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Emergency guardianship, also known as a “Temporary Guardianship” in the Indiana statutes, is used in extreme situations where the usual safeguards required for a full guardianship cannot be followed due to the urgency of the circumstances. It should be considered a rare course of action; however, some attorneys resort to it as a quick way to get their client’s foot in the door of guardianship to take some sought-after immediate action.
Typically, when pursuing a guardianship, various procedures, such as notifying all relevant parties, obtaining consent, and providing medical reports, are mandatory. However, in emergency situations—where there is an imminent threat to the financial or physical health or safety of the person at risk—these requirements may be temporarily bypassed.
If the situation is too critical to wait for the full guardianship process, a sworn petition can be filed with the court to request the immediate appointment of a temporary guardian. This allows for swift action to prevent harm. Indiana Code §29-3-3-4 allows this where, no guardian has been appointed, an emergency exists, the welfare of the person requires immediate action, and no other person appears to have the authority to act in the circumstances.
Once the immediate risk is managed, the remaining guardianship procedures must be completed to transition the temporary guardianship into a permanent arrangement, if needed. The temporary guardianship lasts only ninety (90) days, which can be extended for another 90 days – but only upon a showing of “good cause” to the court with jurisdiction.
The statute does not limit who can file for a temporary (a/k/a “emergency”) guardianship. In practice, it could be anyone who is responsible for the care of someone else, a concerned relative, or possibly even a state agency. Who files the petition and who gets appointed as temporary guardian may not be the same. In practice, most emergency guardianships are initiated by family members who are concerned about an imminent threat to the health or safety of their loved one, and they seek to be appointed themselves.
To establish emergency guardianship, Indiana’s statute requires that:
If the court determines that you have satisfactorily established that all of these conditions have been met, the judge can appoint you as “Temporary Guardian” for up to 90 days. (This period of temporary guardianship can be extended only upon the filing of a petition and a hearing – with notice to other interested parties who may object). To establish that an emergency exists, you’ll need to provide as much evidence as possible to demonstrate both the severity and the likelihood of harm to the individual you’re looking to care for. This evidence may include:
Documentation from healthcare professionals detailing the person’s condition and the imminent risk to their health or safety.
Testimonies from witnesses, family members, or caregivers that outline the urgent nature of the situation and the potential harm that could occur without immediate intervention.
Any other evidence that explains why waiting for a regular guardianship would cause irreversible harm.
The goal is to convince the court that the situation is dire enough to bypass the usual due process, and prompt action is necessary to prevent serious harm. Without sufficient evidence, the court may deny emergency guardianship and require a standard guardianship application, which takes longer. Further, the court should limit the powers of the temporary guardian to those needed to address the “emergency” only. Even where those circumstances exist, the court appoints someone as temporary guardian, it law requires actual notice to be sent on all persons who would otherwise be required to be given notice in a non-emergency guardianship.
The process for obtaining emergency guardianship in Indiana involves several key steps, aiming to balance the need for immediate action with the protection of the individual’s rights.
A petition is filed with the court, requesting the appointment of an emergency guardian. This document outlines the reasons for the emergency and the need for immediate action.
The petition must be accompanied by a sworn statement made under oath, detailing the nature of the harm, the likelihood of the harm occurring, and the seriousness of its impact on the individual.
Any proposed safeguards that would limit the scope of the emergency guardianship may be included to demonstrate that the guardianship would not overstep its bounds.
The petition should clearly state that the guardianship is intended to be temporary and will last only until formal proceedings can take place. Courts may feel more comfortable granting emergency guardianship if it’s limited in scope and duration.
An emergency guardianship could be granted within a couple of days, depending on the nature of the emergency, the length of time it takes to gather to draft the petition and provide the necessary evidence of an emergency situation, and the availability of the judge.
An emergency guardian in Indiana has the same general duties as a regular guardian, but with a specific focus on addressing the immediate threat that justified their appointment. These duties ensure the guardian acts in the best interest of the protected person during the temporary guardianship period and include:
The emergency guardian must take immediate steps to prevent the harm that served as the basis for the emergency guardianship.
Like a regular guardian, the emergency guardian is responsible for the care and well-being of the protected person, which may include managing personal or financial affairs as needed.
As mentioned above, the Indiana Statute governing temporary guardianships for emergency situations still requires the petitioner to proceed with sending out notices to all persons who would otherwise be entitled to notice of a regular guardianship. This is to be done upon filing the petition, if possible, and if not possible, upon issuance of the order appointing the temporary guardian. This will allow interested parties to challenge the appointment as soon as possible, if necessary.
After addressing the immediate risk, the emergency guardian must report back to the court and advise whether continued guardianship is necessary. If so, the process for permanent guardianship should be undertaken. If not, the guardianship should be terminated and a final accounting and report to the court should be filed.
In Indiana, guardianships can be broadly categorized into two main types: (1) Guardianship of a minor; and (2) Guardianship of an incapacitated adult. These two categories simply address the different life stages where guardianship may be necessary. This ensures that both minors and incapacitated adults receive the care and protection they need.
Minors are automatically deemed legally incapacitated due to their age and inability to make certain legal decisions. Under the law of most states – including Indiana – minors (children under the age of 18) are not considered “competent” to enter into contracts or take care of themselves. Parents are typically considered to be the natural guardians of their minor children. However, if a parent is unable to care for the child, a court-appointed guardian may be needed to ensure the child’s physical and emotional well-being.
In addition, even where the parents are fit, healthy, and have custody of their children, there are situations where a guardianship may need to be set up over a minor’s “estate” rather than their “person.” For instance, where a minor inherits a large sum of money or receives a settlement from a personal injury claim, financial guardianship (or “guardianship of the estate”) may be required. Since minors lack the legal capacity to manage such funds, a guardian—often the parent—will be responsible for handling and investing the money in a separate guardianship account until the child reaches adulthood. Under Indiana law, such a guardianship over the funds will be required if the amount the child receives exceeds $10,000.00.
This type of guardianship is most commonly seen with elderly individuals who, due to physical or mental decline, are no longer able to care for themselves. In most cases, the AIC was perfectly capable of taking care of themselves and of their finances their whole lives – and did so successfully. However, at some point in the aging process, physical and mental abilities often slip to the point where this is no longer the case. A family member, often an adult child, may seek guardianship to ensure the person’s safety and well-being, particularly to prevent unintentional harm.
In other cases, we see that a child who always had mental or physical challenges reaches the age of 18 and is legally considered an adult. This person would have qualified for guardianship prior to their adulthood, but one was not needed because the parents were already serving as their custodians and natural guardians. That all changes when a child turns 18, and this often catches the parents of children with special needs off guard. For the child’s entire life, they have been communicating directly with doctors, service providers, and school officials that provide care and education for their child. Then, upon the child’s 18th birthday, they are told that they can no longer share this legally confidential information.
At this point, parents often need to seek formal guardianship to continue providing care and to have legal authority over medical, financial, and governmental matters for the now-adult child. It would serve parents of incapacitated minor children well to get in touch with a guardianship attorney before the child turns 18 so that they can start getting the paperwork in place for filing with the court once the child does become an adult.
It bears noting that just because someone needs a guardian, and someone else is willing to serve in that capacity, does not mean that they will qualify to serve, or that a judge will appoint them. There are two considerations that must be addressed before heading to court: (a) statutory restrictions; and (b) judicial discretion.
Statutory Restrictions:
Other, Discretionary, Considerations
Even if someone who plans to petition for guardianship is clear of any of the prohibited criminal convictions and is financially secure enough to qualify for and purchase a bond, there is no guarantee that the court will appoint that person. The judge always has discretion in this regard and will use his or her own judgment in making the appointment. Indiana Code §29-3-5-4 states that “The court shall appoint as guardian a qualified person or persons most suitable and willing to serve . . . “ which is subject to certain factors. Other factors that may be considered:
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Thomas Scifres of Thomas E. Scifres PC in Indiana is highly experienced in guiding families through the complexities of emergency guardianship. With years of hands-on legal practice, he understands the urgency and sensitivity involved in securing guardianship to protect loved ones in critical situations. Thomas has successfully assisted numerous clients in obtaining swift court orders, ensuring immediate action is taken to prevent harm while safeguarding the rights of all parties involved.
If you're facing an urgent guardianship situation, reach out to Thomas Scifres for the knowledgeable and compassionate representation you need.
