§ 29-3-5-1 — Petitions for appointment of a guardian or to have a protective order issued; requirements; notice and hearing; conduct of hearing; participation by department of child services

(a) Any person may file a petition for the
appointment of a person to serve as guardian for an incapacitated
person or minor under this chapter or to have a protective order issued
under IC 29-3-4. The petition must state the following:
(1) The name, age, residence, and post office address of the
alleged incapacitated person or minor for whom the guardian is
sought to be appointed or the protective order issued.
(2) The nature of the incapacity.
(3) The approximate value and description of the property of the
incapacitated person or minor, including any compensation,
pension, insurance, or allowance to which the incapacitated
person or minor may be entitled.
(4) If a limited guardianship is sought, the particular limitations
requested.
(5) Whether a protective order has been issued or a guardian has
been appointed or is acting for the incapacitated person or minor
in any state.
(6) The residence and post office address of the proposed
guardian or person to carry out the protective order and the
relationship to the alleged incapacitated person of:
(A) the proposed guardian; or
(B) the person proposed to carry out the protective order.
(7) The names and addresses, as far as known or as can
reasonably be ascertained, of the persons most closely related by
blood or marriage to the person for whom the guardian is sought
to be appointed or the protective order is issued.
(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 or the protective order is issued.
(9) The names and addresses of any other incapacitated persons
or minors for whom the proposed guardian or person to carry out
the protective order is acting if the proposed guardian or person
is an individual.
(10) The reasons the appointment of a guardian or issuance of a
protective order is sought and the interest of the petitioner in the
appointment or issuance.
(11) A description of the petitioner's efforts to use less restrictive
alternatives before seeking guardianship, including:
(A) the less restrictive alternatives for meeting the alleged
incapacitated person's needs that were considered or
implemented;
(B) if a less restrictive alternative was not considered or
implemented, the reason that the less restrictive alternative was
not considered or implemented; and
(C) the reason a less restrictive alternative is insufficient to
meet the needs of the alleged incapacitated person.
(12) The name and business address of the attorney who is to
represent the guardian or person to carry out the protective order.
(13) Whether a child in need of services petition or a program of
informal adjustment has been filed regarding the minor for whom
a guardianship is being sought, and, if so, whether the case
regarding the minor is open at the time the guardianship petition
is filed.
(b) Notice of a petition under this section for the appointment of a
guardian or the issuance of a protective order and the hearing on the
petition shall be given under IC 29-3-6.
(c) After the filing of a petition, the court shall set a date for a
hearing on the issues raised by the petition. Unless an alleged
incapacitated person is already represented by counsel, the court may
appoint an attorney to represent the incapacitated person.
(d) A person alleged to be an incapacitated person must be present
at the hearing on the issues raised by the petition and any response to
the petition unless the court determines by evidence that:
(1) it is impossible or impractical for the alleged incapacitated
person to be present due to the alleged incapacitated person's
disappearance, absence from the state, or similar circumstance;
(2) it is not in the alleged incapacitated person's best interest to be
present because of a threat to the health or safety of the alleged
incapacitated person as determined by the court;
(3) the incapacitated 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 incapacitated
person was not incapacitated as a result of a mental condition that
would prevent that person from knowingly and voluntarily
consenting; or
(4) the incapacitated person has knowingly and voluntarily
waived notice of the hearing and at the time of such waiver the
incapacitated person was not incapacitated as a result of a mental
condition that would prevent that person from making a knowing
and voluntary waiver of notice.
(e) A person alleged to be an incapacitated person may present
evidence and cross-examine witnesses at the hearing. The issues raised
by the petition and any response to the petition shall be determined by
a jury if a jury is requested no later than seventy-two (72) hours prior
to the original date and time set for the hearing on the petition.
However, in no event may a request for a jury trial be made after thirty
(30) days have passed following the service of notice of a petition.
(f) Any person may apply for permission to participate in the
proceeding, and the court may grant the request with or without hearing
upon determining that the best interest of the alleged incapacitated
person or minor will be served by permitting the applicant's
participation. The court may attach appropriate conditions to the
permission to participate.
(g) A court shall notify the department of child services of a hearing
regarding the guardianship of a minor under this section if a:
(1) child in need of services petition has been filed regarding the
minor; or
(2) program of informal adjustment involving the minor is
pending.
The department of child services may participate in a hearing regarding
the guardianship of a minor described in this subsection.

Legislative History

As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989, SEC.68; P.L.6-2010, SEC.10; P.L.162-2011, SEC.2; P.L.68-2019, SEC.2.