Good planning for the possibility of future incapacitates, can decrease the likelihood of ever needing a guardianship. However, if documents are not in place, or even if they are, a guardianship can be needed in certain situations.
What is an adult guardianship?
An adult guardianship is a court proceeding by which a court adjudicates whether a person has the capacity to make financial and medical decisions for herself. It is a serious proceeding. A determination of incapacity means the loss of many legal rights, including the ability to enter into contracts. If the court determines that an individual is incapacitated, the court appoints a guardian to make decisions for the incapacitated person. The guardian role is similar to that of an attorney-in-fact and health care representative, documents that can be prepared when an individual has capacity, for future incapacity planning.
When is a guardianship needed?
A guardianship may be needed when an individual is no longer able to make financial and health decisions for himself. This may be due to illness, injury, or other cause. Guardianship is also available for children due to their age of minority. Even if Power of Attorney and Appointment of Health Care Representative in place, a guardianship can be necessary, particularly in cases of financial elder abuse or people seeking to take advantage of the incapacitated person.
Who can be appointed as guardian of an adult?
Under Indiana law, the court will first look to the individual named as in a Power of Attorney document as the Attorney-in-Fact to serve as guardian. If there is no qualified Attorney-in-Fact, the court would next give priority to a spouse followed by an adult child, if that person is suitable and willing to serve. An independent person or an corporate fiduciary could also serve in this role.
What is guardianship of the person?
A guardian of a person is responsible for the food, health, and shelter needs of an incapacitated person. The guardian is responsible for the physical and emotional well being of the incapacitated person. The guardian makes healthcare decisions for the incapacitated person and is responsible for making sure the living arrangements for the incapacitated person are appropriate for their needs.
What is a guardianship of the estate?
A guardian of the estate is responsible for the financial affairs of the incapacitated person. The guardian will pay the incapacitated person’s bills and manage their finances. The guardian has a duty to prepare and file an inventory with the court and file regular accounting.
Does a guardianship process require the assistance of an attorney?
In addition to the obtaining the assistance of an attorney in the guardianship filing and procedure with the court, once appointed, a guardian will benefit from the assistance and advise of legal counsel in carrying out their responsibilities and duties. An attorney will prepare the guardianship petition, represent the potential guardian before the court, and will assist with the preparation of the inventory and accounting to be filed with the court. The guardian serves in a fiduciary role, and an attorney can advise the guardian as to his responsibilities and duties in that role.
An alleged incapacitated person also has a right to be represented by counsel in the guardianship proceedings, and may wish for counsel to protect his rights.