Deciding to petition to become your parent’s Guardian is never an easy decision to make. It often feels as though you are taking away your parent’s independence. If you truly believe your parent needs a Guardian, however, and you fail to step up and become that Guardian, your parent could suffer serious and irreparable physical, mental, or financial harm. Keep in mind though that if you move forward with a guardianship petition, someone may object to your appointment. To help prepare you, the Indianapolis elder law attorneys at Frank & Kraft discuss the possibility that someone will object to your appointment as your parent’s Guardian.
What Is Adult Guardianship?
Guardianship is a legal relationship that gives one person (the “Guardian”) the legal authority to make decisions for, or act on behalf of, another person (the “ward”) based on the disability or incapacity of the Ward.
- Guardian of the person. A guardian of the person can make personal decisions for the ward such as those related to the health care, education, and welfare of the ward.
- Guardian of the estate. A guardian of the estate handles decisions about the ward’s money, investments, and other assets.
- Guardian of the person and estate. This kind of guardian has responsibility for both personal decisions related to the ward and for decisions related to the ward’s property.
Guardianship is considered the option of last resort because of the extent of the authority it gives to a Guardian and, more importantly, the authority it takes away from the Ward. Once a Ward has been appointed, the Ward’s autonomy is basically gone in the areas covered by the guardianship. It is for this reason that guardianship is considered the option of last resort by the courts.
Petitioning for Guardianship in Indiana
If you have decided that guardianship is necessary, you will need to petition a court. Ultimately you must prove to the court that the Ward (in this case, your parent) is incapacitated. Indiana Code 29-3-1-7.5 defines an incapacitated person as someone who has a developmental disability or who is unable to manage in whole or in part the individual’s property and/or to provide self-care “because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity.”
Both the proposed ward and close family members must be served with a notice of the petition and given the opportunity to object to the appointment of a Guardian. The court may also appoint a Guardian Ad Litem to protect the best interests of the proposed Ward during all court proceedings.
Objecting to Guardianship
When you file the petition for guardianship with the court, people entitled to receive notice of that petition may formally object to either the appointment of a guardian in general and/or to your appointment as a Guardian. Your parent may even object. A formal objection must be filed with the court. The court will typically set the matter for a hearing at which time both you and anyone who filed an objection will be entitled to present testimony and evidence supporting your positions. The court will ultimately decide if a guardian is necessary and, if so, whether you are an appropriate person to appoint to the position.
Contact Indianapolis Elder Law Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about adult guardianship in Indiana, contact the experienced Indianapolis elder law attorneys 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.
- Debunking Estate Planning Myths - May 30, 2023
- Do I Need an Indiana Advance Directive? - May 25, 2023
- Which Document Is More Important in My Estate Plan — a Will or a Living Trust? - May 23, 2023
