SENATE BILL No. 65
DIGEST OF INTRODUCED BILL
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)
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Additions: Whenever a new statutory provision is being enacted (or a new constitutional
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between statutes enacted by the 2009 Regular and Special Sessions of the General Assembly.
SENATE BILL No. 65
A BILL FOR AN ACT to amend the Indiana Code concerning
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
(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
(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
(2) the interests of creditors;
(3) the possible reduction of income taxes, estate taxes,
inheritance taxes, or other federal, state, or local tax
(4) the eligibility of the protected person for governmental
(5) the protected person's previous pattern of giving or level
(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
(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,