It may be difficult to envision a future where you are incapacitated and unable to care for yourself and/or manage your own affairs; however, the reality is that it could happen. If that does come to pass, a loved one may be forced to petition for guardianship over you if you failed to consider the possibility. Proper estate planning now can ensure that you get to choose to whom you hand over authority instead of letting a court decide. An Indianapolis elder law attorney at Frank & Kraft discusses steps you can take now to avoid guardianship when you are older.
What Is Guardianship?
Guardianship is a legal process that grants the Guardian authority to care for and make decisions on behalf of an incapacitated person. To gain guardianship over someone, a petition must be filed with the appropriate court and the request evaluated by a judge after a hearing. Indiana recognizes three types of guardianship, including:
- Guardian of the person. A guardian of the person can make life decisions for the ward like health care, education, and welfare decisions.
- Guardian of the property. A guardian of the property handles decisions about the ward’s money, investments and savings as directed by a Judge. A guardian of the property must file an annual report about the property.
- Guardian of the person and property. This kind of guardian has responsibility of both the ward’s life decision and the ward’s property.
Why and How Should I Try to Avoid Guardianship?
Once a Guardian is appointed, that person (or agency) may have a considerable amount of authority over you and your life, including things such as deciding where you live and what doctors treat you as well as the authority to encumber your property and even enter into contracts in your name. Proper estate planning can help avoid the need for guardianship in the future. For example, consider incorporating the following in your estate plan:
- A Power of Attorney. A Power of Attorney (POA) is a legal document that allow you to grant someone of your choosing (your “Agent”) the authority to act on your behalf in legal matters. A POA can be general or limited. With a general POA your Agent has almost unfettered authority to act on your behalf whereas with a Limited POA the Agent only has the authority specifically enumerated in the POA document. If the POA is a durable POA the authority granted to your Agent will survive your incapacity.
- An Advance Directive. An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. In Indiana, an Appointment of Health Care Representative and Power of Attorney allows you to appoint an Agent to make decisions for you in the event you are unable to make them yourself because of your incapacity at some point in the future. Your Agent will have the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on your behalf. You may also choose to execute an Indiana Declaration, Indiana’s version of a living Will, which lets you state your wishes about health care if you can no longer speak for yourself.
- A Revocable Living Trust. A revocable living trust is an excellent incapacity planning tool because it allows you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the Successor Trustee. You then transfer assets into and out of the trust throughout your lifetime, maintaining the ability to control and manage those assets as the Trustee. If you become incapacitated, your designated Successor Trustee takes over control of those assets automatically, without the need for court intervention.
Contact an Indianapolis Elder Law Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions about avoiding guardianship, contact an experienced Indianapolis elder law attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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