The Basics of Temporary Guardianship Without the Court in Indiana

Defining Temporary Guardianship

Not all guardianships need to be restricted to the level of full legal guardianship. In Indiana there is a form of guardianship which is considered a temporary guardianship. It provides a short-term solution to a guardianship problem while allowing the courts to make the final determination of whether a long-term guardianship is appropriate.
A temporary guardianship in Indiana is the legal right to control the property and/or person of a ward for a limited period of time. Unlike a standard guardianship, a temporary guardianship cannot be established for a period longer than 90 days unless explicit permission is obtained from the Court. The temporary guardianship is ideal for a situation where an injury may have occurred but more information is needed to determine whether a full guardianship is necessary. For instance , someone in a fiduciary position who has become temporarily incapacitated may need assistance with their personal affairs. This may involve a medical incapacity such as a short-term coma or perhaps a short-term incapacity due to drug or alcohol abuse or perhaps a temporary cognitive aging issue.
The temporary guardianship may be used to collect and allocate a person’s property. It may also be used to provide care of the person. However, only those specific functions ordered by the Court are transferred to the temporary guardian. That is, the functions of the temporary guardian are limited to the needs of the ward as specified in the order granting temporary guardian status.
Temporary guardianship has a number of uses in Indiana:
When a temporary guardianship is established, the temporary guardian must file regular reports to the court which review activities of the temporary guardian. The reports must reflect any changes in the condition of the ward and must outline the actions the temporary guardian took in regard to the person or property of the ward.

Is a Court Order Required?

In certain situations, temporary guardianship does not require court involvement, because a parent or legal guardian is voluntarily delegating powers to another adult. If a child lives with the adult for at least 60 days, then no matter what the legal guardianship status is, the adult may enroll the child at school. In other words, the adult does not have to petition the court in order to establish temporary guardianship over a minor child.
That means that no filing of a Petition and Petition for Temporary Guardianship along with a Notice is required. Under Indiana Code, a person who is caring for a child can consent to a child’s emergency medical treatment. This means a doctor or hospital can treat the child, for example, in case of an emergency without fear of litigation from the biological parent or parental rights being terminated.
This exception to the court process is meant to protect children. If a parent is not with the child when taking them to the doctor, for example, a hospital can take care of the child without legal proceedings or a guardianship program in place. It also allows the parent time to get to the child’s side. Sometimes, these circumstances happen during a medical emergency.
Remember, however, that these powers are limited to medical care. Schools are pretty lenient on guardianship issues, and place much of the responsibility for ensuring legal guardianship with the adult. The adult is deemed to be knowledgeable about parental responsibilities for the child.

How to Settle Temporary Guardianship Without a Court Order

Without going through a court proceeding, Indiana law provides that a parent can establish a temporary guardianship over a child by "signed consent of the parents, if both parents are living." These informal arrangements generally are not binding in Indiana. I have seen them work, though, when the document evidences an intent to give up custody and is signed by both parents and then is shown to the custodial authorities. For example, a parent can give a five-day’s notice to the school if they are going out of town, so that the school will allow the child to travel with the non-parent.
In addition, Indiana Code 31-35-2-1.5 describes how a grandparent or other relative can provide temporary care to a child for an "emergency" amount of time. That law also authorizes the Department of Child Services (DCS) to allow parents to give temporary custody to grandparents or relatives. In about half the states, this sort of arrangement can last up to six months without going to court.
These types of arrangements are best documented in writing, signed by both parents and those who are taking temporary custody. A parenting time document, similar to those approved by the Indiana Parenting Time Guidelines, can help. Additionally, the parents can sign a release for medical information to allow the temporary caregivers to provide medical care to the child and enroll them in school.

Legal Issues and Complexities

When establishing temporary guardianship of a child without a court order, there are several legal risks and challenges that must be considered. Most importantly, the guardian must be willing to assume the legal responsibility for the child. This means being able to provide for the child’s physical, mental and emotional well-being, as well as making decisions regarding their education, healthcare, and other important matters. A guardian who is not prepared or equipped to handle these responsibilities may face potential legal liabilities and challenges, should issues arise with the child’s welfare. For example, if the child is injured or faces any legal issues, the guardian might be held responsible for any harm that comes to the child . Furthermore, the absence of a court order also means that a guardian may have fewer legal protections available to them under state law. A court order creates a legal framework around the guardian’s relationship with the child, whereas temporary guardianship without court may not provide the legal backing a guardian may need in the event of a dispute or challenge. Additional challenges also arise when it comes to determining the child’s best interest. Unlike a court-appointed guardian, an individual with temporary guardianship may be challenged or disputed by the child’s legal guardians or other family members. They may have to prove to the court who appoints them as the guardian that the environment they can provide for the child is appropriate.

When to Ask for Legal Assistance

When seeking to formalize a temporary guardianship without a court order, families are advised to speak with an attorney about whether or not to formally petition the local court regarding the guardianship. Although the Indiana Probate Code allows for these informal guardianships, the process is not without risk. Many families have been burned by guardianship orders where the informal versus formal guardianship was a key contributing factor. There are two situations in particular where families should strongly consider seeking legal advice and obtaining a Court Order.
The first is when the formal guardian may reside outside the county where the individual needing a guardian (the "Respondent") is located. This situation comes up frequently where Dad lives in Austin Texas and Mom lives in Indianapolis and they have 6 adult children living around the country. As a result, Dad’s kids don’t want to have to spend 2 weeks in Indiana to perform a guardianship. Dad’s alternative of having Mom’s kids take care of the entire process can create all sorts of headaches if Mom’s children live outside the county. Having a distant guardian can be helpful in many situations but unknown family dynamics can cause great difficulty. Your family may possess these unknown issues.
Sometimes the family wants to keep the guardianship process private. Even some attorneys will use informal guardianships to avoid the time and cost of a full court guardianship. However the lack of formal notice and presence of all interested parties can create real issues down the road. For example, when did mom sign powers of attorney? Did she have the capacity to sign them? Did she sign them under undue influences? Does dad have a Will? How do we know that Dad did not replace it after Mom died? Was Dad concerned about any of these issues? Often the answer to the last question is obvious but still remains unspoken. Some patients diagnosed with Alzheimer’s Disease live for many years and remember details about their life well into the disease process. They can often be highly intelligent and shrewd but are unable to manage their finances.
The second family dynamic that is fraught with potential issues is the refusal of the Respondent to relinquish control over his home and affairs. The Respondent is able to decide who visits them, who helps them and who can live with them all while the family struggles to deal with them. In these cases, the Respondent may be past the point where he has the capacity to understand the ramifications of his decisions. In these cases early legal intervention is imperative because they can be the most manipulative and cruel. Often times the individual has worked through their mental illness and regains significant capacity. Patients with Dementia can have a period of lucidity where they initiate numerous business transactions and certainly review and execute numerous legal documents. Often a person with these conditions can engage in self-dealing which can harm the remaining family members.
These situations are probably the most common that arise where a Court Order is needed.

Conclusion and Recommended Tips

Temporary guardianship without court involvement can be an effective way to provide for the care and well-being of a child when their parents can no longer do so. For parents or other guardians considering this option, it is important to understand the legal requirements and limitations of such an agreement, as well as the rights and responsibilities that come with being a temporary guardian.
Best practices for entering into a voluntary custodial relationship are worth considering. Such a relationship can be beneficial in ensuring that a child has a stable and nurturing environment, especially in times of crisis or uncertainty. However, it is also important to ensure that the agreement is legally valid and enforceable, to protect both the child and the temporary guardian’s interests.
One suggested best practice is to clearly define the terms of the agreement in writing, including the duration of the custodial relationship, the scope of the guardian’s authority, and any limitations on that authority . It is also advisable to seek legal advice before entering into such an agreement, to ensure that all legal requirements are met and to avoid any potential pitfalls.
Another best practice is to communicate openly and honestly with all parties involved, including the child, the parents or other guardians, and the temporary guardian. This can help to ensure that everyone is on the same page and that the child’s needs and best interests are being prioritized.
Overall, temporary guardianship without court involvement in Indiana can be a useful tool for providing stability and support for children in need. By following best practices and ensuring that the agreement is legally valid and enforceable, parents and other guardians can help ensure that their child’s needs are met and their best interests are protected.