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Guardianships

My child has special needs and will turn 18 soon. Will I need to be appointed as his guardian?

Yes, generally. Once your child turns 18, you no longer have authority to act on behalf of that child. If you are interacting on behalf of the child with the school system or Social Security, you will need to be given authority to act on behalf of your child. If the child is able to do so, he can grant you that authority through a Durable Power of Attorney. More often than not, it is necessary to have the Court grant you that authority and appoint you as his guardian.

My parents are elderly. Should I consider becoming their guardian?

You should consider it, but do not consider it lightly. Indiana law properly treats the appointment of a guardian over someone as a significant event. Legally speaking, a Court will not appoint a guardian for someone unless that person is determined to be "incapacitated", and the appointment of a guardian is necessary. A person is not incapacitated simply because he or she is elderly; similarly, a person is not incapacitated simply because he or she has a special need. Under Indiana law, a person is incapacitated only if the person is unable to care for himself or herself, or is unable to manage his or her property.

Practically speaking, you should also consider the appointment of a guardian as a sort of last resort. The request for the appointment of a guardian - and the inherent allegation that your loved one is "incapacitated" - can be difficult. Accordingly, we work with our clients to explore alternatives to a guardianship. Sometimes it is necessary. When the appointment of a guardian is necessary and appropriate, we work with our clients to navigate through the process in a way that seeks to maintain the loved one's dignity and minimize the potential for conflict.

What is the procedure for being appointed as guardian?

A guardian is appointed to that role by a Court, and generally a court in the County where the "protected person" resides. The person seeking to be appointed as guardian initiates the process by filing a petition, setting forth the bases for the appointment of a guardian.

Indiana law generally requires that the Court appoint a "guardian ad litem" - a person who is to act on behalf of the alleged incapacitated person in the course of the proceedings. Notice of the guardianship proceedings must be given to certain individuals, including the person who is the subject of the proceedings.

The Court will then set a hearing to hear evidence and determine (i) whether the subject of the guardianship is incapacitated, (ii) whether the appointment of a guardian is necessary, and (iii) whether the proposed guardian is qualified and should be appointed as guardian. The time line for the process may vary among counties, but can generally be completed within sixty (60) days in most cases. If an emergency exists, there are statutory procedures for expediting the process.

In order to prove that an individual is incapacitated, the court generally will require testimony or a written statement from a physician that the physician believes the person is incapacitated based on their examination of the person. In addition, the subject of the guardianship must be present for the hearing unless there is testimony from a physician that the person's appearance in court would jeopardize that person's safety. The mere fact that the person would not understand the proceedings does not excuse their absence from the hearing.

What are the ongoing obligations of a guardian after appointment?

Generally speaking, the guardian is required to make sure that the protected person is taken care of, and that the protected person's property is maintained and preserved. That general duty may play out in different ways in any given case, taking into consideration the protected person's condition, and the nature and extent of his or her property. A guardian should seek counsel to determine whether there are any particular nuances to his or her duties, given the facts of the guardianship situation.

Procedurally, the guardian also has a duty to account to the Court which appointed him or her as guardian. The guardian must file an inventory of guardianship assets within sixty (60) days of appointment. The guardian must then specifically account for all receipts, disbursements, and the assets on hand. The first such accounting is due a year after appointment as guardian; subsequent accountings must be filed every other year.

I do not want my children to have to go through the hassle of being appointed as my guardian if I should require help. What can I do to plan ahead?

It is possible to plan ahead, and it is a good idea. A little bit of planning in this area can do much to ease the inherent difficulty of transitioning authority in the period when you may need some help.

The best way of planning ahead is to create and execute a Durable Power of Attorney document. With such a document, you can grant someone the authority to act on your behalf. You can make the authority very broad and general, or limited to certain items. You can also control when such authority becomes effective. A companion to the Durable Power of Attorney is an Appointment of Health Care Representative document, in which you specify who will make medical and health care decisions for you when you are unable to do so.

Another method of planning ahead is with a revocable trust. Trusts are usually thought of as a means of avoiding probate after your death. A trust can also be an effective means of granting someone the authority to act on your behalf and handle assets which are in the trust, during a period when you are living but are unable to give proper attention to your affairs.

Power of Attorney documents and trusts are effective means of planning ahead; they are not perfect solutions. In any situation where someone is acting on behalf of another, there is the potential for intentional misdeeds and inadvertent oversights. If you are looking into either of these alternatives, you should seek counsel to be sure that you have created a proper framework for your children or other loved ones to act on your behalf.

What is the difference between a guardianship and a power of attorney?

A Durable Power of Attorney and a guardianship are similar in the sense that, in each instance, one person is granted the authority to act on behalf of another. In both cases, the authority can be very broad or very limited. A person who is acting under authority from a Durable Power of Attorney can generally do most of the same things that a guardian can do.

There are differences between a Power of Attorney and a guardianship. The first difference is the source of the authority. A Power of Attorney is a document by which an individual, a "principal", will grant authority to another to act on his or her behalf. In a guardianship, the Court appoints the guardian and grants them authority to act.

Another difference is the status of the principal or protected person. An individual can make a Durable Power of Attorney effective immediately, and without regard to whether the person is incapacitated. A guardian cannot be appointed until the Court finds that the protected person is incapacitated. Further, Indiana law provides that the protected person cannot enter into a contract. That limitation may be significant if there is concern that the protected person is susceptible to being taken advantage of.

Yet another difference is the accounting duties of the fiduciary. A person acting under a Power of Attorney has no general duty to account, unless otherwise provided for in the document which grants him authority. A person acting under a Power of Attorney may also be required to account upon request from certain individuals. A guardian, by contrast, has an affirmative duty to account to the Court on a regular basis for all activities as guardian.

What is the cost of a guardianship?

The cost of the guardianship proceeding may vary, depending upon the number and nature of issues in any given situation. The total cost involves some fixed costs - such as filing fees with the Court (which the Court may waive in certain cases of indigency) - and attorney fees. The attorney fees will likely include the attorney representing the person petitioning to be appointed as guardian, as well as the guardian ad litem, who is generally a practicing attorney.

For relatively simple guardianship matters, the total amount of attorney fees should be less than $1,000, and may be even less. For matters which are more complicated or which are contested, the cost may be more significant, depending upon exactly what is involved. The ongoing responsibilities of a guardian for accounting may also have some cost, which can generally be controlled by working with counsel to identify the information which will be needed to complete such an accounting, and to keep such information organized.

The cost of the guardianship is generally paid from the protected person's assets. In Allen County, Indiana, the Volunteer Lawyer Program may be available to assist with setting up a guardianship at a reduced or no cost in certain circumstances, based upon the parties' ability or inability to pay for the costs of the guardianship.