-l(c) (1988).
106. Id. § 29-3-4-l(a).

107. /£/.§ 29-3-4-l(d), (e).

108. Id. § 29-3-4- 1(d)(2).

109. Id. § 29-3-4-l(d), (e).

110. See supra note 3 and accompanying text.

111. Ind. Code § 29-3-4-l(f) (1988). This subsection is substantively the same as
the Uniform Act, the official comment of which states:

It is important that the provision be made for the approval of single
transactions or the establishment of protective arrangements as alternatives to

full conservatorship. , . . This section, consistent with the concept of a limited



1988] NEW GUARDIANSHIP CODE 347

rangements that might involve more than one transaction, which includes:

the payment, delivery, deposit, or retention of property; the sale, mort-

gage, lease, or other transfer of property; the entry into an annuity

contract, a contract for life care, a deposit contract, or a contract for

training and educating a person; and the addition to or establishment

of a suitable trust. ^^^ Even though a court must act in authorizing single

transactions and protective arrangements, it acts directly without ap-

pointing a guardian and, as a result, the comprehensively disabling effect

of appointing a guardian is avoided.''^

E. Limited Guardianships

Under the NGC, there are two separate methods in which a limited
guardian may be appointed. First, a court may appoint a limited guardian
to assist in the establishment of any protective arrangement or single

transaction. ^^"^ In this context, the limited guardian has the authority

conferred by the court order and serves until discharged by the court

after reporting to the court all matters conducted under the order. '^^ In

addition, a Umited guardian may be appointed in lieu of a guardian if
it is alleged, and the court finds, that the welfare of a disabled person

would be best served by limiting the scope of the guardianship.'^^ In

this context, the court order should be made to encourage the development
of the disabled person's self-improvement, self-reliance, and independence

and to contribute to the disabled person's living as normal a life as

that person's condition and circumstances permit without psychological

or physical harm to the disabled person.' '"^ For this second type of limited
guardianship, the NGC provides no guidance as to the powers and duties
of the limited guardian or the duration of the limited guardianship.

Unlike the NGC, prior Indiana law provided that the powers and duties

conservatorship, eliminates the necessity of the establishment of long-term ar-

rangements in this situation.

Unif. Guardianship and Protective Proceedings § 2-308(a) comment, 8A U.LA. 497
(1983).

112. Ind. Code § 29-3-4-l(f) (1988); see also Matthews, supra note 101, at IV-3 -

IV-4. The author, in discussing the parameters of the term "suitable trust," states that

the NGC does not specifically provide for the automatic termination of a trust established
for the benefit of a minor upon the minor reaching the age of eighteen years of age.
Although theoretically possible under the NGC, a trust of unlimited duration, established
for the benefit of a minor who is not also disabled, which extends majority would probably
be an unconstitutional taking of the minor's property.

113. Emison, supra note 6, at X-7.

114. Ind. Code § 29-3-4-3 (1988).
115. Id.

116. Id. § 29-3-5-3.

117. Id.



348 INDIANA LAW REVIEW [Vol. 22:335

of the limited guardian should be specifically stated in the order of

appointment, and that such powers and duties should not extend beyond

what was prescribed in the order of appointment.'^* Under prior Indiana

law, the ward retained all other rights, powers and duties.''^ Yet, in the

NGC, no such guidance exists and practitioners are free to recommend
and courts are free to formulate specific powers and duties in the orders

of appointment. With such lack of direction from the NGC, it is not
unexpected for practitioners to hesitate establishing a limited guardianship

in lieu of a full guardianship or a protective proceeding. '^^ Thus, the

sparse language in the NGC might have the unintended result of dis-
couraging Umited guardianships.

The concept of limited guardianships has developed as a response

to the traditional absolute authority granted to a guardian as well as

recent insights into the nature of disabilities and the possibilities for

rehabilitation and treatment when a protected person has control over
his affairs.'^* As such, a limited guardianship is of particular significance
to developmentally-impaired individuals.'^^ The premise of the use of a
limited guardianship in this regard is that a developmentally impaired

person grows and develops with training. As the person develops, the
limited guardianship can be further limited with the intent of its eventual

termination.'^^ In most states with limited guardianship statutes, the court

must initially determine those areas of decisionmaking in which a disabled

person is incapacitated.'^'* The use of an individual functional assessment

questionnaire is helpful in making such an assessment, because it is

designed to identify functional limitations and to determine whether the

limitations result in an inability to provide informed decisions on issues

of legal significance.'^ Based upon such an assessment, the court may
grant authority to the limited guardian in those areas of decisionmaking

in which evidence indicates that the disabled person is incapacitated.'^^

118. M § 29-1-18-21 (repealed effective July 1, 1989).
119. Id.

120. Emison, supra note 6, at X-8. Emison suggests that a petitioner is probably

better advised to use protective proceedings rather than "this newly-stated version of a

limited guardianship."

121. Casasanto, Saunders & Simon, Individual Functional Assessment: A Guide to
Determining the Need for Guardianship under New Hampshire Law, 28 New Hampshire
B.J. 13, 14-15 (1986) [hereinafter Casasanto].

122. See Secor, Parra, Schklar, Fosbinder & Brown, Use of Limited Guardianship
Proceedings for Disabled Persons, 18 Tenn. B.J. 14 (May 1982).

123. Limited Guardianship: Survey of Implementation Considerations, 15 Real Prop.

Prob. & Tr. J. 544 (1980).
124. Casasanto, supra note 121, at 15.

125. Id. at 13-14 (The authors provide an individual functional assessment ques-

tionnaire and instruction manual.).

126. Id. at 15.



1988] NEW GUARDIANSHIP CODE 349

For example, a limited guardian may only have the authority to make

decisions concerning medical treatment.
^^^

Similar to protective proceedings and single transactions, a limited

guardianship eliminates the necessity of the establishment of a full

guardianship. Yet, there are differences between these alternatives to full

guardianships. For instance, protective proceedings and single transactions

focus on specific transactions of a disabled person,
'^^ while Hmited

guardianships focus more on routine decisions made for a disabled

person. ^^^ In addition, protective proceedings and single transactions

involve direct court authorization or ratification of the transaction,
^^^

while limited guardianships involve the granting of authority to the

limited guardian to make decisions in limited areas on behalf of the

disabled person. ^^^ As previously stated, a hmited guardian may be

appointed by a court to assist in the establishment of any protective

arrangement or single transaction. '^^ In such a situation, the limited

guardian's authority is limited to that conferred by the court order,'"

and because the court has directly authorized the underlying transaction,

the limited guardian's authority would seem to be administrative in

nature.

F. Other Alternatives to Guardianships

Under prior Indiana law, not all forms of protection of a disabled

person or a minor were included in the guardianship law. While the

NGC expands the number of alternatives in the guardianship law itself,
other statutory alternatives outside the guardianship law still exist. One
of the most notable examples is the Uniform Durable Power of Attorney

Act.'^'* A durable power of attorney differs from the common law power
of attorney because a durable power of attorney may permit the agency
relationship to continue after the subsequent disability or incapacity of

127. Id. Other common areas identified by the authors concerning a limited guardian's
authority to act include: travel, or decision where to live; refusal or consent to counseling

services or other professional care where consent is legally necessary; making contracts;

possessing or managing real or personal property or income from any source; making

gifts; initiating, defending or settling lawsuits; lending or borrowing money; paying or

collecting debts; managing a business; continuing to act as a partner of a partnership;

accessing or releasing confidential records; and making decisions concerning education.

128. See supra notes 107-08 and accompanying text.

129. See supra note 123 and accompanying text.

130. IND. Code § 29-3-4- 1(f) (1988).
131. See supra note 122 and accompanying text.

132. See supra note 100 and accompanying text.

133. See supra note 111 and accompanying text.
134. iND. Code § 30-2-11-1 to -7 (1988).



350 INDIANA LAW REVIEW [Vol. 22:335

the principal or lapse of time.'^^ In addition, the Uniform Durable Power

of Attorney Act provides that the death of a principal who has executed
a power of attorney, durable or otherwise, may not terminate the agent's
authority until the agent has actual knowledge of the principal's death. '^^

Furthermore, another salient feature of the Uniform Durable Power of
Attorney Act is that it permits a person to nominate by a durable power

of attorney his own guardian, and except for good cause or disquali-
fication, the court must make its appointment in accordance with the
person's most recent nomination. ^^^

Another statutory alternative to a guardianship is the Indiana Uni-

form Gifts to Minors Act.^^^ This Act creates a statutory trust with a

support, maintenance, education and benefit standard for distribution. '^^

The custodian has broad discretion to make such distributions without
the need for court approval. '"^^ In addition, the custodian has all of the

rights and powers of a guardian.'"^* The duration of an Indiana Uniform

Gift to Minors Act custodianship is limited to when the donee reaches
the age designated by the donor which cannot be less than eighteen or

greater then twenty-one years of age.'"^^

An inter vivos trust is another alternative to a guardianship. The
inter vivos trust, which separates legal title from beneficial title, can be

an extremely powerful and flexible tool, albeit expensive. '"^^ Some of this
expense can be deferred by postponing all but nominal funding until

disability of the grantor-beneficiary occurs.'"^ This standby arrangement

requires the grantor to have also executed a durable power of attorney

prior to disability for the purpose of funding the trust. ^"^^

Another alternative to a full guardianship is contained in the Model
Health Care Consent Act.'"^^ Without court supervision, an individual,

who is able to consent to particular health care, may appoint another
person to act for him in the future if he becomes incapable of con-

senting.*"*^ This provision is designed to permit a person to plan who

135. Id. § 30-2-11-1.

136. Id. § 30-2-1 l-4(a).

137. Id. § 30-2-11-3.

138. Id. § 30-2-8-1 to -10.

139. Id. § 30-2-8-4(b).

140. Id.

141. Id. § 30-2-8-4(j).

142. Id. § 30-2-8-2.5(g).

143. Emison, supra note 6, at X-11.

144. Id.

145. Id. The author further explains that a standby trust coupled with a durable

power of attorney might not be the best tool to provide for the personal care needs of

a person.

146. iND. Code § 16-8-12-1 to -12 (1988).
147. Id. § 16-8-12-6.



1988] NEW GUARDIANSHIP CODE 351

shall serve as a representative in health care decisions during future

incapability. A person becomes incapable of consent if, "in the good
faith opinion of the attending physician, the individual is incapable of

making a decision regarding the proposed health care.'*''*^ If an attending

physician makes this determination concerning a person who has ap-
pointed a health care representative under the Model Health Care Consent

Act, then that representative has the authority to make health care
decisions according to the terms of the appointment, until such time

that the person becomes capable of consenting. ^"^^ In addition, if an

attending physician makes this determination concerning a person who
has not appointed a health care representative and who has no judicially
appointed guardian, then the Model Health Care Consent Act provides

that a
*

'spouse, parent, adult child or adult sibling" may consent to
health care.^^° Resort to a probate court is also available under the

Model Health Care Consent Act for the court to make a health care
decision, to order health care for an individual incapable of consenting,

or to appoint a health care representative for that individual. '^^ The

Model Health Care Consent Act also permits an individual to disqualify

others from consenting to the individual's future health care.'"

III. Guardianships

A. Jurisdiction and Venue

Similar to prior Indiana law, the NGC provides that the court having
probate jurisdiction'" has exclusive original jurisdiction over all matters

concerning guardians and protective proceedings.'^"^ The NGC provides
two exceptions to a probate court's exclusive jurisdiction:'" where "a

juvenile court has exclusive original jurisdiction over certain matters

relating to minors;" '^^ and where "a mental health division of a municipal
court . . . has concurrent jurisdiction in certain mental health proceedings

148. Id. § 16-8-12-3(a).

149. Id. § 16-8-12-6(g).

150. Id. § 16-8-12-4(a).

151. Id. § 16-8-12-7.

152. Id. § 16-8-12-8.

153. IND. Code § 29-3-1-3 (1988) defines "court" as the "court having probate
jurisdiction and, where the context permits, the court having venue of the guardianship."

154. Id. § 29-3-2-1; see also id. § 29-1-18-4 (repealed effective July 1, 1989) for

prior Indiana law.

155. Id. § 29-3-2-l(c), (d).

156. Ind. Code § 31-6-2-1 (1988) provides that a juvenile court has exclusive
jurisdiction in all cases concerning a child's alleged deUnquency, dependency or neglect.

See also In re Guardianship of Bramblett, 495 N.E.2d 798 (Ind. Ct. App. 1986); In re

Guardianship of Neff, 456 N.E.2d 1045 (Ind. Ct. App. 1983).



352 INDIANA LAW REVIEW [Vol. 22:335

. . . relating to guardianships and protective orders. "^^"^

If the alleged disabled person or minor resides in Indiana, then

venue for the appointment of a guardian or for protective proceedings

is generally in the county of that person's residence. *^^ If the alleged

disabled person or minor does not reside in Indiana, then venue is in

any county where any property of the person is located. ^^^ As previously
stated, if the proceeding is for the appointment of a temporary guardian

of the person, who is in need of medical care, then venue is in the
county where the facility is located that is providing, or attempting to

provide medical care, regardless of the person's residence. '^°

If proceedings are commenced in two or more counties, then the
court in which the first proceeding was commenced is to determine
proper venue. ^^^ All other proceedings are stayed. ^^^ If this court deter-

mines that proper venue is in another county, the court must transfer

the original file to the proper court.'" In addition, a court may transfer
a guardianship or protective proceeding to another court in Indiana upon
the court's finding of certain conditions'^ or to a court outside Indiana

if the other court agrees to assume jurisdiction.'^^ This permissive type

of transfer requires notice and a hearing in the same manner as is

required for the appointment of a guardian. '^^ Finally, if a court which

appointed a guardian does not have probate jurisdiction, the proceeding

must be transferred to the court which has proper jurisdiction and

venue. '^^

157. Ind. Code § 3 3-6-1 -2(a)(8) (1988) provides that the mental health division of
a municipal court has concurrent jurisdiction with any other authorized court to declare

and administer temporary guardianships in conjunction with mental health proceedings,

involuntary mental commitments and voluntary mental commitments.

158. Id. § 29-3-2-2(a)(l)(A).

159. Id. § 29-3-2-2(a)(2).

160. Id. § 29-3-2-2(a)(l)(B), (a)(2); see also supra note 90 and accompanying text.

161. iND. Code § 29-3-2-2(b) (1988).
162. Id.

163. Id.

164. Ind. Code § 29-3-2-2(c) (1988) hsts the conditions in which a court may transfer
jurisdiction:

(1) the proceeding was commenced in the wrong county;

(2) the residence of the disabled person or the minor has been changed to

another county;

(3) the proper venue is determined to be otherwise under the Indiana Rules of

Trial Procedure; or

(4) it would be in the best interest of the disabled person or the minor and

the property of the minor or the disabled person.

165. Id. § 29-3-2-2(c).

166. Id. § 29-3-2-2(c); see also infra notes 172-79 and accompanying text.

167. Id. § 29-3-2-2(d). While this NGC subsection uses the term "probate juris-



1988] NEW GUARDIANSHIP CODE 353

B. Appointment of Guardian

A guardianship is commenced when a person files a petition for the
appointment of a guardian. '^^ The petition must contain a number of

specific items, '^^ all of which are substantially the same items required

in a petition under prior Indiana law.*^^ Only one petition needs to be

filed for the appointment of a guardian for two or more minors or

disabled persons who are the children of a common parent, parent and
child, or husband and wife.^^^

Service of notice under the NGC^^^ is to be given in the same manner
prescribed under the Indiana Probate Code with regard to personal
service, pubHcation to nonresidents,'^^ registered mail, personal service

on nonresidents, and service on attorneys. '^"^ When a petition for ap-
pointment of a guardian or the issuance of a protective order relates

diction," presumably this term also includes juvenile courts and the mental health division
of a municipal court, both of which have jurisdiction in certain circumstances pursuant

to Ind. Code § 29-3-2-1. See supra notes 155-57 and accompanying text.
168. Id. § 29-3-5-1. See also Fruehwald, Appointment of a Guardian, ICLEF Guard-

ianship Seminar V-5 (1988).
169. Ind. Code § 29-3-5-l(a) (1988) states that a petition must contain the following:
(1) The name, age, residence, and post office address of the alleged disabled

person or minor for whom the guardian is sought to be appointed.
(2) The nature of the disability.

(3) The approximate value and description of the property of the disabled
person or minor, including any compensation, pension, insurance, or al-
lowance to which the disabled person or minor may be entitled.

(4) If a limited guardianship is sought, the particular limitations requested.

(5) Whether a guardian has been appointed or is acting for the disabled person
or minor in any state.

(6) The residence and post office address of the proposed guardian.
(7) The names and addresses, as far as known or as can reasonably be as-

certained, of the persons most closely related by blood or marriage to the
person for whom the guardian is sought to be appointed.

(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.

(9) The names and addresses of any other disabled persons or minors for whom
the proposed guardian is acting if the proposed guardian is an individual.

(10) The reasons the appointment of a guardian is sought and the interest of
the petitioner in the appointment.

(11) The name and business address of the attorney who is to represent the
guardian.

170. Id. § 29-1-18-11 (repealed effective July 1, 1989).
171. Id. § 29-3-5-6 (1988).
172. Id. § 29-3-6-1.

173. See Fruehwald, supra note 168, at V-7. The author noted that publication for
non-residents should be avoided under a logical extension of the United States Supreme
Court's holding in Tulsa Collection Services v. Pope, 108 S. Q. 1340 (1988).

174. See Ind. Code § 29-1-1-12 to -14 (1988).



354 INDIANA LAW REVIEW [Vol. 22:335

to a minor, notice of the hearing on the petition must be given to:

"the minor, if he is fourteen years or older, unless the minor has signed

the petition; . . . any living parent of the minor, unless parental rights

have been terminated by court order; . . . any person alleged to have

the principal care and custody of the minor during the sixty (60) days

immediately preceding the filing of the petition;" and '*any other person

that the court directs." ^^^ If it is alleged that the person is a disabled

person, notice of the hearing on the petition must be given to: the

alleged disabled person; the alleged disabled person's spouse; the alleged

disabled person's adult children, or if none, the alleged disabled person's

parents; any person serving as the guardian for, or who has the care
and custody of, the alleged disabled person; if there is no person to be

notified from the above persons other than the alleged disabled person,

then at least one person most closely related by blood or marriage to

the alleged disabled person; any person known to the petitioner to be
serving as the alleged disabled person's attorney-in-fact under a durable

power of attorney; and any other person that the court directs. ^^^ Notice

is not required for guardianship and protective proceedings concerning

a disabled person if the person to be notified waives notice or appears

at the hearing on the petition. ^''^ In addition, a court may, upon a
showing of good cause, waive notice of a petition for the appointment

of a successor guardian. '^^ Yet, at least arguably, notice cannot be waived

for guardianship and protective proceedings relating to minors. '^^

After a petition has been filed, the court is to set a hearing date.^^^

Unless an alleged disabled person is represented by counsel, a court may
appoint an attorney to represent the alleged disabled person and may
grant such attorney the powers and duties of a guardian ad litem. '^' In

addition, if a court determines that the alleged disabled person or minor

is not represented or adequately represented by counsel, then the court

must appoint a guardian ad litem and must set out, as part of the

record, the reasons for such appointment. ^^^ Unlike prior Indiana

175. Id. § 29-3-6-l(a)(3).

176. Id. § 29-3-6-l(a)(4).

177. Id.

178. Id. § 29-3-6- 1(a)(1).

179. Ind. Code § 29-3-6- 1(a)(4) (1988) provides, "Notice is not required under this
subdivision if the person to be notified waives notice or appears at the hearing on the

petition." (emphasis added) This subdivision only deals with disabled persons and not

minors. There appears to be no rationale to prevent waiver of notice to the designated

persons for proceedings relating to minors. One wonders whether the word "subsection"
should be substituted for the word "subdivision."

180. Id. § 29-3-5-l(c).

181. Id.

182. Id. § 29-3-2-3.



1988] NEW GUARDIANSHIP CODE 355

law,'^^ the NGC does not define the term * 'guardian ad litem," nor
does it define the powers and duties of a guardian ad litem. As such,

other statutory provisions and related case law must be examined to

provide these definitions.'*"* An alleged disabled person'*^ must be present
at the hearing unless the court finds that certain circumstances exist. '^^

The alleged disabled person may present evidence and cross-examine
witnesses.'*"^ In addition, a jury trial may be requested.'** Finally, any
person may apply for permission to participate in a hearing if the court
determines that the best interest of the alleged disabled person or minor

will be so served.'*^

A guardian will be appointed if the court finds that the individual
for whom the guardian is sought is a disabled person'^° or a minor and
the appointment of a guardian is necessary as a means of providing

183. Ind. Code § 29-l-18-l(b) (repealed effective July 1, 1989) defined a guardian

ad litem as "one appointed by a court, in which particular litigation is pending, to represent

a ward or an unborn person in that particular litigation."

184. See id. § 34-2-3-1 (1988); see also Bowen v. Sonnenburg, 411 N.E.2d 390, 396
(Ind. Ct. App. 1980) (emphasis in original) ("Guardian ad litem is someone appointed

by the court in which a particular litigation is pending to represent a ward or unborn

person in that particular litigation . . . [and the] status of a guardian ad litem exists

[only] in the particular ligitation in which the appointment occurs."); Ziegler v. Ziegler,

39 Ind. App. 21, 23, 78 N.E. 1066, 1068 (1906) (quoting Gibbs v. Potter, 166 Ind. 471,

475, 77 N.E. 942, 944 (1906) (emphasis in original) ("The extent of the authority of a

guardian ad litem must be found in the statute authorizing his appointment and in the

order of the court made in pursuance thereof.")).
185. No mention is made of whether or not a minor must be present at the hearing.

See Fruehwald, supra note 168, at V-8.

186. Ind. Code § 29-3-5-l(d) (1988). These circumstances are:

(1) it is impossible or impractical for the alleged disabled person to be

present due to the alleged disabled person's disappearance, absence from

the state, or similar circumstance;

(2) it is not in the alleged disabled person's best interest to be present

because of a threat to the health or safety of the alleged disabled person

as determined by the court;

(3) the disabled 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 disabled person was not disabled as a

result of a mental condition that would prevent that person from

knowingly and voluntarily consenting; or

(4) the disabled person has knowingly and voluntarily waived notice of the

hearing and at the time of such waiver the disabled person was not

disabled as a result of a mental condition that would prevent that

person from making a knowing and voluntary waiver of notice.

187. Id. ^ 29-3-5- 1(e).

188. Id.; see Ind. R. Tr. P. 38 for the time period necessary to request a jury

trial.

189. Ind. Code § 29-3-5-3(f) (1988).
190. See supra note 50.



356 INDIANA LAW REVIEW [Vol. 22:335

care and supervision of the physical person or property of the disabled

person or minor. *^^ The court may limit the scope of the guardianship
if it finds that the welfare of a disabled person would be best served. '^^

In addition, if the court finds that it is **not in the best interest of the

disabled person or minor to appoint a guardian," the court may treat
the petition for guardianship as a protective order or dismiss the pro-

ceedings.'^^

Except for minors, the threshold question concerning whether to

appoint a guardian is whether or not the person is a disabled person. '^"^

Except for the use of more modern terms in the NGC, the NGC's
definition of a "disabled person" is not materially different from the

definition of an "incompetent"'^^ under prior Indiana law.'^^ As a result,
under NGC, a physical condition by itself is sufficient for the appointment
of a guardian. '^^ Since the NGC is similar to prior Indiana law, the
holding in In re Wurm^^^ may still be applicable. In that case, the court
held that the appointment of a guardian must be grounded on a finding

that the person is unable to reasonably deal with his business affairs

because of mental impairment, albeit with the recognition that mental

attributions can be affected by physical disabilities.'^^

C. Guardians

Similar to prior Indiana law^^ and the Uniform Act,^°' the NGC
provides a court with broad discretion in appointing a guardian who is

191. IND. Code § 29-3-5-3 (1988).
192. See supra notes 116-20 and accompanying text.

193. iND. Code § 29-3-5-3(c) (1988).
194. See supra notes 186-87 and accompanying text.

195. See Ind. Code § 29-l-18-l(c) (repealed effective July 1, 1988).
196. Cremer, Litigation: Guardianships-Conservatorship, ICLEF Guardianship Sem-

inar IX- 1 (1988).

197. Id. See also supra note 50. Ind. Code § 29-2-l-4(3)(A) (1988) clearly provides

that disability may be attributable to a mutual impairment or physical impairment.
198. 360 N.E.2d 12 (Ind. Q. App. 1977).
199. Id. at 15.

200. Ind. Code § 29-1-18-10 (repealed effective July 1, 1988) provided that the

court must appoint a guardian of an incompetent person who is most suitable and willing
to serve. See also In re Guardianship of Brown, 436 N.E.2d 877 (Ind. Ct. App. 1982)

(appointment of guardian is within discretion of trial court which must have ultimate

regard for best interests of incompetents).

201. See Unif. Guardianship and Protective Proceedings Act § 2-205, 8A U.L.A.
480 (1983) which provides that any qualified person may be appointed guardian of an
incapacitated person. This comment to this section further provides that "qualified" in

its application to "persons" is not defined in the Uniform Act, meaning that an appointing

court has considerable discretion regarding the suitability of an individual to serve as a

guardian. Id. § 2-205 comment, 8A U.L.A. 481.



1988] NEW GUARDIANSHIP CODE 357

qualified and willing to serve.^^^ It has been suggested that this broad

discretion is limited by the rules relating to the appointment of a personal

representative for a decedent's estate.^°^ As such, a qualified guardian
may also have to be: eighteen years of age or older; competent; not a
convicted felon; and, if a resident corporation, qualified to act as a

fiduciary in Indiana.^^ Under the NGC,^^^ courts should give due regard

to the same considerations listed in prior Indiana law regarding the

appointment of a guardian.^^ In addition, the NGC provides that a
court should give due regard to designations made by an alleged disabled
person in a durable power of attorney and to any person acting for the

disabled person pursuant to a durable power of attomey^^^ executed

before the person became disabled.^°^ While the court has broad discretion

in appointing a guardian, the court should give preference, in the order

listed, to: a person designated in a durable power of attorney; the

disabled person's spouse; the disabled person's adult child; the disabled

person's parent; a person designated in a disabled person's parent's will;

any person related to the disabled person by blood or marriage with

whom the disabled person has resided for more than six months prior
to the filing of the petition; and a person nominated by the disabled

202. See Ind. Code § 29-3-5-4 (1988).
203. See Fruehwald, supra note 168, at V-11. Prior Indiana law provided that

persons who are qualified to serve as personal representatives for a decedent's estate are
qualified to serve as a guardian. See Ind. Code § 29-1-18-9 (repealed effective July 1,
1989). It does not appear that such provision was carried over into the NGC.

204. Ind. Code § 29-l-10-l(b) (1988).
205. Id. § 29-3-5-4.

206. Ind. Code § 29-1-18-10 (repealed effective July 1, 1988) provided that a court
should give due regard to:

(1) any request made by one for whom a guardian is being appointed by reasons
of old, age, infirmity, or other incapacity, other than insanity, mental illness,

mental retardation, senility, habitual drunkenness, or excessive use of drugs;

(2) any request for the appointment contained in a will or other written in-

strument;

(3) any request made by a minor of the age of fourteen (14) years or over for
the appointment of his guardian;

(4) any request for the appointment made by the spouse of an incompetent;

(5) the relationship by blood or marriage to the person for whom guardianship
is sought;

(6) the assets or interests of the incompetent and the incompetent's estate.

207. Ind. Code § 29-3-1-5 (1988) defines "durable power of attorney" as a power
of attorney that:

(1) is executed by a disabled person before that person became a disabled person;

(2) provides that the power survives the person's incompetence; and

(3) is executed in accordance with the law in effect in the jurisdiction in which

it was executed on the date is was executed.

208. Id. § 29-3-5-4(1), (6). See also supra note 137 and accompanying text.



358 INDIANA LAW REVIEW [Vol. 22:335

person who is caring for or paying for the care of the disabled person.^^

The court must select the person it considers best qualified to serve as

a guardian when persons who want to be a guardian have equal priority. ^^^

A court may also act in the best interests of the disabled person or
minor by selecting a low or no priority person over a higher priority

person. 2" Prior Indiana law specifically included a provision permitting

the department of public welfare, any other public agency or any char-

itable organization which was charged with the care and custody of an

incompetent to be appointed as a guardian. ^^^ The NGC essentially
maintained these provisions by including these organizations in its def-

inition of "person"^'^ in connection with whom may be appointed a
guardian. While these provisions permit a court having probate juris-

diction to appoint such an organization as a guardian for a disabled

person, a juvenile court has exclusive jurisdiction to do so for minors. ^^"^

Similar to prior Indiana law,^^^ the NGC requires that a guardian
must execute and file a bond.^'^ The NGC recognizes two exceptions to
this requirement: if the guardian is a bank or trust company;2^^ or if
the court finds a bond unnecessary and enters an order to that effect.^'^

The bond must not be less than the value of the guardianship property

in which the guardian has the power to sell, convey or encumber without

a court order, plus one year's estimated income.^^^ The court may accept

209. Id. § 20-3-5-5(a).

210. Id. § 29-3-5-5(b).

211. Id.

212. Id. ^ 29-1-18-9 (repealed effective July 1, 1988).

213. IND. Code § 29-3-1-12 (1988) defines "person" as:
an individual, organization, association, not-for-profit corporation, corporation

for profit, partnership, financial institution, trust, department of public welfare

or other governmental entity, or other legal entity.

214. See supra note 156 and accompanying text. See also In re Guardianship of

Neff, 456 N.E.2d 1045 (Ind. Ct. App. 1983) (Superior Court's order directing an infant

be made a ward of county department of public welfare was improper exercise of court's

probate jurisdiction).

215. Ind. Code § 29-1-18-22 (repealed effective July 1, 1989).
216. Id. § 29-3-7-1 (1988).

217. Ind. Code § 28- 1-1 -3(b) (1988) defines "bank or trust company" as:
a financial institution organized or reorganized as a bank, savings bank, private

bank, or trust company under the laws of this state with the express power to

receive and accept deposits of money subject to withdrawal by check, and
possessing such other rights and powers granted by the provisions of this article

in express terms or by implication. The term "bank" or "bank or trust company"

does not include a building and loan association, credit union, or industrial

loan and investment company.

218. Id. § 29-3-7-l(a).

219. Id.



1988] NEW GUARDIANSHIP CODE 359

Other collateral, including a pledge of securities or a mortgage of land.^^^

In addition, the court has the authority to reduce the amount of the

bond provided that the protected person's property is adequately pro-

tected.^^ As a condition of the bond reduction, a court may direct the
guardian to take specific steps to provide protection of the protected

person's property.^^^ Where there is a surety on the bond, the NGC
provides specific requirements concerning the respective liability of sur-

eties and guardians; consent by the surety to the jurisdiction of the

court; notice to sureties; proceedings against a surety for breach of the

guardian's duties; and the duration of the obligations under the bond.^^^

Letters of guardianship should be issued only after the bond, if

required, and the oath of a guardian have been filed with the clerk of

the court. ^^"^ The oath, which must state that the guardian will faithfully

discharge the duties of the guardian's trust according to law, must be

subscribed before the clerk or any other officer authorized to administer

oaths. ^^^ For corporate guardians, an acceptance of appointment must

220. Id. § 29-3-7-l(b).

221. Id. § 29-3-7-l(c).

222. IND. Code § 29-3-7- 1(c) (1988) provides that a court

(1) Direct the guardian to invest all, or a part of, the property subject to the

guardian's control in:

(A) stocks, bonds, or other securities of any corporation, public or private,

which are listed or admitted to trading on the New York Stock Exchange,
the American Stock Exchange, the Midwest Stock Exchange, the Pacific

Coast Stock Exchange, or any other exchange regulated by the Securities

and Exchange Commission; or

(B) securities that are obligations issued or guaranteed by the United States. . . .

(3) Direct the guardian to transfer all, or a part of, the property subject to the

guardian's control to a bank or trust company organized under the laws of
Indiana or of the United States and operating a bank or trust company
located within Indiana to administer the estate as an agent for the guardian.

(4) Direct the guardian to:

(A) transfer any or all stocks, bonds, and securities subject to the guardian's

control only after obtaining an order of the court directing the transfer;

and

(B) require that notice of this restriction on the transfer of such stocks,

bonds, and securities be placed upon the certificates evidencing those

stocks, bonds, and securities.

(5) Direct the guardian to comply with all, part, or any combination of the

requisites specified in subdivisions (1) through (4).

(6) Direct the guardian to take any other action that the court determines

necessary to provide adequate protection to the property of the protected

person.

223. Id. § 29-3-7-2(a).

224. Id. § 29-3-7-3.

225. Id.



360 INDIANA LAW REVIEW [Vol. 22:335

be executed and acknowledged by an appropriate corporate officer.^^^

In addition, the oath and acceptance, if applicable, must be filed and

recorded as part of the guardianship proceedings. ^^^ Any limitations on
a guardian's powers and responsibilities, including the creation of a

limited guardianship,^^^ must be endorsed on the letters of guardianship.^^9

A guardian must use the letters of guardianship as evidence that he has
all, and the protected person has none, of the rights to possess and

dispose of the guardianship property. ^^° The letters of guardianship should

be used to provide notice by delivering them to all relevant financial

institutions and persons and recording them in counties where real estate

is located .2^^

D. Powers and Duties of a Guardian

Under prior Indiana law, a guardian could be appointed by a court

as the guardian of the person or the guardian of the estate,^^^ with

different types of duties depending on the nature of the guardianship.^^

This dichotomy was not retained in the NGC and, as a result, a guardian
has duties concerning both the person and the property of the protected

person. A guardian has the right to take possession of the guardianship
property and the right to dispose of such property.^^"^ While the protected

person has title to the guardianship property, he is prohibited from

transferring or assigning it.^^^ The guardian has specified mandatory

duties under the NGC which include: to abide by the standards of care
and conduct applicable to trustees ;^3^ the duty to protect and preserve

226. Id.

111. Id.

228. See supra notes 114-33 and accompanying text.

229. IND. Code § 29-3-7-3(c) (1988); id. § 29-3-8-8(b).
230. Id. § 29-3-7-6(a); see also id. § 29-3-1-7, which defines "guardianship property"

as the property of a disabled person or a minor for which the guardian is responsible.

231. Id. § 29-3-7-6(b).

232. Id. § 29-1-18-1 (repealed effective July 1, 1988).

233. Id. § 29-1-18-28.

234. Id. § 29-3-7-5 (1988).

235. Id. While an attempted transfer or assignment of guardianship is ineffective,

it may generate a claim under Ind, Code § 29-3-10-1 (1988).
236. See id. § 30-4-3-6 which provides:

(a) The trustee has a duty to administer a trust according to its terms.

(b) Unless the terms of the trust provide otherwise, the trustee also has a duty:

(1) to administer the trust solely in the interest of the beneficiaries;

(2) to treat multiple beneficiaries impartially;

(3) to take possession of and maintain control over the trust property;

(4) to preserve the trust property;

(5) to make the trust property productive;



1988] NEW GUARDIANSHIP CODE 361

the guardianship property;^^'' the duty to conserve the guardianship prop-

erty in excess of the protected person's current needs;^^^ the duty to

encourage the protected person's self-reliability and independence; and

to consider recommendations relating to the appropriate standard of

support, care, education and training for the protected person or the

protected person's dependent made by the protected person's parent or
guardian.^^^ In addition, a guardian of a minor has all of the respon-

sibilities of a parent regarding the minor's custody and support, while

the guardian of a disabled person is responsible for the disabled person's

care and custody.^"^^ In addition, the guardian has the following duties,

without limitation i^"^* (1) the guardian must be or shall become sufficiently

acquainted with the protected person and maintain sufficient contacts

with the protected person to know of the protected person's capabilities,

(6) to keep the trust property separate from his individual property and

separate from or clearly identifiable from property subject to another

trust;

(7) to maintain clear and accurate accounts with respect to the trust estate;

(8) upon reasonable request, to give the beneficiary complete and accurate

information concerning any matter related to the administration of the

trust and permit the beneficiary or his agent to inspect the trust property,

the trustee's accounts, and any other documents concerning the ad-

ministration of the trust;

(9) to take whatever action is reasonable to realize on claims constituting

part of the trust property;

(10) to defend actions involving the trust estate;

(11) not to delegate to another person the authority to perform acts which

the trustee can reasonably perform personally; and

(12) to supervise any person to whom authority has been delegated.
The apparent genesis of Ind. Code § 29-3-8-3(1) (1988) seems to be the Unif. Guardianship
AND Protective Proceedings Act § 2-316, 8A U.L.A. 502 (1983) which provides that
a conservator must act as a fiduciary and observe the standards of care applicable to

trustees.

237. Ind. Code § 29-3-8-3 (1988) provides that the duty to preserve guardianship
property is a mandatory duty of a guardian. Yet, Ind. Code § 29-3-8-1 (1988) provides
that a guardian of a minor has this duty unless otherwise ordered by the court and that

a guardian of a disabled person has this duty to the extent ordered by the court. This

inconsistency in a guardian's duty to preserve can only lead to confusion, especially since

one of the standards of care of a trustee which is also imposed upon a guardian is the
duty to preserve the trust property. See id. § 30-4-3-6(a)(4).

238. This provision is contained in Ind. Code §§ 29-3-8-l(a)(3), (b)(1) & -3(3) (1988).
239. Id. § 29-3-8-3. See Wishard, supra note 91, at 11-12. The author states that

the phrase "or guardian" at the end of this section is either an oversight or redundancy

that should be corrected.

240. Ind. Code § 29-3-8-1 (1988).
241. One wonders if the phrase "without hmitation" is meaningful since Ind. Code

§ 29-3-8-8 (1988) provides that a court may limit the responsibilities of a guardian and
create a limited guardianship.



362 INDIANA LAW REVIEW [Vol. 22:335

disabilities, limitations, needs, opportunities, and physical and mental

health; (2) upon termination, the guardian must comply with the ap-

propriate NGC provisions concerning termination ;2'*^ (3) the guardian
must report the physical and mental condition of the protected person

to the court as ordered by the court; and (4) the guardian has any other

responsibihties that the court may order.^^

The NGC's duties of a guardian of a minor or disabled person are
extremely similar to the duties of a guardian contained in the Uniform

Act.^^ For those guardians under prior Indiana law who were guardians
of the estate (e.g., a bank or trust company), the NGC duties relating
to becoming acquainted with and maintaining contacts with the protected

person and making reports concerning the physical and mental condition

of the protected person to the court are probably ominous. In this

context, these duties, which presumably were borrowed from the Uniform

Act's duties of a guardian, have no logical relationship to such guard-

ianships which more closely resemble conservatorship under the Uniform

Act. Under the Uniform Act, the relationship established to protect the

person of a disabled person is a guardianship^'^^ and the relationship

established to protect the property of a disabled person is a conserva-

torship.^"^ Each relationship has separate duties and powers.^"^^ Because

of these separate duties, guardianships under the Uniform Act are not

likely to be attractive positions for banks or trust companies who are
more interested in handling the disabled person's estate than in his or

her personal well being. ^"^^ Likewise, because the NGC imposes the
Uniform Act's duties of a guardian, guardianships under the NGC are
not likely to be attractive to banks or trust companies. In these situations,

the bank or trust company is well advised to create a limited guardianship
in which its duties are limited to the management, protection, preservation

and conservation of the guardianship property. ^"^^ Presumably, these duties

would be similar to the duties of guardians of the estate under prior

Indiana law,^^^ the duties of a conservator under the Uniform Act,^^^

242. See id. § 29-3-12-1 to -5.

243. Id. § 29-3-8-1.

244. See Unif. Guardianship and Protective Proceedings Act § 2-109, 8A U.L.A.
467-69 (1983); id. § 2-209, 8A U.L.A. 485.

245. See id. § 1-201(6), 8A U.L.A. 447.
246. Id. § 1-201(3), 8A U.L.A. 447.
247. See id. §§ 2-109, 2-209, 2-316, 8A U.L.A. 467-69, 485 & 502.
248. Id. § 2-107 comment, 8A U.L.A. 466.
249. IND. Code § 29-3-8-8 (1988).
250. See id. § 29-l-18-28(b) (repealed effective July 1, 1989).

251. See Unif. Guardian and Protection Proceedings Act § 2-316, 8A U.L.A.
502 (1983).



1988] NEW GUARDIANSHIP CODE 363

or the duties of a trustee under the Indiana Trust Code.^^^ Yet, as

previously mentioned, the NGC provides nominal guidance concerning
the establishment of limited guardianships,"^ and, as such, practitioners

are free to formulate the provisions of the limited guardianships provided

that they obtain court approval. This lack of guidance from the NGC
could easily result in a reduction of the duties of guardians, who under
prior Indiana law were guardians of the estate, because such guardians

are free to tailor the terms of limited guardianships. It is not unexpected

that such discretion may be used by guardians to reduce their duties.
The NGC provides that the guardian has all of the powers necessary

to perform his responsibilities. ^^"^ In addition to this broad grant of

power, the NGC provides a non-exhaustive list of specific powers."^
While most of these enumerated powers stem from the Uniform Act or

prior Indiana law,^^^ some provisions are noteworthy. The NGC provides
that the guardian has *'[t]he power to purchase a home for the minor
or the minor's dependents.""^ More importantly, the NGC provides that
the guardian has the authority "to delegate to the protected person

certain responsibilities for decisions affecting the protected person's busi-

ness affairs and well-being.""^ The NGC provides that any transaction
concerning guardianship property is void if there is a substantial conflict

of interest between the protected person's interest and the guardian's

personal interest. ^^^

Within ninety days after appointment, a guardian must file a complete

inventory of the guardianship property together with an oath or affir-

mation that the inventory is believed to be complete and accurate, while

a temporary guardian has thirty days to do the same.^^^ Unless otherwise

directed by the court, a guardian must file a verified written account

of the guardian's administration at least biennially and not more than
thirty days after the anniversary date of the guardian's appointment. ^^^

252. See supra note 236 and accompanying text.

253. See supra note 120 and accompanying text.

254. See Ind. Code § 29-3-8-2 (1988); id. § 29-3-8-4.

255. See id.

256. See Unif. Guardianship and Protective Proceedings Act § 2-109, 8A U.L.A.
467 (1983); Ind. Code § 29-1-18-31 to -43 (repealed effective July 1, 1989).

257. Ind. Code § 29-3-8-2(a)(7) (1988); see also Wishard, supra note 91, at 11-11
to 11-12 which states that this change from prior law is believed to have limited applicability.

258. Ind. Code § 29-3-4(2) (1988).
259. Ind. Code § 29-3-8-5 (1988) specifically provides that any sale or encumbrance

of guardianship property "to a guardian or guardian's spouse, agent, attorney, or any

corporation, trust, or other organization in which the guardian has a substantial beneficial

interest" is a conflict of interest and void.

260. Id. § 29-3-9-5.

261. Id. § 29-3-9-6(a).



364 INDIANA LAW REVIEW [Vol. 22:335

The accounting must contain **a description of the condition and cir-

cumstances of the protected person. "^^^ The NGC provides for notice
of the hearing of each account, ^^^ which, if given, enables the court

order approving the account to be binding on all persons. ^^'^ In addition,

the NGC provides for ex parte approval of the account, other than a
final account, which may be subsequently reviewed by the court. ^^^

E. Removal of a Guardian

The NGC^^^ retains the provisions in prior Indiana law^^'' concerning

the removal of a guardian by adopting the grounds for removal contained

in the Indiana Probate Code, which provides that a court may remove
a personal representative if he "becomes mentally incompetent, dis-

qualified, unsuitable or incapable of discharging his duties, has mis-

managed the estate, failed to perform any duty imposed by law or by

any lawful order of the court, or has ceased to be domiciled in Indi-

^j^^ "268 p^ personal representative under the Indiana Probate Code and,
hence, a guardian under the NGC becomes disqualified if he is: under
eighteen years old; not competent; a convicted felon; or a resident

corporation not qualified to act as a fiduciary in Indiana. ^^^ "Unsuitability

does not require actual misconduct or breach of duty, but includes

incapacity, unwillingness, or inability to discharge the duties in the

particular case with fidelity and efficiency. '*^^° In addition, '*if there is

such animosity . . . [as] to interfere with the . . . conduct of the guard-

ianship, the guardian may be removed as unsuitable. '*^^^ Mismanagement
includes failure to manage with the "scrupulous integrity" required of

a fiduciary,2^2 failure to make the property productive,^^^ failure to care
for the property,^^'* and commingling of the property with the fiduciary's

262. Id. § 29-3-9-6(c).

263. Id. § 29-3-9-6(d).

264. Id. § 29-3-9-6(0

.

265. Id. § 29-3-9-6(e).

266. Id. § 29-3-12-4.

267. See id. § 29-1-18-25 (repealed effective July 1, 1989).

268. Id. § 29-1-10-6 (1988).

269. See supra note 200 and text accompanying notes 200-06.

270. Falender, Removal, Termination and Foreign Guardians, ICLEF Guardianship
Seminar VII-13 (1988) (citing In re Estate of Baird, 408 N.E.2d 1323, 1327 (Ind. Ct.

App. 1980) (quoting Grossman v. Grossman, 343 Mass. 565, 179 N.E.2d 900 (1962))).

271. Falender, supra note 270, at VII-13 (citing Estate of Jaworski v. Jaworski,

479 N.E.2d 89 (Ind. Ct. App. 1985)).

272. E.g., Helm v. Odle, 129 Ind. App. 478, 157 N.E.2d 584 (1959) cited in Falender,
supra note 270, at VII-26.

273. E.g., Brannock v. Stocker, 79 Ind. 558 (1881), cited in Falender, supra note

270, at VII-26.

274. Id.



1988] NEW GUARDIANSHIP CODE 365

personal assets. ^^^ Failure to comply with the law or a lawful order of

court includes failure to file an inventory,^^^ a bond^^^ or an accounting^^^

as required by the NGC or court order. Finally, the Indiana Probate
Code's removal provision concerning ceasing to be domiciled in Indiana

arguably should not apply to the NGC.^'^^

The manner for removal contained in the Indiana Probate Code^^°

is incorporated by reference in the NGC.^^' These removal procedures

provide that a court either on its own motion, or on petition of any
person interested in the guardianship, shall order the guardian to appear

and show cause why he should not be removed.^^^ This procedure includes
notice and hearing provisions.^^^ In addition, a court may remove a
guardian under an ex parte emergency procedure.^^"^ Arguably, the terms

of NGC might prohibit a court from removing a guardian on its own
motion.^^^

Upon removal, the authority and responsibility of a guardian ter-
minates. ^^^ While the removal of a guardian does not invalidate the

guardian's acts or omissions prior to removal, ^^"^ it also does not affect

the guardian's liability for such acts or the obligation to account for

the guardian's conduct of the guardian's trust.^^^ Upon the removal of
a guardian, the guardian must give a final accounting to the court. ^^^

Finally, upon finding that a guardian is not effectively performing his

fiduciary duties and that the welfare of the protected person requires

immediate action, a court may appoint a replacement temporary
guardian.^^

275. E.g., In re Guardianship of Brown, 436 N.E.2d 877, 888 (Ind. Ct. App. 1982);

Rigby V. Leister, 147 Ind. App. 438, 261 N.E.2d 891 (1970) cited in Falender, supra note

270, at VII-26, VII-27.

276. E.g., Rigby v. Leister, 147 Ind. App. 438, 261 N.E.2d 891 (1970) cited in

Falender, supra note 270, at VII-27.

277. See, e.g., Toledo, St. Louis & Kansas City R.R. v. Reeves, 8 Ind. App. 667,
35 N.E. 199 (1894) cited in Falender, supra note 270, at VII-27.

278. E.g., Rigby v. Leister, 147 Ind. App. 438, 261 N.E.2d 891 (1970) cited in

Falender, supra note 270, at VII-28.

279. See Falender, supra note 270, at VII- 13 to VII- 14.

280. Ind. Code § 29-1-10-6 (1988).
281. Id. § 29-3-12-4(a).

282. Id. § 29-l-10-6(a).

283. Id.

284. Id. § 29-l-10-6(b).

285. See Falender, supra note 270, at VII-15. The NGC specifically states that a
court may remove a guardian "on petition" which could be construed to prohibit a court
from removing a guardian on its own motion. Ind. Code § 29-3-12-4(a) (1988).

286. Ind. Code § 29-3-12-5 (1988).
287. Id. § 29-3-12-4(c).

288. Id. § 29-3-12-5.

289. Id. § 29-3-12-4(a); see also supra notes 261-65 and accompanying text.

290. See supra notes 92-93 and accompanying text.



366 INDIANA LAW REVIEW [Vol. 22:335

F. Termination of a Guardianship

The NGC's grounds for termination^^^ are substantially the same as
prior Indiana law.^^^ Unless a minor is adjudicated a disabled person,

the guardianship of a minor must terminate upon the minor's attaining

eighteen years of age or the minor's death and may terminate upon the
adoption or marriage of the minor. ^^^ Furthermore, the guardianship of

a disabled person must terminate upon the court's determination that
the protected person is no longer disabled or upon the protected person's
death.2^ The court also has broad discretion to terminate the guardianship

for other reasons.^^^

The protected person or any other person may petition for an order
terminating the guardianship or a protective order. ^^^ '*A request for an

order may also be made informally to the court. "^^^ Presumably, the
NGC's general notice and hearing requirements apply to any petition
or request for termination.^^^ This right to petition may be limited by
the court's authority to specify in a prior order a minimum period, not
exceeding one year, during which a petition for termination may not
be filed.299

Upon termination, the guardian has no more than thirty days to
file a written verified account of the guardian's administration. ^°° The

authority and responsibility of a guardian terminates upon the termination
of the guardianship,^^' with the exception of certain ministerial func-

tions. ^^^

291. See Ind. Code § 29-3-12-1 (1988).
292. See id. § 29-1-18-47 (repealed effective July 1, 1989).

293. Id. § 29-3-12-l(a) (1988).

294. Id. § 29-3- 12- 1(b).

295. iND. Code § 29-3- 12- 1(c) (1988) provides:
(c) The court may terminate any guardianship if:

(1) the guardianship property does not exceed the value of three thousand

five hundred dollars ($3,500);

(2) the guardianship property is reduced to three thousand five hundred

dollars ($3,500);

(3) the domicile or physical presence of the protected person is changed to

another state and a guardian has been appointed for the protected person

and the protected person's property in that state; or

(4) the guardianship is no longer necessary for any other reason.

296. Id. § 29-3-12-3.

297. Id.

298. See supra notes 172-89 and accompanying text.

299. iND. Code § 29-3-12-3 (1988).
300. Id. § 29-3-9-6(a)(2); see also supra notes 261-65 and accompanying text.

301. iND, Code § 29-3-12-5 (1988).
302. Ind. Code § 29-3- 12- 1(d) (1988) provides that if the guardianship terminates

for any reason other than death, the guardian "may pay the claims and expenses of



1988] NEW GUARDIANSHIP CODE 367

G. Foreign Guardianships

The NGC^^^ has expanded the substantive provisions contained in

prior Indiana law^^ concerning foreign guardianships. The NGC allows
a foreign guardian to collect debts and assets in Indiana upon proof

of his appointment and the presentation of an affidavit containing

specified information. ^^^ *'If the person to whom the affidavit is presented
does not know of any other guardianship proceeding pending in Indiana,"
payment or delivery may be made in response to the affidavit without
further liability. ^^^ A foreign guardian may exercise all powers of a
guardian with respect to property of a disabled person or minor located

in Indiana and to maintain actions and proceedings in Indiana if certain

requirements have been met.^^^ Finally, upon collecting debts and assets

or exercising any power of a guardian with respect to property located

in Indiana, the foreign guardian submits personally to the jurisdiction

of Indiana courts in a proceeding relating to such property. ^*^^

administration that are approved by the court and exercise other powers that are necessary

to complete the performance of the guardian's trust, including payment and delivery of

the remaining property for which the guardian is responsible to the protected person. In

addition, Ind, Code § 29-3- 12- 1(e) provides that if the guardianship terminates because
of the protected person's death, the guardian

may pay the expenses of administration that are approved by the court and
exercise other powers that are necessary to complete the performance of the

guardian's trust and may deliver the remaining property for which the guardian
is responsible to the protected person's personal representative. If approved by

the court, the guardian may pay directly the following:

(1) Reasonable funeral and burial expenses of the protected person.

(2) Reasonable expenses of the protected person's last illness.

(3) The protected person's federal and state taxes.

(4) Any statutory allowances payable to the protected person's surviving
spouse or surviving children.

(5) Any other obligations of the protected person.
303. Id. § 29-3-13-1 to -3.

304. Id. § 29-1-18-52 (repealed effective July 1, 1989).

305. Id. § 29-3-13-l(a) (1988). The affidavit must state:

(1) That the foreign guardian does not know of any other guardianship pro-
ceeding, relating to the disabled person or minor, pending in Indiana.

(2) That the letters of the foreign guardian were duly issued.

(3) That the foreign guardian is entitled to receive the payment or delivery.

306. Id. § 29-3-13-l(b).

307. Id. § 29-3-13-2. These requirements are: (a) that no guardian has been appointed,

and no petition in a guardianship proceeding is pending in Indiana; (b) that the guardian

has been appointed by a court in the state of the disabled person's or minor's domicile;

and (c) that the guardian files an authenticated copy of the guardian's appointment and

a bond in the court in the county in which the disabled person's or minor's property is

located.

308. Id. § 29-3-13-3.