lamlawindy
Verified lawyer Indiana
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@lamlawindy-- can you please offer more guidance on the Guardianship issue --specifically in the state of IN, as follows:
I getting the impression that the Court will not intervene to protect SM's rights and interest at her own hearing by appointing an attorney for her when she will not be present at her own hearing because she's believed ***^**.
But what if she's not? What if she is a captive and later released?
Right or wrong, I'm getting the impression that it's necessary for others (such as her birth family) to intervene on her behalf for representation, and I'm really perplexed by this requirement.
It's perplexing because it seems to me that a respondent that is present at her hearing and opposes her guardianship, can receive a court-appointed lawyer to represent her at her Guardianship hearing.
It also seems that a respondent that received Notice but cannot safely attend the hearing can also receive a lawyer or Guardian ad Litem to represent them at their hearing.
I see no requirement for the parties cited above to have a third party intervene for these respondents to receive protection of their rights.
It does not follow that SM is left hanging without representation unless it's initiated by others.
I'm referencing the facsimile Notice, required to be attached to the petition and quoted below, from the applicable linked Probate Code. The same served as my reference for court-appointed attorneys for respondents at their own Guardianship hearings.
What say you?
And thanks for your courtesy.
Unlike federal courts, there is no "case or controversy" requirement for probate matters. Historically, probate courts have acted as a tool to ensure that certain things could be done when the owner of property is deceased, incapacitated, etc. An important function they've played here in the Midwest is to ensure that property title passes smoothly & cleanly when a property owner dies; one chief
goal was to avoid lengthy, costly battles over farmland between heirs. Once a will was probated (or intestacy was found)
& title to property passed to an heir, creditors would be much more likely to provide the heir with seed, fertilizer etc. on credit because the heir's right to the land was established by a judicial order.
That being said, the law also has an important principle: judicial restraint. Briefly, it means that courts should limit their use of power and not interfere where unnecessary or unsought.
For example, let's say that two first cousins (each 25 years of age) marry
in Tennessee but then move to Indiana, which forbids such marriages unless both parties are 65. Now, let's say that the cousins file for divorce in Indiana but do not ask for an annulment. The court could, theoretically, find their marriage void because they're first cousins under 65. Under the principle of judicial restraint, though, the court will probably instead recognize their original marriage as valid because (a) it will give deference to the legislature of the state where they were married (Tennessee)* and (b) neither cousin asked for an annulment to begin with, so the court will not insert itself if not asked.
Here, judicial restraint would seem to militate against interference in the guardianship proceeding by the court when other persons -- namely, the Moormans -- refuse to become involved. Again, the thinking would be that the court should not insert itself if persons with possibly genuine concern for Suzanne's property will not become involved.
You're right that there's no statutory requirement that a family member intervene. A probate court also has wide discretion in what it can do, as IC § 29-3-6-1 shows. It could appoint Barry Morphew as guardian but forbid him from transferring any of Suzanne's property & order him to simply preserve it.
The court may even find -- because Barry and Suzanne are domiciled in Colorado -- that Indiana is not the proper venue for the guardianship proceeding and (a) dismiss the petition or (b) find only in rem venue and grant Barry powers only over property in Indiana.
If the Moormans asked me, I'd recommend that they intervene. Sure, it's possible that the judge will not give Barry all the powers of a guardian, but merely hoping for that outcome isn't a good strategy. At the very least -- if the Moormans want the best chance to avoid a guardianship -- they should attempt to intervene.
* Many Americans incorrectly assume that the Full Faith and Credit Clause of the US Constitution mandates that each state recognize marriages from all other states as valid. This is incorrect. Judgments and orders, such as adoption and divorce decrees, do have to be recognized as valid