Tag Archive | "Guardianship"

Guardianship Training – Tuesday, Nov. 21

A program designed to guide you through the concepts, mechanics, duties, special situations, ethical matters and current practice issues.

Co-Sponsored with the Center for At-Risk Elders (CARE)
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TOPICS:
Legal Concepts
a. The Serious Consequences of Guardianship
b. Navigating Indiana’s Confusing Guardianship Code
c. Principles of Surrogate Decision Making
d. Lesser Restrictive Alternatives to Guardianship

Legal Mechanics
a. Launching a Guardianship Proceeding
b. Preparing for the Uncontested Hearing
c. Preparing for the Contested Hearing
d. Discovery Rules and Evidence Rules

Duties of Guardian to Court & Post-Hearing Role of Court
a. Reports, Inventories and Accountings
b. Actions Requiring Court Approval
c. Successor Guardians and Removal of Guardians
d. Termination of Guardianships
e. Special Legal Tools Available to Guardians

Temporary Guardianships
a. When Is a Temporary Guardianship Appropriate?
b. Special Rules Applicable to Temporary Guardians

Ethical Issues in Guardianship
a. Confidentiality in the Age of E-Filing
b. Obligations to Honor Rights to Due Process
c. Advising Guardians on Methods of Ethical Decision Making

Overview of Current Issues in Guardianship Law & Practice
a. Access / Quality / Accountability.
b. Update on Recent Indiana Case Law on Guardianship
c. “Right to Association”
d. Laundry List of Guardianship Laws Too Often
Ignored in Practice
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FACULTY:
H. Kennard Bennett
Bennett & McClammer LLP, Indianapolis

Sara M. McClammer
Bennett & McClammer LLP, Indianapolis
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GUARDIANSHIP TRAINING
Co-Sponsored with the Center for At-Risk Elders (CARE)
6 CLE / 1 E – Tuesday, November 21
9:00 A.M. – 4:30 P.M.

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCAST
– From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Grandparents, Parents, Brothers and Sisters: Guardians What are You Risking Because of Child, Part 2

BULLIES AND PARENTS OF BULLIES BEWARE
Prepared By Richard A. Mann

In my previous article, I addressed the liability you incur by signing for a child’s driver’s license in my article GRANDPARENTS, PARENTS, BROTHERS AND SISTERS HAVE YOU JUST UNKNOWINGLY SIGNED FOR LIABILITY? Part I. As previously noted, we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either because of divorce, the children are born out of wedlock, or the parent not being able to care for the child and leave the child with a relative. If your child is engaged in an activity such as bullying, vandalism, shoplifting, fights etc. you could be liable. If you or your child are a victim of any of these activities, you may have options you have not considered.

STRICT LIABILITY STATUTE FOR PARENTS
At common law people were generally not responsible for the acts of their children. Indiana has a law that changes that as it applies to the parent of a child. Pursuant to I.C. 34-31-4-1 “…, a parent is liable for not more than five thousand dollars ($5,000) in actual damages arising from harm to a person or damage to property knowingly, intentionally, or recklessly caused by the parent’s child if: (1) the parent has custody of the child; and (2) the child is living with the parent.” This means that if the child lives with a parent and that child knowingly, intentionally, or recklessly harms property of a person you can be strictly liable for up to $5,000 in damages. By strict liability this means even if you are not at fault you can still be sued.

LIABILITY FOR PARENTS AND GUARDIANS
 Where the guardian or custodian may be at risk or the parent for more than $5,000 is set forth in the Wells decision. In that case the Court of Appeals found a parent liable but the reasoning could be applied to a guardian and there is no limit in such cases. Furthermore, it is likely that there is no insurance coverage available so you could be made to pay the entire judgment yourself.

“In addition to Indiana Code § 34–4–31–1, there are four common law exceptions to the general rule that a parent is not liable for the tortious acts of her child.

(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.

K.C. v. A.P. (1991), Fla.App., 577 So.2d 669, 671.2 Wells’ claim is based on the fourth common law exception. She alleges that Hickman was negligent because Hickman failed to control her minor son when she knew or should have known that L.H. would injure D.E.”

Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995)

Some examples of such cases are Hyman v. Davies, 453 N.E.2d 336, where the child broke into a neighbor’s home and stole their car; Wells v. Hickman, 657 N.e.2d 172, where the child beat a person to death; State Farm Fire & Casualty Company v. T.B., 858 F. Supp.2d 971, where the son struck another minor in the mouth and the insurance company refused to defend the suit against the parents and the child; Stewart v. Swartz, 57 Ind. App. 249, 106 N.E. 719, in which the court found that the parent would be liable when he knew his children had stretched a rope across a road (the case was remanded for other reasons); Johnson v. Toth, 516 E.E.2d 85, where a child struck another child with a pop bottle; Shepard v. Porter, 679 N.E.2d 1383, in which a 13-year-old accidently burned when lighter fluid was ignited (the parents were not held liable based solely on facts of the case); and Economy Premier Assurance Company v. Wernke, 521 F. Supp.2d 852, where the son struck someone in the face causing damage. In Wernke, the insurance company was successful in having the court declare that the insurance company did not have to defend or pay for the injuries when their son struck someone which resulted in the victim having a broken jaw.

LIABLITY FOR CRIMINAL ACTIVITY
Another source of liability is if the child is involved in a criminal organization commonly known as a gang.

A parent of a child who is a member of a criminal organization (as defined in IC 35-45-9-1), who actively encourages or knowingly benefits from the child’s involvement in the criminal organization, is liable for actual damages arising from harm to a person or property intentionally caused by the child while participating in a criminal organization activity if: (1) the parent has custody of the child; (2) the child is living with the parent or guardian; and (3) the parent failed to use reasonable efforts to prevent the child’s involvement in the criminal organization.

Ind. Code Ann. § 34-31-4-2.

The statute uses the terms parent and guardian and as such an argument could certainly could be made that a grandparent with custody of a grandchild could be liable. A criminal organization or gang does not have to be a major gang as the law only requires that it be made up of 3 or more people that (1) either: (A) promotes, sponsors, or assists in; (B) participates in; or (C) has as one (1) of its goals; or (2) requires as a condition of membership or continued membership; the commission of a felony, an act that would be a felony if committed by an adult, or a battery offense included in IC 35-42-2. Ind. Code Ann. § 35-45-9-1.   In Cole v. State, 967 N.E.2d 1044, the defendant was convicted of criminal gang activity (now criminal organization activity) when he and 2 others committed felonies. Shop lifting can be a felony; joy riding can be a felony; hitting someone with your fist or pop bottle can be a felony if it causes moderate bodily injury or is committed against a person under 14 years of age by someone 18 years old or over. You could be liable, for example, if your child and 2 others decide to go do vandalism if the damage they cause is $750 or more. It does not take much damage to cost $750.

CONCLUSION

If you have a child or are contemplating taking the custody of a child of another person, you should consider the above issues. You should consult your attorney about the possibilities raised in this article. You should also speak to your insurance agent and if you do not have one you should get one. You need to look at what your automobile, homeowners, renters, and umbrella coverages are and, even as important, what they do not cover. I once read a case where the appellate court judge said after reading the insurance policy what the coverage gave the exclusions took away. You should also consider if your child is a bully or a victim of bullying how these laws can affect your liability or your options to stop such activity.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Your Nursing Home Resident Client Could Use A Good Managing Partner

What do you do to promote quality care for the person under guardianship for whom you are responsible as guardian, once that person is in the facility? We often hear that, in dealing with a demented patient, you shouldn’t try to bring them to your reality because that’s a losing battle. Instead, we’re told, be with them in their reality. To some degree the same can be said for dealing with a nursing home; knowing that the reality is that there will be care problems in a nursing home, some avoidable and some not, how do we act as guardians within that reality?

I welcome H. Kennard Bennett and Robin Bandy, ICLEF faculty participants, who have wide experience in effective advocacy on behalf of the nursing home resident client. Their guidance for those acting as guardians includes being persuasive, curious and persistent, celebrating success and finding internal as well as external allies. Another effort that Robin and Ken recommend for the best outcome for the nursing home resident is good team management. Here’s that expert advice:

Defining Roles and Responsibilities – The Team Approach
As obvious as it may be to those of us serving in the guardianship role, the role of a guardian is not always understood by others, including nursing home staff. A guardian is not a health care provider. A guardian is not a discharge planner. A guardian is not just a “yes man” or someone who just signs consent forms, etc. A guardian is defined by the National Guardianship Association’s Standards of Practice as “A person or entity appointed by a court with the authority to make some or all personal decisions on behalf of an individual the court determines lacks capacity to make such decisions.”

A common way of thinking of guardians is as the “surrogate decision-maker” responsible for exercising “informed consent” on behalf of someone who has been deemed incapable of exercising such consent themselves. This model, however, is an insufficient one when it comes to guardians of a nursing home resident. We say “informed consent” meaning that the experts – the doctors or nurse – are providing us with information upon which we are asked to say “yes” or “no” -yes to that procedure, no to that drug, etc. But in the nursing home setting, where the person under guardianship shall be living, not just convalescing, the decisions to be made are not only with regard to medical or nursing procedures. They also involve the resident’s quality of life. What foods and activities do they enjoy? What were their living habits before moving to the nursing home? Were they “night owls”? Was lunch or dinner their biggest meal of the day? Briefs or boxers?

Many of these questions are incapable of being answered by the nursing home itself. They are questions the social worker in the nursing home will want answers to, perhaps, but the social worker may not know the questions to ask. All of which is to say that the guardian and the nursing home staff need to be a team to meet the needs of the resident. The guardian relies upon the nursing home employees to provide the care and services required, but the nursing home relies upon the guardian to provide not only consent, but is many ways resident history, guidance, and direction.

As between the nursing home staff and the guardian, which team analogy makes the most sense? Is the guardian the coach? I would argue not- a coach tells the players how to do their job, how to improve their skills, etc. That’s not the role a guardian must play; a guardian cannot be expected to have the expertise to tell nursing homes how to do their job. Is the guardian the CEO? This is perhaps a better analogy in that the CEO defines the outcomes she wants from the employee team, although this analogy comes across as too top-down and too egotistical.

Maybe the best analogy is that of “managing partner,” in that the guardian is keeping a “team of equals” on track in meeting the needs of the nursing home resident. The guardian still holds the team accountable to the team goals, but recognizes and respects the individual expertise of each of the team members. As with a managing partner so it is with guardians: the power of persuasion trumps the power of commandment when it comes to achieving the team’s mutual goals.

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Ms. Bandy and Mr. Bennett served as faculty for our popular Guardianships In Indiana CLE seminar. You have several options should you wish to learn more from this program. Click Here to select from these formats: Video Replay, OnDemand, electronic document, publication or CD-ROM. Thank you to these two outstanding faculty members for their continuing contributions.

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About our Law Tips faculty participants:
Robin J. Bandy, Associate Counsel and Director of the Volunteer Advocates Program at the Center for At Risk Elders (CARE). Prior to joining CARE Robin was the Program Manager at the Fairbanks Center for Medical Ethics at IU Health. Robin completed her law degree and master’s in bioethics at Indiana University-Indianapolis. She was the founding director of the Wishard Volunteer Advocates Program and has served as an ethics consultant at both IU Health and Eskenazi hospitals.

H. Kennard Bennett, Bennett & McClammer, LLP, Indianapolis. Before starting Bennett & McClammer, Ken had his own solo practice and he was a partner in the elder law firm of Severns & Bennett, serving as its President and CEO. He remains “of counsel” to what’s now known as Severns Associates. Ken has served as the Editor of the National Academy of Elder Law Attorneys Quarterly. He is a frequent continuing education speaker on nursing home litigation and elder law topics. Ken currently serves as President of the Indiana State Guardianship Association. He also serves as the President and CEO of a new non-profit public interest law firm known as The Center for At-Risk Elders, Inc. (“CARE”).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Guardianship Matters Must be Heard in County Where Matter is Already on File

Case: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.
Case Summary by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: When a guardianship matter is already properly on file in one county, a petition filed in another county concerning the custody and parenting time of the subject child is properly dismissible and should be heard, instead, by the court already entertaining the guardianship matter.

HELD: Indiana’s statute that permits a court to restrict parenting time based upon a risk to the child’s physical health or emotional development does not require specific findings by the court concerning those risks to the child.

FACTS AND PROCEDURAL HISTORY:
Child was born, in Illinois, to Mother in 2009. Child was subsequently made a ward of the State of Illinois. Father had been incarcerated but, upon his release in 2010, Father began visiting Child. In 2011, upon Father’s motion, paternity was established in Kankakee County, Illinois.

In early 2013, Mother brought Child to Decatur County, Indiana, where Child was to live with Guardian, who was a friend of Father. Father initiated this move, as Father had since moved to Hendricks County, Indiana, and wanted Child to be closer to him. Guardian subsequently filed, in Decatur County, and with Mother’s and Father’s consent, a petition to be appointed Child’s guardian. That petition was granted.

Over six months later, Father filed, in Hendricks County, a petition to register the Illinois paternity order, and a motion to vacate the Decatur County guardianship order, alleging a lack of jurisdiction. After a hearing, the Decatur Court issued an order restricting Father’s parenting time and requiring that it be supervised. Father then filed, in the Hendricks Court, a petition to modify custody and parenting time, which Guardian moved to dismiss. The Decatur Court denied Father’s motion to dismiss, and the Hendricks Court granted the Guardian’s motion to dismiss as well as issued a fee award in Guardian’s favor. Father appealed both orders, which were consolidated into a single appeal.

The Court of Appeals concluded that the Decatur Court had proper jurisdiction. The Court suggested that, at one point, Father might have had a UCCJA argument that the Decatur Court should not be hearing the matter – and that the matter should be resolved in Kankakee County, Illinois — but that Father waived that argument when he consented to the guardianship in the Decatur Court.

In terms of the Hendricks Court matter, the Court agreed that Father’s petition to modify was properly dismissed. “Although the actions took two different forms, their subject matter was the same. Because the subject of child custody and parenting time was properly before the Decatur Court in the guardianship action, the Hendricks Court was precluded from making a custody or parenting time determination in the subsequently-filed paternity action.”

Notably, the order from the Decatur Court that restricted Father’s parenting time and required that it be supervised contained no specific findings of fact. Though neither party had requested findings, the applicable statute concerning parenting time restrictions provides: “A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.” The Court of Appeals determined the statute does not require specific findings from the trial court in the absence of either party requesting findings generally. Since the trial court’s parenting time restrictions were generally supported by evidence (e.g., Father’s history of drug and alcohol addiction, prior incidents of questionable care of the child, etc.), the order was affirmed.

The only order from below that was reversed was an attorney fee award issued by the Hendricks Court in favor of Guardian, and against Father, in the course of dismissing Father’s petition to modify. The Court of Appeals concluded that the trial court failed to hear any evidence of the parties’ financial resources and, in the absence of same, the attorney fee order was improper.

To view the text of this opinion in its entirety, click here: In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C.

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments