ISBA legislative wrap-up
Tuesday, March 27, 2018
Posted by: Susan Ferrer
The 2018 Indiana General Assembly adjourned mid-March but is likely to return to the Statehouse next month for a special session at the request of Gov. Holcomb to tie up some loose ends. Despite the Legislature’s unfinished business, the Indiana State Bar Association had a successful year with several bills promoted by our sections passing.
Not adopted during the final hours of the legislative session was HB 1316, Indiana’s response to the Federal Tax Reform legislation. Because of this inaction, all businesses will have to calculate federal adjusted gross income tax twice to comply with state and federal tax laws (unless the proposed special session passes the bill).
We’re sad to report that four great lawyer-legislators will not be returning to the Statehouse. Sen. David C. Long announced his impending retirement as did Rep. Thomas W. Washburne. And right before the session began Senators Luke Kenley and Brandt Hershman retired. The ISBA is grateful for their longtime service to the citizens of Indiana.
This summer some of the topics that are expected to be studied are tax on services, child support and alimony.
Here is a brief breakdown of what passed this session:
A Senate Resolution urging Indiana’s congressional delegation to support efforts to modify the U.S. Bankruptcy Code venue requirements.
Juvenile reports. Requires certain reports concerning juveniles be provided at least 48 hours before a hearing.
Change of placement of a child in need of services. Requires that, before changing the out-of-home placement of a child who has been in the same out-of-home placement for at least one year, the department of child services (department) must file a motion requesting a change in placement and provide notice to the persons affected. Sets forth the procedures for the department to follow if the department determines the out-of-home placement of the child is placing the child's life or health in imminent danger. Requires the juvenile court to hold a hearing on the question if the person with whom the child is placed files a written objection to the motion.
Department of Child Services notifications for schools. Requires the Department of Child Services to notify the individual designated as the point of contact for a child's school if the child is removed from the child's home. Provides immunity from civil liability for: (1) a guardian ad litem program; (2) a court appointed special advocate program; (3) an employee of or volunteer for a guardian ad litem program or court appointed special advocate program; and (4) an individual acting as a contracted guardian ad litem; when a child is placed on a waiting list for guardian ad litem or court appointed special advocate services. Makes conforming amendments.
Data concerning youth in adult court. Requires the criminal justice institute to: (1) track certain information concerning juveniles under the jurisdiction of an adult court due to a juvenile court not having jurisdiction; (2) track certain information concerning waivers of juvenile court jurisdiction; and (3) publish the information annually.
Civil forfeiture. Requires the prosecuting attorney to file an affidavit of probable cause with a court not later than seven days after property is seized, and provides for the return of the property to the owner if the court does not find probable cause. Establishes a procedure for an owner of real property or of a vehicle (if the owner was not operating the vehicle at the time of the seizure) to obtain provisional custody of the seized property pending a final forfeiture determination. Makes the time limit for filing a forfeiture action: (1) 21 days, if the owner has filed a written demand for return of the property; or (2) 90 days, if the owner has not filed a written demand for return of the property. Provides that an owner whose property is returned is not liable for the costs of storage, transportation, or maintenance. Specifies how the proceeds of a forfeiture action are to be distributed. Requires a prosecuting attorney to report certain information concerning forfeitures to the prosecuting attorneys council. Imposes certain requirements on the use and compensation of outside counsel in forfeiture actions, and prohibits a prosecuting attorney or deputy prosecuting attorney from receiving a contingency fee for a forfeiture action.
Uniform business organizations. Makes various technical amendments to the Uniform Business Organizations Code and Uniform Business Organization Transactions Act, including changes in provisions concerning information to be submitted in filings with the secretary of state, use of business names, registration of foreign entities, and administrative dissolution. Allows an entity that has had its registration revoked to apply to the secretary of state for reinstatement not later than five years after the date of revocation. Allows a domestic entity that has been administratively dissolved to apply to the secretary of state for reinstatement not later than five years after the date of the dissolution.
Home detention matters. Eliminates the requirement that a period of home detention ordered as a condition of probation must be at least 60 days. Allows a court to approve activities for an offender that do not require the offender to be confined to the offender's home at all times. Provides that an offender must maintain a working telephone, cellular telephone, or other wireless or cellular communications device in the offender's home as a condition of being on home detention.
Pretrial diversion. Provides that the initial user fee amount for a diversion agreement involving a misdemeanor is $50. Provides that the initial user fee amount for a diversion agreement involving a felony is $75. Allows a court to impose on a person an additional program fee or cost that is reasonably related to the person's rehabilitation. Prohibits a monthly user fee from being collected beyond the maximum length of a possible sentence.
Trial records. Permits a victim (or the spouse or an immediate family member of a deceased victim) to obtain, free of charge, an electronic copy of the transcript of criminal proceedings in the victim's case. Requires a prosecuting attorney or victim assistance program to assist the victim, spouse, or immediate family member in obtaining the transcript.
Bail issues. Provides that murder is not bailable if the state proves by a preponderance of the evidence that the proof is evident or the presumption strong.
Sentence modification. Requires a court to advise a defendant, before accepting a guilty plea, that the court will be bound by terms of a plea agreement both at the time of sentencing and with respect to sentence modification. Provides that a court may not, without the consent of the prosecuting attorney, reduce the sentence of a person sentenced under a plea agreement if the reduction was not authorized by the plea agreement. Provides that the prohibition against including a waiver of the right to sentence modification in a plea agreement does not prohibit finding that a person has waived the right to have a court modify a sentence in a manner contrary to the plea agreement.
Child support. Provides that incarceration of a parent may not be considered to be voluntary unemployment in determining an amount to be ordered for support of a child. Provides that a court may modify the child support order, or approve a proposed modification, without holding a hearing if: (1) a petition to modify a child support order based on incarceration of a party is filed; and (2) after receiving notice, no party files an objection or request for a hearing within 30 days. Requires the child support bureau (bureau), beginning July 1, 2019, to notify both parties of each party’s right to request a modification of the child support order not later than fifteen (15) days after learning that an obligor in a Title IV-D case is or may be incarcerated for a period of at least one hundred eighty (180) calendar days. Requires a prosecuting attorney or private attorney entering into an agreement or a contract with the bureau to review all requests for modification of child support due to the incarceration of an obligor within an open Title IV-D case and, if appropriate, file a petition for modification of child support and proposed order in the appropriate court.
Foster parent bill of rights. Requires the department of child services (department), in collaboration with: (1) current foster parents; (2) child placing agencies; and (3) other individuals and organizations with expertise in foster care services; to develop and update a statement of the rights of a foster parent. Requires that the statement of the rights of a foster parent summarize the rights and responsibilities of a foster parent. Requires the department to distribute and publish on the department's Internet web site the statement of the rights of a foster parent.
Electronic powers of attorney, trusts, and wills. Allows a testator to execute an electronic will. Specifies requirements pertaining to the: (1) creation; (2) attestation; and (3) execution; of an electronic will. Allows video recordings of an electronic will's execution to be used for demonstrating: (1) proper execution of a will; (2) testator intent; (3) the mental state of a testator; (4) the absence of undue influence or duress with respect to a testator; and (5) verification of the individual identities involved in the execution of an electronic will. Provides exemplar instructions and advisory language to testators with respect to electronic wills. Specifies how to revoke an electronic will. Allows certain electronic records to be used in place of an electronic will. Specifies how to transfer possession of an electronic will from the current custodian to a successor custodian. Specifies the responsibilities of an electronic will custodian. Specifies how to amend, destroy, and revoke an electronic will. Creates a presumption of regularity for electronic wills. Allows electronic wills to be deposited with the clerk of a probate court in certain instances. Explains the probate process for electronic wills. Allows a settlor to create and execute an electronic trust instrument. Specifies how to create and execute an electronic trust instrument. Specifies how to amend or revoke an electronic trust instrument. Specifies who may act as a custodian for an electronic trust instrument. Specifies how an electronic trust instrument may be delivered or transferred. Specifies how to destroy an electronic trust instrument. Creates a presumption of regularity with respect to electronic trust instruments. Allows a person to create and execute an electronic power of attorney. Specifies how to execute a valid electronic power of attorney. Specifies how to amend or revoke an electronic power of attorney. Specifies who may act as a custodian for an electronic power of attorney. Specifies how to destroy an electronic power of attorney. Creates a presumption of regularity with respect to electronic powers of attorney.
Creditors' rights. Makes various changes to probate and trust law relating to creditors' claims, claims against nonprobate transferees, and no contest provisions in wills and trusts. Defines "no contest provision". Provides that a no contest provision is enforceable, except under certain circumstances. Provides that the estate recovery unit of the office of Medicaid policy and planning is a reasonably ascertainable creditor if the decedent was at least 55 years of age at the time of death. Extends the time period for county clerks to issue letters testamentary or of administration from five months to seven months. Allows for the deduction of liens, encumbrances, and reasonable funeral expenses from the estate value for purposes of determining whether the estate assets are worth more or less than the threshold value of $50,000. Provides an exception for a county clerk's delay in issuing letters testamentary or letters of administration that is not caused by the fault of the petitioner.
Notarial acts. Makes technical changes to standardize language concerning registration of trademarks and regulation related to notarial acts. Specifies requirements related to notarial acts, including use of electronic documentation and technology for electronic notarial acts. Requires the secretary of state to adopt rules related to electronic notarial acts and remote notarial acts. Specifies requirements for remote notarial acts, including: (1) registration of a remote notary public; (2) certification of and record keeping related to remote notarial acts; (3) use of audio visual communication and recording; (4) verification of credentials; and (5) maintenance of records.
Various property issues. Amends the statute concerning the Indiana coordinate system for describing real property to provide that coordinates based on specified coordinate systems and used to define the position of a point on a land boundary may not be presented to be recorded unless the recording document also contains: (1) the method used to relate the coordinates to the National Spatial Reference System; and (2) the name and zone of the coordinate system. Eliminates other reporting and certification requirements with respect to such recordings. Provides that if any coordinates (not specifically coordinates based on the Indiana coordinate system, as provided in current law) are used to describe a tract of land that is also described by a reference to the United States public land surveys: (1) the description by coordinates shall be construed as supplemental; and (2) in the event of a conflict, the description by reference to the United States public land surveys prevails over the description by coordinates. Provides that the statute does not require a purchaser or mortgagee of real estate to rely on a description, any part of which depends exclusively upon the Indiana coordinate system, unless the same description was previously used in a document conveying title to the real estate. Amends the Indiana Code provision concerning the establishment of property lines by means of a legal survey to: (1) eliminate the exception to the required notice when all adjoining landowners consent in writing; and (2) specify that the lines established are binding on all affected landowners. Defines "original survey". Defines "retracement survey". Provides that, other than for descriptions of lots in new subdivisions, any new or modified real property description prepared by a professional surveyor as a product of an original survey or a retracement survey must include a caption that identifies: (1) the name and registration number of the professional surveyor preparing the description; and (2) the plat of survey produced as part of the original survey or retracement survey, including certain specified information. Repeals the section in the statute concerning the Indiana coordinate system that provides that the statute does not require a purchaser or mortgagee of real estate to rely on a description, any part of which depends exclusively upon the Indiana coordinate system.
Disposition of tax sale surplus. Amends the definition of "substantial property interest of public record" for purposes of the tax sale statutes to specify that: (1) the term means title to or interest in a tract that is within the tract's chain of record title and either recorded or properly indexed in the county in which the tract is located; and (2) chain of record title includes instruments executed by the owner and recorded within the five day period before the date the owner acquires title to the tract. Eliminates the requirement that a person that redeems property sold in a tax sale must pay an amount equal to the amount deposited in the tax surplus fund at the time of the tax sale. Continues current law requiring the redeeming party to pay 5% interest on that money. Requires that a conveyance recorded after June 30, 2007, must include a statement specifying the mailing address for tax statement purposes and the mailing address of the grantee. Requires that the mailing address of the grantee be a street address or a rural route address.