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 plan ahead. By planning ahead, you can choose to whom you hand over authority instead of letting a court decide. A Carmel elder law attorney at Frank & Kraft discusses steps you can take now to avoid guardianship later.
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. In Indiana, and incapacitated person is someone who cannot fully manage their 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. 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.
Reasons to Avoid Guardianship
Once a Guardian is appointed, that person (or agency) will have a considerable amount of authority over you and your life. Your Guardian may decide where you live, what doctors treat you, and even whether you are allowed to drive or not. A Guardian may also control your finances, encumber your property, and even enter into contracts in your name. Imagine someone appointed by a judge — not chosen by you — having that much control over you and your assets. By planning ahead though, you can choose to whom you hand over that authority.
Steps to Help Avoid Guardianship
There are several steps you can take that can help you avoid becoming the subject of a guardianship petition later on in your life, including:
- Executing 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.
- Creating 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 in the event that you can no longer speak for yourself.
- Establishing 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 a Carmel 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 Carmel elder law attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
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