When an individual reaches the age of 18 he or she becomes an emancipated adult. In planning for the future for a loved one who has a disability, guardianship is an issue to carefully consider.
Guardianship is a legal proceeding to appoint a person who is responsible to the court to take care of an incapacitated individual or minor and/or manage that individual’s property. Under Indiana law, an “incapacitated person” is someone who cannot fully manage his or her property and/or provide self care because of “insanity, mental illness or deficiency, physical illness, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others, or other incapacity or a person who has a developmental disability.” (IC 29-3-1-7.5)
Types of Guardianship:
Guardian of the Person: oversees the proper living condition and treatment for the protected person
Guardian of the Estate: responsible to oversee and manage proper investment and financial affairs of the protected person
Guardian of the Person & Estate: responsible for both of the above aspects of a protected person’s life
Limited guardianship allows the probate court to appoint someone as guardian over only the portion of a person’s life where the person is both incompetent and has a need. Thus, there might be a limited guardian appointed for medical purposes only (i.e., to provide consent for medical procedures), or for placement purposes only, or for the limited purpose of approving behavior plans and/or psychotropic medications. This is the least restrictive form of guardianship and should be utilized whenever possible.
An individual may appoint a health care representative if there are concerns that at some time, the individual may lack the ability to make decisions regarding his/her health. Under Indiana law the health care representative can then make these decisions on the individual’s behalf. The appointment of a health care representative must be done when the individual is competent.
A Power of Attorney is a written notarized directive from one person to another delegating authority to make certain decisions. Attorneys who serve as a power of attorney are called attorney of fact.
What Are The Differences Between Guardianship And A Power Of Attorney?
A power of attorney is voluntary; a guardianship can be voluntary or involuntary
A power of attorney is easily revoked; a guardianship can only be terminated by a court order
A power of attorney is made by someone who is competent; a guardianship usually involves someone who is incompetent by age or health
A power of attorney is private and does not involve a court; a guardianship involves court proceedings
An attorney in fact under a power of attorney has less formal accountability than a guardian
What Is The Process to Become A Guardian?
Retain an attorney to help with the paperwork and guide you through the process.
Have a thorough understanding of the protected person’s health and finances.
If the person is incapacitated by health conditions, obtain a Physician’s Report or letter from the person’s physician verifying that he or she cannot manage finances or make other personal decisions.
File a Petition for Guardianship with a court with probate jurisdiction and notify the allegedly incapacitated person, all close family members, and any person or institution having care or custody of the allegedly incapacitated person during the 60 days preceding filing of guardianship petition.
Pay the filing fee.
If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.
If a guardian is appointed, the judge will issue the guardian legal documents (often called “letters of guardianship”) permitting the guardian to act on behalf of the legally incapacitated person. (IC 29-3-7-3)
Issues Considered At Guardianship Hearings
Is the protected person truly unable to care for him or herself and/or finances?
Is the person filing for guardianship the best person to be the guardian?
Who should have access or be able to spend time with the protected person?
Should the protected person be able to make some decisions for him or herself?
Considerations For Appointing A Guardian
Requests of the incapacitated person
Requests of a minor more than 14 years of age
Requests of a spouse
Person named in a power of attorney or will
The relationship of the proposed guardian and the incapacitated person
What is the best interest of the incapacitated person
Priorities Among Possible Guardians
Person named in durable power of attorney
Spouse of incapacitated person
Adult child of incapacitated person
Parent of incapacitated or person named in the will of a deceased parent or any writing signed by parent and attested by two witnesses
A person related to incapacitated person by blood or marriage with whom incapacitated person has resided for over 6 months
Person nominated by incapacitated person
Court shall select best qualified person to serve as guardian and may pass over person having priority
What Are The Duties Of A Guardian?
Do everything for the best interests of the protected person
File an inventory of assets if guardian of the estate
Keep all funds of the protected person separate from the Guardian’s personal funds
Obtain permission from the court before selling anything of value belonging to the protected person
Obtain approval from the court if making an unusual expenditure for the protected person
Obtain approval before moving the protected person out of town or out of state
Every two years, file an accounting of income, assets and expenses with the court and others
What Type of Recordkeeping Is Required For A Guardian?
Place all funds belonging to the protected person in a separate account(s)
Keep all statements and receipts
Maintain a complete check register or spreadsheet showing deposits and expenses paid
What Are The Powers Of Guardians?
To invest protected person’s funds as a prudent investor would and as court directs
To reasonably pay persons who are caring for the protected person
To delegate some responsibilities to the protected person and others
To select the protected person’s place of living within or without the state
To arrange the medical care for the protected person
To protect the personal effects of the protected person (clothing, furniture, vehicle, etc.)
To give necessary consent, approval or releases on behalf of the protected person
To arrange for training, education or other services appropriate for the protected person
To apply for private or governmental benefits to which the protected person may be entitled
To do what is necessary to ensure that any person who may be required to help support the protected person does so
To enter into contractual agreements on behalf of the protected person
To receive money and any other items of value on behalf of the protected person and apply these funds to the protected person’s room and board, medical care, personal effects, training, education and other services
What Type Of Liability Does The Guardian Have?
A guardian is not responsible to pay the debts of the protected person, but the guardian needs to be sure he or she does not personally commit to the debt
A guardian may be liable to the protected person or third parties for negligence, bad faith and fraud
What Rules Exist About Guardian Fees?
A guardian is entitled to be paid for his/her time, but is not required to accept a fee
A guardian should keep detailed records of his/her time-date, amount of time, activity undertaken
A guardian’s fee must be reasonable
A guardian may not pay him/herself until the court has approved the fee
How Does A Guardian Resign?
A guardian may resign if he or she is unable to continue to serve. A motion requesting resignation will need to filed with the court and the court will need to approve it. If guardianship is of the estate, an accounting will need to be done.
How Is A Guardianship Terminated?
Protected person is no longer incapacitated
Protected person is moved to another state
Protected person dies
A guardianship of the estate can be terminated when funds or property do not exceed $3,500
Guardianship is no longer needed for some other reason
Guardian has not performed his/her duties in good faith or in the best interest of the protected person
Court terminates the guardianship
Guardianship of a Minor: Guardianship of a minor is terminated when the minor reaches the a of 18
Rights of a Person Who has a Guardian
Marriage: The guardian has the authority to consent to the marriage.
Driving: The protected person may drive if they meet all BMV requirements.
Financial responsibility: The guardian may delegate to the protected person certain responsibilities for decisions affecting his or her business affairs and well-being.
Voting: Voting is everyone’s right as an American.