A guardianship is a legal proceeding that appoints a person to take care of a minor or individual and/or manage that person's assets and affairs.
Guardianships in Indiana cover a multitude of people with various incapacities or disabilities. The incapacity may be due to age - as is the case with persons under 18. Additionally, it could be due to disability, temporary or permanent cognitive issues, and advanced age. Courts in Indiana are cautious in establishing guardianships because laws are written to protect people from limitations of their freedoms. Courts are wary in giving others the ability to make decisions affecting another individual. Guardianships can be temporary -up to 90 days - or permanent - until further court order. It is important to remember that guardianship is never truly permanent. A court can always remove guardianship if the individual regains the capacity to make their own decisions.
The selection of a guardian is critical. A guardian cannot have a felony conviction and must show that he/she is the best-suited person to serve. The wishes of the parents are an important consideration in cases involving minors. For example, in their Last Will and Testament, parents may nominate the guardian they choose in the event of their deaths. For an incapacitated adult, the parents are often appointed guardians with a successor - such as a sibling. In the event of incapacity due to age or illness, the court will want to see a spouse, child, or other relative petition for guardianship.
Guardians must be trustworthy and able to make decisions based on the incapacitated person's best interests. They must act in the best interest of the incapacitated person. Guardians also have a fiduciary duty to the incapacitated person. For example, parents who become guardians of their incapacitated adult child carry a fiduciary duty. They are no longer just caring for their child as parents; they are legal fiduciaries. As a fiduciary, the guardian has a legal obligation to provide care and support. If care and support are not appropriate, they answer to an Indiana court.
There are alternatives to guardianship; two common alternatives are the General Durable Power of Attorney and/or Healthcare Power of Attorney. These much less restrictive measures allow the individual to continue to make decisions as long as he/she can do so. Decisions regarding guardianship can be made while an individual is able to, and then allows the attorney-in-fact to act on the individual's behalf or, if necessary, request an appointment as guardian.
There are several considerations regarding guardianship that require careful thought. As an Indiana Attorney focused on family law matters, I am happy to talk through these considerations and help you with guardianship and/or powers of attorney. Please contact me for more information.