2016 Indiana Code
TITLE 29. PROBATE
ARTICLE 3. GUARDIANSHIPS AND PROTECTIVE PROCEEDINGS
CHAPTER 9. MATTERS OTHER THAN APPOINTMENT
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IC 29-3-9
Chapter 9. Matters Other Than Appointment
IC 29-3-9-1
Delegation of powers by executed power of attorney; limitations
Sec. 1. (a) As used in this section, "department" means the
department of child services established by IC 31-25-1-1.
(b) As used in this section and except as otherwise provided in
this section, "foster care" has the meaning set forth in IC 31-9-2-46.7.
(c) Except as provided in subsections (d) and (h), by a properly
executed power of attorney, a parent of a minor or a guardian (other
than a temporary guardian) of a protected person may delegate to
another person for:
(1) any period during which the care and custody of the minor
or protected person is entrusted to an institution furnishing care,
custody, education, or training; or
(2) a period not exceeding twelve (12) months;
any powers regarding health care, support, custody, or property of
the minor or protected person. A delegation described in this
subsection is effective immediately unless otherwise stated in the
power of attorney.
(d) A parent of a minor or a guardian of a protected person may
not delegate under subsection (c) the power to:
(1) consent to the marriage or adoption of a protected person
who is a minor; or
(2) petition the court to request the authority to petition for
dissolution of marriage, legal separation, or annulment of
marriage on behalf of a protected person as provided under
section 12.2 of this chapter.
(e) A person having a power of attorney executed under
subsection (c) has and shall exercise, for the period during which the
power is effective, all other authority of the parent or guardian
respecting the health care, support, custody, or property of the minor
or protected person except any authority expressly excluded in the
written instrument delegating the power. The parent or guardian
remains responsible for any act or omission of the person having the
power of attorney with respect to the affairs, property, and person of
the minor or protected person as though the power of attorney had
never been executed.
(f) A delegation of powers executed under subsection (c) does not,
as a result of the execution of the power of attorney, subject any of
the parties to any laws, rules, or regulations concerning the licensing
or regulation of foster family homes, child placing agencies, or child
caring institutions under IC 31-27.
(g) Any child who is the subject of a power of attorney executed
under subsection (c) is not considered to be placed in foster care. The
parties to a power of attorney executed under subsection (c),
including a child, a protected person, a parent or guardian of a child
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or protected person, or an attorney-in-fact, are not, as a result of the
execution of the power of attorney, subject to any foster care
requirements or foster care licensing regulations.
(h) A foster family home licensed under IC 31-27-4 may not
provide overnight or regular and continuous care and supervision to
a child who is the subject of a power of attorney executed under
subsection (c) while providing care to a child placed in the home by
the department or under a juvenile court order under a foster family
home license. Upon request, the department may grant an exception
to this subsection.
(i) A parent who:
(1) is a member in the:
(A) active or reserve component of the armed forces of the
United States, including the Army, Navy, Air Force, Marine
Corps, National Guard, or Coast Guard; or
(B) commissioned corps of the:
(i) National Oceanic and Atmospheric Administration; or
(ii) Public Health Service of the United States Department
of Health and Human Services;
detailed by proper authority for duty with the Army or Navy
of the United States; or
(2) is required to:
(A) enter or serve in the active military service of the United
States under a call or order of the President of the United
States; or
(B) serve on state active duty;
may delegate the powers designated in subsection (c) for a period
longer than twelve (12) months if the parent is on active duty service.
However, the term of delegation may not exceed the term of active
duty service plus thirty (30) days. The power of attorney must
indicate that the parent is required to enter or serve in the active
military service of the United States and include the estimated
beginning and ending dates of the active duty service.
(j) Except as otherwise stated in the power of attorney delegating
powers under this section, a delegation of powers under this section
may be revoked at any time by a written instrument of revocation
that:
(1) identifies the power of attorney revoked; and
(2) is signed by the:
(A) parent of a minor; or
(B) guardian of a protected person;
who executed the power of attorney.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.75; P.L.101-2008, SEC.7; P.L.178-2011, SEC.6; P.L.83-2014,
SEC.4; P.L.81-2015, SEC.18; P.L.74-2016, SEC.1.
IC 29-3-9-2
Change in physical presence of protected person
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Sec. 2. A guardian (other than a temporary guardian), a volunteer
advocate for seniors, or a volunteer advocate for incapacitated adults
appointed under IC 29-3-8.5 may, with the approval of and under
such conditions as may be imposed by the court after notice and
hearing, change the physical presence of the protected person to
another place in Indiana or to another state if the court finds that such
a change is in the best interests of the protected person. Upon such
a change, the guardianship may be limited or terminated by the court.
As added by P.L.169-1988, SEC.1. Amended by P.L.41-2004, SEC.3;
P.L.11-2006, SEC.11.
IC 29-3-9-3
Compensation and reimbursement of guardian
Sec. 3. A guardian is entitled to reasonable compensation for
services as guardian and to reimbursement for reasonable
expenditures made in good faith on behalf of the protected person.
As added by P.L.169-1988, SEC.1.
IC 29-3-9-4
Repealed
(As added by P.L.169-1988, SEC.1. Repealed by P.L.6-2010,
SEC.40.)
IC 29-3-9-4.1
Guardian access to protected person's digital assets upon
authorization of court
Sec. 4.1. (a) After notice to interested persons and upon
authorization of a court, a guardian may access:
(1) the content of an electronic communication;
(2) a catalogue of electronic communications; or
(3) any other digital asset;
of a protected person as provided in the order of the court. The
court's authorization may apply generally or be restricted in scope.
(b) Before approving a guardian's exercise of the power to access
an item described in subsection (a)(1) through (a)(3), the court shall
consider primarily the decision that the protected person would have
made, to the extent that the decision the protected person would have
made can be ascertained.
As added by P.L.137-2016, SEC.7.
IC 29-3-9-4.5
Estate planning
Sec. 4.5. (a) After notice to interested persons and upon
authorization of the court, a guardian may, if the protected person has
been found by the court to lack testamentary capacity, do any of the
following:
(1) Make gifts.
(2) Exercise any power with respect to transfer on death or
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payable on death transfers that is described in IC 30-5-5-7.5.
(3) Convey, release, or disclaim contingent and expectant
interests in property, including marital property rights and any
right of survivorship incident to joint tenancy or tenancy by the
entireties.
(4) Exercise or release a power of appointment.
(5) Create a revocable or irrevocable trust of all or part of the
property of the estate, including a trust that extends beyond the
duration of the guardianship.
(6) Revoke or amend a trust that is revocable by the protected
person.
(7) Exercise rights to elect options and change beneficiaries
under insurance policies, retirement plans, and annuities.
(8) Surrender an insurance policy or annuity for its cash value.
(9) Exercise any right to an elective share in the estate of the
protected person's deceased spouse.
(10) Renounce or disclaim any interest by testate or intestate
succession or by transfer inter vivos.
(b) Before approving a guardian's exercise of a power listed in
subsection (a), the court shall consider primarily the decision that the
protected person would have made, to the extent that the decision of
the protected person can be ascertained. If the protected person has
a will, the protected person's distribution of assets under the will is
prima facie evidence of the protected person's intent. The court shall
also consider:
(1) the financial needs of the protected person and the needs of
individuals who are dependent on the protected person for
support;
(2) the interests of creditors;
(3) the possible reduction of income taxes, estate taxes,
inheritance taxes, or other federal, state, or local tax liabilities;
(4) the eligibility of the protected person for governmental
assistance;
(5) the protected person's previous pattern of giving or level of
support;
(6) the protected person's existing estate plan, if any;
(7) the protected person's life expectancy and the probability
that the guardianship will terminate before the protected
person's death; and
(8) any other factor the court considers relevant.
(c) A guardian may examine and receive, at the expense of the
guardian, copies of the following documents of the protected person:
(1) A will.
(2) A trust.
(3) A power of attorney.
(4) A health care appointment.
(5) Any other estate planning document.
As added by P.L.6-2010, SEC.12.
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IC 29-3-9-5
Inventory of guardianship property
Sec. 5. (a) Within ninety (90) days after appointment, a guardian
(other than a temporary guardian) shall file with the court a complete
inventory of the property subject to the guardian's control together
with an oath or affirmation that the inventory is believed to be
complete and accurate as far as information permits. A temporary
guardian shall file the inventory and oath or affirmation with the
court within thirty (30) days after appointment. The inventory must
conform to the requirements of IC 29-1-12-1. The guardian shall
provide a copy of the inventory to the protected person if the
protected person is at least fourteen (14) years of age. A copy also
shall be provided to any guardian, parent, or person with whom the
protected person resides and any other person ordered by the court.
In addition, the guardian shall provide notice of the filing of the
inventory to each person that was required to be notified of the
hearing on the petition to establish the guardianship. The notice must
be provided in the same manner as the notice of the hearing to
establish a guardianship. The notice must include all of the
following:
(1) The cause number.
(2) A statement that Indiana law requires a guardian to file with
the court a written verified account of the guardian's
administration:
(A) at least biennially, not more than thirty (30) days after
the anniversary date of the guardian's appointment; and
(B) not more than thirty (30) days after the termination of
the appointment.
(3) A statement that the inventory and the written verified
accounts may be inspected at the court's address.
(b) The guardian shall keep suitable records of the guardian's
administration and exhibit the records as ordered by the court.
As added by P.L.169-1988, SEC.1. Amended by P.L.265-1995,
SEC.1.
IC 29-3-9-6
Account of administration; filing with court; notice of hearing on
account; order of discharge; limitation of actions against sureties
Sec. 6. (a) Unless otherwise directed by the court, a guardian
(other than a temporary guardian) shall file with the court:
(1) at least biennially, not more than thirty (30) days after the
anniversary date of the guardian's appointment; and
(2) not more than thirty (30) days after the termination of the
appointment;
a written verified account of the guardian's administration.
(b) A temporary guardian shall file with the court, within thirty
(30) days after the termination of the temporary guardian's
appointment, and otherwise as ordered by the court, a written
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verified account of the temporary guardian's administration.
(c) A written verified account required under this section must
include the incapacitated person's or minor's current residence and a
description of the condition and circumstances of the incapacitated
person or minor.
(d) The court shall conduct a hearing on each verified account
filed under this section. The court shall give notice to each person
entitled to receive notice that an accounting has been filed and will
be acted upon by the court on the date set unless written objections
are presented to the court on or before that date. The court shall give
the notice required by this subsection, unless waived, to the
following:
(1) The protected person, unless waived by the court. If notice
to the protected person is waived, the court shall give notice to
a person who is not the guardian of the protected person in the
following priority:
(A) The protected person's spouse.
(B) An adult child of the protected person.
(C) A parent of the protected person.
(D) A guardian ad litem appointed by the court under
subsection (e).
(2) In the case of a protected person who has died, the personal
representative of the estate of the protected person, if any.
(3) Any other persons that the court directs.
(e) The court may appoint a guardian ad litem to review on behalf
of a protected person an accounting filed under this section if:
(1) the protected person does not have a spouse, an adult child,
or a parent; or
(2) the same individual:
(A) served as the protected person's guardian before the
death of the protected person; and
(B) is the personal representative of the protected person's
estate.
(f) When an account other than an account in final settlement is
filed, the court may approve the same ex parte, but the account may
be reviewed by the court at any subsequent time and does not
become final until an account in final settlement is approved by the
court after notice and hearing.
(g) When notice of hearing has been given under this section, the
order of the court approving the intermediate account or the final
account is binding upon all persons.
(h) When a guardian files with the court proper receipts or other
evidence satisfactory to the court showing that the guardian has
delivered to the appropriate persons all the property for which the
guardian is accountable as guardian, the court shall enter an order of
discharge. The order of discharge operates as a release from the
duties of the guardian's office that have not yet terminated and
operates as a bar to any suit against the guardian and the guardian's
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sureties, unless the suit is commenced within one (1) year from the
date of the discharge.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.76; P.L.99-2013, SEC.8.
IC 29-3-9-6.5
Accounting standards and procedures
Sec. 6.5. (a) This section applies to an accounting described under
section 6 of this chapter that is filed:
(1) in a court that requires an accounting; and
(2) by a guardian for a protected person:
(A) whose:
(i) annual gross income is not more than one hundred
eighty-five percent (185%) of the federal income poverty
level as determined annually by the federal Office of
Management and Budget under 42 U.S.C. 9902; and
(ii) total assets are worth fifteen thousand dollars
($15,000) or less; or
(B) who has an annual gross income and total assets of any
amount, if the guardian does not have powers concerning the
estate of the protected person.
(b) The court shall establish standards for the type of information
required to be reported in an accounting described in subsection (a).
(c) Except as provided in subsection (d), the accounting described
in subsection (a) is not required to be filed by an attorney for the
guardian.
(d) The court may order that the guardian hire an attorney to assist
the guardian in filing the accounting described in subsection (a) if the
court determines that an accounting filed by the guardian does not
conform to the standards established by the court under this section.
As added by P.L.265-1995, SEC.2.
IC 29-3-9-7
Compromise of claim; petition to court; settlement
Sec. 7. (a) Whenever it is proposed to compromise any claim by
or against a protected person or the protected person's property, the
court, on petition of the guardian, may enter an order authorizing the
compromise to be made if satisfied that the compromise will be in
the best interest of the protected person.
(b) Whenever a minor has a disputed claim against another
person, whether arising in contract, tort, or otherwise, and a guardian
for the minor and the minor's property has not been appointed, the
parents of the minor may compromise the claim. However, before the
compromise is valid, it must be approved by the court upon filing of
a petition requesting the court's approval. If the court approves the
compromise, it may direct that the settlement be paid in accordance
with IC 29-3-3-1. If IC 29-3-3-1 is not applicable, the court shall
require that a guardian be appointed and that the settlement be
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delivered to the guardian upon the terms that the court directs.
As added by P.L.169-1988, SEC.1.
IC 29-3-9-8
Supplementary orders
Sec. 8. At any time after the appointment or issuance of a
protective order, the court on its own motion or on the petition of the
protected person or other person approved by the court, in addition
to its authority under IC 29-3-8-8, may give the instructions and
make the amendatory and supplementary orders that the court finds
appropriate.
As added by P.L.169-1988, SEC.1.
IC 29-3-9-9
Expenses of proceedings
Sec. 9. (a) Whenever a guardian is appointed for an incapacitated
person or minor, the guardian shall pay all expenses of the
proceeding, including reasonable medical, professional, and
attorney's fees, out of the property of the protected person.
(b) The expenses of any other proceeding under this article that
results in benefit to the protected person or the protected person's
property shall be paid from the protected person's property as
approved by the court.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.77.
IC 29-3-9-10
Attorney of record for guardian
Sec. 10. The attorney of record for a guardian continues as such
until the termination of the guardianship or the attorney's withdrawal,
whichever occurs first, as approved by the court.
As added by P.L.169-1988, SEC.1.
IC 29-3-9-11
Investigation and report concerning minor or protected person
Sec. 11. The office of the secretary of family and social services
shall investigate and report to the court concerning the conditions
and circumstances of a minor or an alleged incapacitated adult or
protected person who is an adult and the fitness and conduct of the
guardian or the proposed guardian whenever ordered to do so by the
court.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989,
SEC.78; P.L.2-1992, SEC.794; P.L.4-1993, SEC.261; P.L.5-1993,
SEC.274; P.L.145-2006, SEC.169; P.L.146-2008, SEC.531;
P.L.128-2012, SEC.20.
IC 29-3-9-12
Guardianship of property of minor or incapacitated adult;
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compliance with demand or instruction; enforcement proceedings;
awards
Sec. 12. (a) This section applies only to a guardianship of the
property of a minor or an incapacitated adult.
(b) If a third party fails to comply with a guardian's written
demand or instruction that:
(1) was issued within the scope of the guardian's authority; and
(2) is consistent with this article;
the guardian may bring an enforcement proceeding to compel
compliance in the court having jurisdiction over the guardianship.
(c) A court may award attorney's fees and costs to the guardian in
an enforcement proceeding under subsection (b), if the person
indebted to the guardianship estate or holding property of the
guardianship estate:
(1) acted in bad faith in failing to comply with the guardian's
written demand or instruction; or
(2) refused to respond within thirty (30) business days after
receiving the guardian's written demand or instruction, if the
demand or instruction is consistent with this article.
(d) A court may, upon notice and hearing, award attorney's fees
and costs to an estate bringing an enforcement proceeding under
subsection (a) against an insurer regulated under IC 27 if:
(1) the insurer failed to respond under IC 27 after receiving a
written demand or instruction from the personal guardian; and
(2) the written demand or instruction is consistent with this
article.
As added by P.L.51-2014, SEC.7. Amended by P.L.83-2014, SEC.5.
IC 29-3-9-12.2
Petition for authority to petition for dissolution, legal separation,
or annulment; granting petition; considerations; petition not
required for certain actions
Sec. 12.2. (a) If a guardian of an incapacitated person determines
that:
(1) a dissolution of the incapacitated person's marriage;
(2) a legal separation of the incapacitated person and the
incapacitated person's spouse; or
(3) an annulment of the incapacitated person's marriage;
is in the best interests of the incapacitated person, the guardian shall
petition the court to request the authority to petition for a dissolution
of marriage, a legal separation, or an annulment of marriage on
behalf of the incapacitated person.
(b) The petition to request authority described in subsection (a)
must set forth the following:
(1) The purpose for petitioning for dissolution of marriage,
legal separation, or annulment of marriage.
(2) The names and addresses of all the following:
(A) The incapacitated person's spouse.
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(B) If the incapacitated person has adult children, any adult
children of the incapacitated person who are not guardians
of the incapacitated person.
(C) If the incapacitated person is a minor, a parent of the
incapacitated person whose parental rights have not been
terminated.
(c) A guardian that petitions the court to request authority as
described in subsection (a) shall provide a copy of the petition, on or
before the date the petition is filed, to all the following:
(1) The individuals listed in subsection (b)(2).
(2) Any other interested person as ordered by the court.
(d) The court shall:
(1) set a date for a hearing on the petition to request authority
described in subsection (a);
(2) notify:
(A) all the parties; and
(B) any other individual listed in subsection (c);
of the hearing at least thirty (30) days before the hearing; and
(3) hold a hearing on the petition to request authority described
in subsection (a).
(e) If the court determines by clear and convincing evidence that
petitioning for:
(1) a dissolution of the incapacitated person's marriage;
(2) a legal separation of the incapacitated person and the
incapacitated person's spouse; or
(3) an annulment of the incapacitated person's marriage;
is in the best interests of the incapacitated person, considering the
totality of the circumstances, including the desire and interests of the
spouse in remaining married, the court shall grant the petition and
authorize the guardian to petition for dissolution of marriage, legal
separation, or annulment of marriage on behalf of the incapacitated
person.
(f) In making a determination under subsection (e), the court shall
consider the risk of harm to the incapacitated person's physical or
mental health, safety, or property if the court does not grant the
petition and authorize the guardian to petition for dissolution of
marriage, legal separation, or annulment of marriage on behalf of the
incapacitated person.
(g) In making a determination under subsection (e), the court shall
also give appropriate weight to evidence of:
(1) the incapacitated person's intent or preferences; or
(2) a prior decision of the incapacitated person;
for or against a dissolution of marriage, a legal separation, or an
annulment of marriage. The court may reduce the weight given to
evidence of the intent, preferences, or prior decisions of the
incapacitated person if the court concludes, from all of the relevant
facts and circumstances, that the passage of time, the relevant
circumstances at the time of a prior statement or action by the
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incapacitated person, or changed circumstances after a prior
statement or action make the prior statement or action less reliable
evidence of the incapacitated person's best interests and current
preferences. The court may give no weight to evidence considered
under this subsection that the court concludes is unreliable evidence
of the incapacitated person's best interests and current preferences.
(h) This section does not require a guardian of an incapacitated
person to file a petition under this section in order to:
(1) defend the incapacitated person against a petition for
dissolution, legal separation, or annulment of marriage that was
filed before or after the filing of the petition for guardianship;
or
(2) finalize:
(A) a dissolution of the incapacitated person's marriage;
(B) a legal separation between the incapacitated person and
the incapacitated person's spouse; or
(C) an annulment of the incapacitated person's marriage;
if the petition for dissolution of marriage, legal separation, or
annulment of marriage was filed by the incapacitated person or
the incapacitated person's spouse before the appointment of the
guardian.
As added by P.L.83-2014, SEC.6.
IC 29-3-9-13
Filing petition for dissolution, legal separation, or annulment in
guardian's county of residence
Sec. 13. (a) This section applies if a court has authorized a
guardian to petition for dissolution of marriage, legal separation, or
annulment of marriage on behalf of an incapacitated person under
section 12.2 of this chapter.
(b) A guardian may file a petition for dissolution on behalf of an
incapacitated person under IC 31-15-2 in the county where the
guardian resides in accordance with IC 31-15-2-6.
(c) A guardian may file a petition for legal separation on behalf of
an incapacitated person under IC 31-15-3-4 in the county where the
guardian resides in accordance with IC 31-15-3-6.
(d) A guardian may file an action to annul a marriage under
IC 31-11-10 in the county where the guardian resides in accordance
with IC 31-11-10-4.
As added by P.L.83-2014, SEC.7.
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