Introduced Version




Citations Affected: IC 29-3-9.

Synopsis: Guardianships. Specifies a guardian's powers concerning the estate planning of a protected person. Repeals the current statute governing a guardian's authority to engage in estate planning for a protected person. (The introduced version of this bill was prepared by the probate code study commission.)

Effective: July 1, 2010.


    January 5, 2010, read first time and referred to Committee on Judiciary.


Second Regular Session 116th General Assembly (2010)

PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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    A BILL FOR AN ACT to amend the Indiana Code concerning probate.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 29-3-9-4.5; (10)IN0065.1.1. -->     SECTION 1. IC 29-3-9-4.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 4.5. (a) After notice to interested persons and upon authorization of the court, a guardian may, if the protected person has been found by the court to lack testamentary capacity, do any of the following:
        (1) Make gifts.
        (2) Exercise any power with respect to transfer on death or payable on death transfers that is described in IC 30-5-5-7.5.
        (3) Convey, release, or disclaim contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entireties.
        (4) Exercise or release a power of appointment.
        (5) Create a revocable or irrevocable trust of all or part of the property of the estate, including a trust that extends beyond the duration of the guardianship.
        (6) Revoke or amend a trust that is revocable by the protected person.
        (7) Exercise rights to elect options and change beneficiaries under insurance policies, retirement plans, and annuities.
        (8) Surrender an insurance policy or annuity for its cash value.
        (9) Exercise any right to an elective share in the estate of the protected person's deceased spouse.
        (10) Renounce or disclaim any interest by testate or intestate succession or by transfer inter vivos.
    (b) Before approving a guardian's exercise of a power listed in subsection (a), the court shall consider primarily the decision that the protected person would have made, to the extent that the decision of the protected person can be ascertained. If the protected person has a will, the protected person's distribution of assets under the will is prima facie evidence of the protected person's intent. The court shall also consider:
        (1) the financial needs of the protected person and the needs of individuals who are dependent on the protected person for support;
        (2) the interests of creditors;
        (3) the possible reduction of income taxes, estate taxes, inheritance taxes, or other federal, state, or local tax liabilities;
        (4) the eligibility of the protected person for governmental assistance;
        (5) the protected person's previous pattern of giving or level of support;
        (6) the protected person's existing estate plan, if any;
        (7) the protected person's life expectancy and the probability that the guardianship will terminate before the protected person's death; and
        (8) any other factor the court considers relevant.
    (c) A guardian may examine and receive, at the expense of the guardian, copies of the following documents of the protected person:
        (1) A will.
        (2) A trust.
        (3) A power of attorney.
        (4) A health care appointment.
        (5) Any other estate planning document.

SOURCE: IC 29-3-9-4; (10)IN0065.1.2. -->     SECTION 2. IC 29-3-9-4 IS REPEALED [EFFECTIVE JULY 1,