Adult Guardianship Registry

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In 2013, the Indiana General Assembly provided funding to establish the Adult Guardianship Office under the Indiana Supreme Court. This office serves as a resource for courts and the general public on issues related to adult guardianship. It also administers grant funding to increase the number of volunteer-based guardianship programs throughout the state. In 2016, more than $800,000 in grant funding was awarded to 14 volunteer-based guardianship programs that serve 28 counties. Currently, these programs serve more than 450 incapacitated adults in Indiana who cannot make personal and financial decisions regarding their care.

In 2016, Indiana implemented a new form to be filed with all new guardianship cases: the Guardianship Registry Form. This form has been used to develop an online guardianship registry. It provides non-confidential information to the public, such as the name of the protected person, name of the guardian, protected person’s birth year, whether the guardianship case is active or expired, when letters of guardianship were issued, county issuing the guardianship, and guardianship cause number. Previously, each court had its own individual process for tracking and monitoring guardianship cases. The lack of statewide uniformity in this process made it difficult to provide statistical data for Indiana. Therefore, the Division of State Court Administration provided grant funds to implement this new Guardianship Registry process.

As each new petition for guardianship is filed in Indiana, the case is entered and maintained in the Guardianship Registry. When crucial case benchmarks are reached, alerts are provided to the court via the Registry to confirm that the proper documentation and actions are taken to ensure the guardianship remains in compliance with state statutes. The Guardianship Registry has many benefits:

  • tracks and maintains guardianship cases, making records more accurate, timely, and in compliance with state statutes
  • provides useful and timely information to the public on the current status of guardianship cases throughout the state
  • alerts courts of important case benchmarks, accounting and inventory due dates, required Guardian Ad Litem appointments, and case expiration
  • generates Court orders and guardianship letters
  • a vital tool for hospitals, banks, law enforcement, mental health facilities, government agencies, and other service providers who are often placed in emergency situations where knowing whether someone is under a guardianship and who needs to be contacted is critical
  • an important tool for courts by tracking the number and types of guardianship cases filed in each jurisdiction

You can access the Guardianship Registry here. If you have a minor, disabled, or elderly loved one who may be in need of guardianship services, please contact our office.

Source: http://www.in.gov/judiciary/admin/3169.htm

VLP Receives Pro Bono Service Award

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The Volunteer Lawyer Program of Northeast Indiana received a pro bono service award in recognition of its bankruptcy program. The award was presented to the VLP at the 66th Annual 7th Circuit Bar Association meeting held in Indianapolis on May 1. The bankruptcy panel that received the award comprises over 25 attorneys committed to helping people without adequate funds achieve equal access to quality legal representation.

The award presentation and dinner was held at the JW Marriott in Indianapolis in conjunction with the 7th Circuit Judicial Conference. Attendees were honored to hear the following featured speakers: Hon. Elena Kagan, Associate Justice, Supreme Court of the United States and Eva Mozes Kor, survivor of the Holocaust and founder of the CANDLES Holocaust Museum and Education Center. Ms. Ruth de Wit, Executive Director of the Volunteer Lawyer Program, gratefully accepted this prestigious award on behalf the volunteers and in recognition of the countless hours of pro bono service provided over many years in Northeast Indiana.

The Volunteer Lawyer Program of Northeast Indiana serves families and individuals at 200% or below the federal poverty guidelines in many areas of civil law. Over 200 volunteer attorneys representing northeast Indiana make up the panels of legal expertise, including our very own Tracy Troyer and Leah Good. Tracy and Leah specifically help individuals in services of estate administration, estate planning, and guardianship.

Those seeking assistance from the VLP must first call the office to see if they qualify for the program. Qualification is based on household income and assets, case type, and availability of volunteer attorneys. Callers should be prepared to provide this personal financial information when they call.  Once a client qualifies for the program, he/she will need to provide the VLP with the necessary financial and legal documents required for the successful completion of the qualification process. Staff members from the VLP then attempt to place the client with a volunteer attorney.

For more information, check out their website.

Standby Guardian Designation

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The Indiana legislature has created a process for designating a “standby guardian.” The goal of a standby guardian is to prevent any gap between the point of incapacity or death and the point at which the Court actually appoints a guardian for minor children. A standby guardian will temporarily care for the minor children if the parents become incapacitated or die. Parents can designate a standby guardian by signing a properly drafted document in the presence of a notary. The designation becomes effective upon the parents’ death or incapacity. It lasts for ninety days.

In its recent amendment, Senate Bill 371 specifies that a Court must consider a standby guardian designation when appointing a guardian. However, for purposes of a guardianship appointment, a person designated as a standby guardian is second in priority to a person designated in a durable Power of Attorney. Learn more about guardianships from our other articles:

Choosing a Guardian for Your Children

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Determining who will serve as the legal guardian of your minor children is a huge decision. It is also a great responsibility for whoever agrees to be the guardian of your children’s health and well-being. The guardian of a minor is an adult who is legally responsible for the needs of your children until they reach legal age, eighteen. Appointing a guardian over your children is a legal action. Your children’s godparents do not automatically become guardians upon your death. You have to put the guardianship provision in writing in your Will. The guardian will be responsible for items like food, clothing, and shelter. He/she will also be responsible for managing any assets in the child’s name and for providing things such as education and healthcare. 

Choosing a guardian is difficult because of the responsibilities involved. Obviously, you want to choose someone who will care for your family the way you would. However, you also need to make sure you choose a person who will follow through on the commitment.  Consider some of the following factors:

Age: Do you want the person taking care of your children to be around the same age as you? How much experience does this person have? Is this person emotionally stable and able to care for your children during the critical time of your death?

Lifestyle: If you want your children raised in a certain religion, what are his/her religious views? Will it be a healthy and upbuilding environment for your children? Does the person have similar ideals as you when it comes to values and child rearing?

Child-rearing skills: Is the person good with kids? Does the person know where to find and seek help as needed? Will the person be able to address the emotional and practical needs of your children that result from your death?

Marital status: Do you want your children raised by two parents? Is the personality and flexibility of the guardian more important to you?

Compatibility: How well do your children get along with the proposed guardian? Do they like and respect this person? How do they act around this person?

Money skills: How well does this person manage money? Will he/she use the funds wisely to benefit your children?

Location: Is the person going to move into your home? Does he/she have a home that is well-suited for children? Is the person flexible to move or take time off work to focus on your children?

You should also consider how much you want to impose your expectations on the people who will become your children’s guardian. It might be a good idea to come up with the priorities you want for your children and a list of people who could potentially be good guardians. You should then approach these people and ask whether they are willing to serve as guardian under the conditions you lay out. You do not want to name someone without asking because he/she may refuse. Always discuss the expectations and responsibilities with a potential guardian before naming him/her in your Will. You may even want to put these expectations in writing so that you are both clear about your wishes. It is also a good idea to name an alternate guardian in case the person you initially name is unable to fulfill that responsibility. It may be that your initial guardian dies before you or life circumstances (such as health or a job transfer) render it impossible for him/her to serve. 

Senior Savings Protection Act

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There is a new law called “The Senior Savings Protection Act.”  On July 1st, Indiana enacted this law which creates new rules and responsibilities for individuals associated with a broker-dealer in a supervisory, compliance, or legal capacity.  The Act requires those individuals to take action in certain situations when working with a client who is a financially endangered adult.

A financially endangered adult is defined as someone who is age 65 or older or a younger person who is not able to manage his/her property because he/she is mentally ill, intellectually disabled, or suffering from some other type of incapacity, such as dementia.  The triggering events requiring the individual to take action are when he/she has reason to believe financial exploitation of the financially endangered adult has occurred, has been attempted in the past, or is currently being attempted.

If there is financial exploitation, then the individual is required to make a report to Adult Protective Services or to a law enforcement agency and also notify the securities commissioner.  After these mandatory notifications are made, the individual may also choose to notify the adult’s immediate family members, legal guardian, trustee, attorney-in-fact, or others who have been previously agreed to in a customer agreement.

Furthermore, the individual can refuse to make disbursements from the adult’s account or from an account of which the adult is a beneficiary if he/she has reason to believe the disbursements will result in financial exploitation.  If a disbursement is refused, the individual must notify all parties authorized to transact business on the account as well as Adult Protective Services.  However, if the individual believes a party authorized to transact business on the account is involved in the exploitation, that person is not entitled to notification.

An individual is immune from civil liability when acting in good faith under this new law.  The commissioner will be making training resources available on these issues on the Secretary of State’s website by September of next year.

Guardianship Registry Forms

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The State of Indiana has a new requirement for guardianship proceedings: Guardianship Registry Forms. When a person files a petition for a guardianship, he/she must also file this Guardianship Registry Form with the Court.  The purpose of the form is to aid law enforcement and health care facilities when they are assisting an individual under guardianship.

These forms request a variety of information pertaining to the petitioner, the guardian, and the person who is in need of a guardianship (“protected person”). The first section asks for more information about the potential guardian. It asks for things like: first and last name, date of birth, race, gender, address, phone number, email, attorney name, and relationship to protected person. The next section requests information about the protected person: first and last name, gender, race, eye color, hair color, height, weight, scars, marks, tattoos, address, phone number, email, attorney name, guardian ad litem name, and language. The third section requests information about the guardian. Often times, the guardian and the petitioner are the same person so the information requested is the same for both. There is an option to check if the guardian and petitioner are the same. The Guardianship Registry Form requests additional information about where the individual lives and close relatives of the protected person.

Case Study: Power of Attorney – When an Accounting is Requested

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Indiana statute requires that the attorney-in-fact must keep complete records of all transactions entered into by the attorney-in-fact on behalf of the principal for six years or until the records are delivered to the successor attorney-in-fact. The attorney-in-fact must present an accounting to the Court if it is ordered. He/she must also render an accounting to the following persons if they request it: the principal, guardian of the principal, child of the principal, personal representative of the principal’s estate (if the principal has died), or an heir or legatee of the principal. A recent Court case has clarified this statute when it comes to a child requesting an accounting.

In the case, Natalie had four sons. Her son, William, was serving as attorney-in-fact for Natalie since 2011. In November 2012, Natalie was diagnosed with early Alzheimer’s type dementia. One of her sons, Jeffrey, requested an accounting of Natalie’s finances from William. William refused to deliver a copy of the accounting to Jeffery. Therefore, Jeffery filed a Mandamus Action to compel the attorney-in-fact to render the accounting. The trial court denied Jeffrey’s Mandamus action. It found that although Jeffrey was the child of the principal and requested an accounting, he did not qualify to receive an accounting because the Power of Attorney was created prior to July 1, 2012. The Court of Appeals reversed and remanded. The Court found that the statute allows a child of the principal to receive an accounting if he/she requests it. It also found that the effective date of the Power of Attorney is not relevant to who may receive an accounting.

In all future situations then, the attorney-in-fact must provide an accounting to the person who requests it (if the person is from the list mentioned in the statute). The date of the Power of Attorney does not affect a person’s request for an accounting. If you are serving as attorney-in-fact for someone, you must keep complete and accurate records of all transactions you take on behalf of the principal.