Are you an adult child who is having to watch your parent’s physical and/or mental health deteriorate? Are you concerned about your parent’s physical safety and/or ability to handle finances because of that deterioration? If so, you are probably struggling with a solution. Like most people in your position, the idea of taking away your parent’s independence by pursuing guardianship may not sit well with you. On the other hand, doing nothing could result in serious harm to your parent or to your parent becoming a victim of someone who preys on the elderly and disabled. The Indianapolis elder law attorneys at Frank & Kraft discuss how to know if guardianship is necessary.
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.
Is Guardianship the Best Option?
Deciding if guardianship is necessary is not easy. It may seem like a cruel option to take considering the limitations it places on your parent; however, if your parent is truly unable to care for herself/himself and/or to manage finances, failing to seek guardianship could place your parent in serious danger. Guardianship is a legal process that requires a prospective Guardian to file a petition with the appropriate court. Ultimately, the court will decide, at a hearing, if a Guardian is needed and, if so, which type and who should be appointed. The court is legally required to use the “least restrictive means” when making its decision. This means that the court will consider other options first. Specifically, the court will consider whether the Ward would be safe if something less than a full guardianship was in place. Sometimes, other legal options can be used to address an individual’s limitations without the need for guardianship, such as:
- Informal supports
- Supported Decision-Making Agreements
- Authorizations to share information
- Team-based or shared decision-making
- Power of Attorney (POA)
- Healthcare Representative
- Educational Surrogate
- Living wills and advance directives
- Protective orders
Before you decide to pursue guardianship, you should ask yourself a few important questions. For example, are you, or another family member, available to help watch over the proposed Ward on a regular basis? If not, can a home health care worker be retained to help? Would having someone at the house on a regular basis resolve your concerns? Likewise, is there a financial power of attorney in effect that could be used in lieu of appointing a Guardian?
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 – at least in the areas covered by the guardianship. It is for this reason that guardianship is considered the option of last resort by the courts. It is also why you should always consult with an experienced elder law attorney about the situation first before you commit to pursuing a guardianship. Your attorney can discuss any other potential options with you and help you rule those options out, if warranted, so you know that going forward with your petition for guardianship is indeed the best option.
Contact Indianapolis Elder Law Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about guardianship, 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.
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