If someone you love begins to lose the ability to safely manage personal, medical, or financial affairs, you may find yourself wondering what legal options are available to protect them. Whether the loss of capacity is caused by Alzheimer’s disease, dementia, a traumatic brain injury, developmental disabilities, or another serious medical condition, Indiana law provides a legal process known as adult guardianship that allows a court to appoint someone to make decisions on behalf of an incapacitated adult. Although guardianship can provide important protection, it is also one of the most significant legal actions a court can take because it transfers important decision-making authority from one adult to another. As a result, guardianship is generally considered a remedy of last resort after less restrictive alternatives have been evaluated. Fortunately, proactive estate planning often allows you to prepare for future incapacity in a way that may reduce or even eliminate the need for guardianship altogether. To help you prepare your own estate or evaluate the need to petition for guardianship over a loved one, the Indiana estate planning attorneys at Frank & Kraft have put together the following questions and answers about guardianship in Indiana. If you have additional questions or concerns, please feel free to contact our office to schedule an appointment.
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Adult guardianship is a legal relationship established by an Indiana court when an adult is no longer capable of making responsible decisions regarding personal care, healthcare, finances, or property because of incapacity or disability. The individual who needs protection is known as the ward, while the person appointed by the court is known as the Guardian. Indiana guardianship laws are intended to balance the need to protect vulnerable adults from neglect, abuse, exploitation, or financial loss with the need to preserve as much of the ward’s independence and personal autonomy as possible. A court will only appoint a Guardian when it determines that the individual truly requires legal protection and that no less restrictive alternative adequately addresses the situation.
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Indiana recognizes several different forms of adult guardianship because every individual’s circumstances are unique. Rather than granting the same authority in every case, the court attempts to tailor the Guardian’s authority to the ward’s specific needs. The primary types of guardianship include:
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- Guardianship of the Person: Authorizes the Guardian to make decisions involving healthcare, living arrangements, personal care, education, and general welfare.
- Guardianship of the Estate: Authorizes the Guardian to manage the ward’s financial affairs, including income, investments, bank accounts, bills, and other assets.
- Plenary Guardianship: Combines both personal and financial decision-making authority.
Limited Guardianship: Grants only those powers that are necessary while allowing the ward to retain decision-making authority in other areas.
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A court may determine that guardianship is appropriate when an individual can no longer safely manage personal or financial affairs due to physical or cognitive impairment and no less restrictive alternative will adequately protect that person. It is important to understand, however, that guardianship should never be based solely on advanced age or the existence of a disability. Likewise, simply making poor financial choices or decisions with which family members disagree is not enough. Adults generally retain the right to make decisions that others consider unwise, provided they still possess legal capacity. Guardianship becomes appropriate only when an individual can no longer make informed decisions and substantial harm may result without legal intervention.
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The guardianship process begins when an interested person files a petition with the appropriate Indiana court requesting appointment of a Guardian. The petition must explain how the proposed ward is incapacitated and why guardianship is necessary as well as why the proposed Guardian is qualified to serve and which type of guardianship is requested. After the petition is filed, notice must be provided to the proposed ward and other interested family members. The court may appoint a Guardian ad Litem or another investigator to evaluate the circumstances and make recommendations. Medical evaluations or psychological assessments may also be required to assist the court in determining whether guardianship is warranted. Following a hearing, the judge determines whether guardianship is necessary and, if so, who should serve as Guardian and what powers should be granted.
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Although guardianship is intended to protect vulnerable adults, Indiana law also recognizes that guardianship significantly affects an individual’s legal rights. Consequently, the proposed ward is entitled to important procedural protections throughout the process, including the right to:
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- Receive notice of the proceedings.
- Attend the guardianship hearing.
- Be represented by legal counsel.
- Present evidence.
- Object to the appointment of a Guardian.
Have the court consider medical evidence and other relevant testimony before making a decision.
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Serving as a Guardian involves far more than simply helping a family member. A Guardian is a fiduciary role, meaning the Guardian has a legal obligation to always act in the ward’s best interests. Depending on the type of guardianship, responsibilities may include:
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- Coordinating healthcare.
- Making residential placement decisions.
- Managing investments and bank accounts.
- Paying bills and protecting assets.
- Applying for government benefits.
- Maintaining accurate financial records.
Filing reports required by the court.
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Although guardianship can be an essential legal tool, it also limits an individual’s right to make independent decisions. Once a Guardian is appointed, that person may have authority over important aspects of the ward’s life, including medical treatment, financial management, housing decisions, and other personal matters. Because guardianship transfers so much authority, courts must consider less restrictive alternatives whenever possible.
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Yes. One of the most valuable benefits of a comprehensive estate plan is that it allows you to prepare for the possibility of future incapacity while you are still able to make your own decisions. By naming trusted individuals to act on your behalf and clearly documenting your wishes, you may eliminate the need for your family to petition the court for guardianship. A comprehensive estate plan allows you, not a judge, to decide who should manage your financial affairs or make healthcare decisions if you become incapacitated.
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Several estate planning tools can significantly reduce the likelihood that a court-appointed Guardian will become necessary. A Durable Financial Power of Attorney allows you to appoint an Agent to manage your financial and legal affairs if you become incapacitated. Because the document remains effective after incapacity, your Agent can continue paying bills, managing investments, signing contracts, and handling other financial matters without seeking court approval. An Appointment of Health Care Representative authorizes someone you trust to make healthcare decisions if you cannot communicate with your physicians. Combined with an Indiana Declaration, these documents provide guidance regarding medical treatment and end-of-life decisions while giving your chosen representative the legal authority to act on your behalf. A Revocable Living Trust also serves as an important incapacity planning tool. While you remain healthy, you generally serve as your own Trustee and retain complete control over trust assets. If you later become incapacitated, your designated Successor Trustee automatically assumes management of those assets according to the terms of the trust without the delays and expense associated with a guardianship proceeding.
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If you become incapacitated without executing documents such as a Durable Financial Power of Attorney, healthcare directives, or a Revocable Living Trust, your family may discover that they have little or no legal authority to help you.Financial institutions generally cannot allow another person to access your accounts simply because they are your spouse or adult child. Likewise, healthcare providers may be unable to accept medical decisions from family members who lack legal authority to act. As a result, your loved ones may have no practical alternative other than petitioning an Indiana court to appoint a Guardian.
Contact Us
If you have additional questions, contact an experienced Indianapolis, Indiana estate planning attorney at Frank & Kraft. by calling (317) 684-1100 to schedule your appointment today.
