Temporary guardianships are designed to address true emergency situations. Yet, they are over-used and misused. Let’s take a look at the law surrounding temporary guardianships to gain a better understanding of when and how they should be used.
Background
Indiana Code section 29-3-3-4 is the temporary guardianship statute. It states, in essence, that a temporary guardianship can be granted if (1) an emergency exists; (2) the welfare of the incapacitated person or minor requires immediate action; and (3) no other person appears to have authority to act in the circumstances. Ind. Code § 29-3-3-4(a). Temporary guardianships may only be granted after notice and hearing “unless it is alleged and found by the court that immediate and irreparable injury” may result before such a hearing can be held. Id. Further, the statute dictates that “the court shall order only the powers that are necessary to prevent immediate and substantial injury or loss to the person or property of the alleged incapacitated person.” Ind. Code § 29-3-3-4(d).
In other words, a temporary guardianship can only be issued if there is an emergency, after notice and hearing, and the order should specifically detail the powers of the temporary guardian. Notice and hearing can only be avoided if there is a threat of immediate and irreparable injury.
Historically, it was very easy to obtain a temporary guardianship in Indiana: a practitioner walked into the judge’s chambers and walked out with a temporary guardianship order. This practice changed in 2015 when the Commission on Judicial Qualifications issued Advisory Opinion 1-15. This Opinion reminded judges that they must follow Indiana Rule of Trial Procedure 65(B) when granting ex parte petitions for temporary guardianships, otherwise they may be in violation of the Code of Judicial Conduct.
In practice, this means that, at least in Marion County, every temporary guardianship petition is set for hearing, usually within 5-7 days.
A few questions remain: what is an emergency, what about the guardian ad litem, and what type of notice must be give before the temporary guardianship hearing?
What is an emergency?
This is the chief substantive problem we are all faced with as practitioners in light of the Commission’s advisory opinion. It remains clear that whether the facts support an “emergency” under Ind. Code § 29-3-3-4(a)(2) is within the discretion of the Court.
The guardianship code itself defines an emergency in language similar to Trial Rule 65(B): “immediate and irreparable injury to the person or injury, loss, or damage to the property of the alleged incapacitated person or minor may result before the alleged incapacitated person or minor can be heard in response to the petition.” I.C. 29-3-3-4(a).
However, it’s unnerving to consider what the Commission opines, as an example, is not an emergency:
Several of the more recent complaints before the Commission involve petitions in which the alleged emergency is merely the acting guardian’s inability to obtain health insurance or Medicaid benefits for a child without a guardianship order, or the guardian’s inability to enroll a child in school. Although it is important for children to have access to health care and education, neither a lack of insurance coverage nor an inability to be enrolled in school are emergencies which would – or should – override the custodial parents’ rights to be heard.
Commission on Judicial Qualification, Advisory Opinion 1-15
What!? If your client doesn’t get a temporary guardianship before the beginning of the following month so their temporary guardian can duly marshal and spend down assets for the alleged incapacitated person to qualify for Medicaid benefits, thereby needlessly incurring thousands of dollars in nursing home costs that would otherwise be covered by Medicaid and that’s not an emergency? From a practical standpoint, this does not make sense.
Plenary Powers in Temporary Guardianships
The worse habit of attorney practitioners in my mind is the practice of seeking a temporary guardianship with plenary powers, which is contrary to the specific language of the temporary guardianship statute:
(d) A temporary guardian appointed under this section has only the responsibilities and powers that are ordered by the court. The court shall order only the powers that are necessary to prevent immediate and substantial injury or loss to the person or property of the alleged incapacitated person or minor in an appointment made under this section.
I.C. 29-3-3-4(d). Emphasis added.
I think it’s fair to assume that most of the ethical complaints giving rise to the advisory opinion, at least as they relate to adult guardianships, stem from the fact that too often the temporary guardian powers are not confined to the emergency.
If you think there is an emergency, articulate the emergency with precision, and seek only powers through the temporary guardianship to address that emergency. But don’t be intimidated out of filing such a petition by the tenor of the advisory opinion if you and your client truly believe an emergency exists.
What about the guardian ad litem?
A guardian ad litem is required in all adult guardianship cases unless the alleged incapacitated person is adequately represented by their own counsel. I.C. § 29-3-2-3.[1] But, because there is no separate funding for guardians ad litem, the courts are left to pay for such services out of their general operating budgets. As a practical matter, this budgetary constraint limits what can reasonably be expected of a part-time guardian ad litem.
It is not clear that a guardian ad litem must be present on a hearing for temporary guardian. The statute is not clear, but the advisory opinion implies that a guardian ad litem should be involved, and it would seem to be in the spirit of due process that one be involved. However, it’s always worth reminding that the temporary guardianship process is not the same as a regular guardianship process. It is a unique remedy afforded by a separate section of the guardianship and as such I think it can be reasonably argued that a guardian ad litem is not, technically, required in a temporary guardianship proceeding.
What about notice?
The sense with temporary guardianships is that they are happening on the fly because, well, there’s an emergency of some sort. Really, though, there are two types of emergencies, it seems. First, there’s the situation that is such an emergency that the relief requested can’t wait for notice and hearing (let’s call it a real emergency). In such cases, the court has the discretion to grant the temporary guardianship on the spot. Second, there’s the situation that while it is an emergency of some sort, it can wait for a few days before a hearing can be scheduled (let’s call it a kinda emergency). Obviously, the form and content of notice only becomes relevant with the kinda emergency.[2]
- Content of the Notice
There appears to be no question that the content of the notice must substantially conform to the language set forth in Ind. Code § 29-3-6-2, even though that notice is really designed to convey the nature of the hearing on a regular guardianship rather than a temporary guardianship where the powers of the prospective guardian will be constrained to specific powers necessary to address the emergency. So, while the statutory form should be used, I think it best to include some additional language to convey the fact that it’s a temporary guardianship that’s sought.
- Method and Timing of Notice
There’s no guidance provided under the Code on the method and timing of notice of hearings on temporary guardianship. Certainly, Ind. Code § 29-3-6-1 requires notice be given by regular United States mail, but that appears to be for notices on regular guardianship hearings. Besides, it would not seem meaningful to place a notice in the regular mail for a hearing that’s to happen three or four days later. There’s also no guidance provided under Trial Rule 65(B).
Surely, fealty to due process principles requires as prompt delivery of notice as possible. Hand-delivery would make the most sense, but fax or email may also be deemed appropriate. In any event, because the law is not clear, best practices would also include following up any method of delivery, other than personal service of the notice, with placing the notice in the regular United States Mail.
Remember that Trial Rule 65(B) requires that the petitioner’s attorney “certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting his claim that notice should not be required.” Forgetting the inherent contradiction in this language, this certification appears to be required as a means of convincing the court that you’ve done the best you could to give the alleged incapacitate person and other interested persons reasonable notice of the temporary guardianship hearing.
Conclusion
As all practitioners know, the procedures that occur in each county will vary drastically. It is up to the practitioner to not only follow local rules but also follow the letter of the law. Remember that a guardianship – even a temporary one – is a drastic reduction in the constitutional rights of a person. Accordingly, we must afford everyone due process protections including notice, hearing, and a limited set of guardianship powers.
[1] If the courts and Commission are truly concerned about due process in the guardianship context, as I think they are, then it’s worth reminding that the mandatory requirement of guardians ad litem is frequently ignored. “Statewide, guardians ad litem were appointed to advocate on behalf of the prospective wards less than half of the time. Far fewer wards have legal advocates appointed (20%) when focusing on the majority of counties in which persons appointed as guardians ad litem contact with the parties outside of the courtroom, and conduct full investigations prior to the guardianship hearing. Taken together, appointment of legal representation by a guardian ad litem is not typical in Indiana, leaving proposed wards vulnerable and ill-equipped to protect their rights.” Who’s Overseeing the Overseers? A Report on the State of Adult Guardianship in Indiana, supra, pg. 25.
[2] This has been, in my mind, the heart of the problem all along. Can the emergency wait for a hearing with notice? Well, it depends on how far out on the calendar you’re talking. Assuming that the new procedures in Marion County – Tuesday and Thursday afternoons reserved for emergency hearings – don’t result in congested calendars, then yes, the kinda emergencies can probably be processed in a fashion that’s both timely and respectful of Constitutional principles. On the other hand, if we’re talking ten days or more, then no. If it can wait that long, I might as well simply seek a regular guardianship. This becomes a matter of triaging the nature of the emergencies being presented to the Court.
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