Q: I have a 17 year old son who turns 18 in June. He has bipolar disorder can I gain guardianship of him once he is 18.
A: Does his bipolar disorder render him "incapacitated?" This usually needs to be proven by medical/psychological expert testimony. In other words, will his psychologist/psychiatrist testify, under oath, that he meets the criteria under the following statute, to a reasonable degree of medical certainty?
IC 29-3-1-7.5 Incapacitated person
"Incapacitated person" means an individual who:
(1) cannot be located upon reasonable inquiry;
(2) is unable:
(A) to manage in whole or in part the individual's property;
(B) to provide self-care; or
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity; or
(3) has a developmental disability (as defined in IC 12-7-2-61).
IC 29-3-5-2 Appointment of guardian before adjudication of incapacity or minority
A guardian may not be appointed for an incapacitated person or a minor under this chapter until the incapacity or minority has been adjudicated.
IC 29-3-5-3 Findings; appointment of guardian; limited guardianship; protective orders
(a) Except under subsection (c), if it is alleged and the court finds that:
(1) the individual for whom the guardian is sought is an incapacitated person or a minor; and
(2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated person or minor;
the court shall appoint a guardian under this chapter.
(b) If it is alleged and the court finds that the welfare of an incapacitated person would be best served by limiting the scope of the guardianship, the court shall make the appointive or other orders under this chapter to:
(1) encourage development of the incapacitated person's self-improvement, self-reliance, and independence; and
(2) contribute to the incapacitated person's living as normal a life as that person's condition and circumstances permit without psychological or physical harm to the incapacitated person.
(c) If the court finds that it is not in the best interests of the incapacitated person or minor to appoint a guardian, the court may:
(1) treat the petition as one for a protective order and proceed accordingly;
(2) enter any other appropriate order; or
(3) dismiss the proceedings.
IC 29-3-5-4 Considerations for appointment of guardian
The court shall appoint as guardian a qualified person or persons most suitable and willing to serve, having due regard to the following:
(1) Any request made by a person alleged to be an incapacitated person, including designations in a durable power of attorney under IC 30-5-3-4(a).
(2) Any request contained in a will or other written instrument.
(3) Any request made by a minor who is at least fourteen (14) years of age.
(4) Any request made by the spouse of the alleged incapacitated person.
(5) The relationship of the proposed guardian to the individual for whom guardianship is sought.
(6) Any person acting for the incapacitated person under a durable power of attorney.
(7) The best interest of the incapacitated person or minor and the property of the incapacitated person or minor.
IC 29-3-5-5 Consideration for appointment of guardian; order of consideration; priorities
a) The following are entitled to consideration for appointment as a guardian under section 4 of this chapter in the order listed:
(1) A person designated in a durable power of attorney.
(2) The spouse of an incapacitated person.
(3) An adult child of an incapacitated person.
(4) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a parent of an incapacitated person and attested to by at least two (2) witnesses.
(5) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six (6) months before the filing of the petition.
(6) A person nominated by the incapacitated person who is caring for or paying for the care of the incapacitated person.
(b) With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section.
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