Indiana Code Title 29. Probate § 29-3-9-12.2

Sec. 12.2 . (a) If a guardian of an incapacitated person determines that:

(1) a dissolution of the incapacitated person's marriage;

(2) a legal separation of the incapacitated person and the incapacitated person's spouse;  or

(3) an annulment of the incapacitated person's marriage;

is in the best interests of the incapacitated person, the guardian shall petition the court to request the authority to petition for a dissolution of marriage, a legal separation, or an annulment of marriage on behalf of the incapacitated person.

(b) The petition to request authority described in subsection (a) must set forth the following:

(1) The purpose for petitioning for dissolution of marriage, legal separation, or annulment of marriage.

(2) The names and addresses of all the following:

(A) The incapacitated person's spouse.

(B) If the incapacitated person has adult children, any adult children of the incapacitated person who are not guardians of the incapacitated person.

(C) If the incapacitated person is a minor, a parent of the incapacitated person whose parental rights have not been terminated.

(c) A guardian that petitions the court to request authority as described in subsection (a) shall provide a copy of the petition, on or before the date the petition is filed, to all the following:

(1) The individuals listed in subsection (b)(2).

(2) Any other interested person as ordered by the court.

(d) The court shall:

(1) set a date for a hearing on the petition to request authority described in subsection (a);

(2) notify:

(A) all the parties;  and

(B) any other individual listed in subsection (c);

of the hearing at least thirty (30) days before the hearing;  and

(3) hold a hearing on the petition to request authority described in subsection (a).

(e) If the court determines by clear and convincing evidence that petitioning for:

(1) a dissolution of the incapacitated person's marriage;

(2) a legal separation of the incapacitated person and the incapacitated person's spouse;  or

(3) an annulment of the incapacitated person's marriage;

is in the best interests of the incapacitated person, considering the totality of the circumstances, including the desire and interests of the spouse in remaining married, the court shall grant the petition and authorize the guardian to petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of the incapacitated person.

(f) In making a determination under subsection (e), the court shall consider the risk of harm to the incapacitated person's physical or mental health, safety, or property if the court does not grant the petition and authorize the guardian to petition for dissolution of marriage, legal separation, or annulment of marriage on behalf of the incapacitated person.

(g) In making a determination under subsection (e), the court shall also give appropriate weight to evidence of:

(1) the incapacitated person's intent or preferences;  or

(2) a prior decision of the incapacitated person;

for or against a dissolution of marriage, a legal separation, or an annulment of marriage.  The court may reduce the weight given to evidence of the intent, preferences, or prior decisions of the incapacitated person if the court concludes, from all of the relevant facts and circumstances, that the passage of time, the relevant circumstances at the time of a prior statement or action by the incapacitated person, or changed circumstances after a prior statement or action make the prior statement or action less reliable evidence of the incapacitated person's best interests and current preferences.  The court may give no weight to evidence considered under this subsection that the court concludes is unreliable evidence of the incapacitated person's best interests and current preferences.

(h) This section does not require a guardian of an incapacitated person to file a petition under this section in order to:

(1) defend the incapacitated person against a petition for dissolution, legal separation, or annulment of marriage that was filed before or after the filing of the petition for guardianship;  or

(2) finalize:

(A) a dissolution of the incapacitated person's marriage;

(B) a legal separation between the incapacitated person and the incapacitated person's spouse;  or

(C) an annulment of the incapacitated person's marriage;

if the petition for dissolution of marriage, legal separation, or annulment of marriage was filed by the incapacitated person or the incapacitated person's spouse before the appointment of the guardian.


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