Any action to establish a guardianship must be filed in the Probate Court of the county where the protected person lives.
First, a Petition to Appoint a Guardian must be filed with the Court. This petition begins the guardianship process, along with the payment of Court costs to open the guardianship. The petition must provide the Court with information about the alleged protected person like address, next of kin, reason for incapacity, value of assets, and name and address of the institution where the protected person lives. The petition must also provide information about the proposed guardian like name, address, lawyer’s name and address, and whether the proposed guardian is serving as guardian for anyone else.
When the Petition to Appoint a Guardian is filed with the Court, notice must be given to the incapacitated person, his/her spouse, and his/her adult children (or parents if no adult children). If he or she has no spouse, adult children, or parents, then the notice needs to go to at least one person most closely related by blood or marriage to the incapacitated person. Notice also needs to go to any person that has care and custody of the incapacitated person, any person serving as Power of Attorney, and any other person that the Court directs.
Once notice has been provided to all necessary parties, the Court will set a hearing to determine if the individual is incapacitated and in need of a guardianship and to decide who is most qualified to serve as the guardian. The incapacitated person must be present for the hearing unless the Court finds that it is impossible or impractical or if coming to the hearing would pose a threat to his or her health.
Before the hearing, the Court will typically appoint a Guardian ad Litem to serve as attorney for the incapacitated person. At the hearing, the Court must be presented with proof that the individual is incapacitated. The Court will also consider whether the proposed guardian is suited to serve as guardian, according to state law and other factors.
If the Court finds that the proposed guardian is suitable, then the guardian must accept the appointment, file an oath, and obtain a bond (as required by the Court). The clerk then issues letters of guardianship, giving the guardian the authority to act on behalf of the incapacitated person.
The guardian may be removed by the Court if he or she is not doing the job properly or becomes unable or unwilling to serve. The guardianship can be terminated when the Court finds that the incapacitated person is no longer incapacitated. It also terminates when the incapacitated person dies or moves to another state.
Our attorneys have over 35 years combined experience in guardianship matters. We can help you through the Court process to establish guardianship. Simply schedule an appointment with one of our attorneys. You can find more information at Guardianship in Indiana and Serving as Guardian - FAQ.