A guardianship is a formal legal action brought in a court with probate jurisdiction for the purpose of determining whether a person is incapable of managing their finances or properly taking care of their person. Such actions are brought as to incapacitated adults or for a person who is deemed incapacitated by way of not attaining the age of eighteen (18) years. Whether incapacitated by physical or mental conditions or by way of being underage, such person is typically designated as the “Protected Person.”
A Guardian can be anyone the court determines to be the most suitable person. In Indiana the priority for appointment of a Guardian is established by statute with the highest priority being a person designated in a Protected Person’s durable power of attorney, then a person designated as by the Protected Person as a standby guardian, then the spouse of the Protected Person, then an adult child of the Protected Person, then a parent of the Protected Person, then a parent of the minor Protected Person, then a blood relative of the Protected Person with whom the Protected Person has resided for more than the immediate past six (6) months, and, finally, a person nominated by the Protected Person who is caring for or paying for the care of the Protected Person.
However, the court, acting in the best interest of the Protected Person, may pass over a person having priority and appoint a person having a lower priority or no priority to appoint someone the court believes will act in the best interests of the Protected Person.
As to an incapacitated adult, such incapacity must be established by medical professionals.
There are three (3) types of guardianships:
Guardian over the Protected Person’s estate; a Guardian over the Protected Person’s person; and, a Guardian over both the Protected Person’s
person and estate.
The duties of a Guardian of an estate include to:
- Locate, collect and maintain all property owned by the Protected Person. Keep motor vehicles and real estate insured and protected.
- File a verified inventory and appraisal of all the property belonging to the Protected Person.
- File a verified current account of all the income and expenditures of the guardianship every two (2) years after appointment.
- File and pay taxes on the Protected Person’s income and assets.
- Open a guardianship checking account in the name of the Guardian to be used only for all payments and deposits on behalf of the Protected Person.
- Obtain approval from the Court to use guardianship assets, other than for normal bills.
- If applicable, timely qualify the Protected Person for Medicaid or other public assistance.
- Protect and preserve the Protected Person’s property, to account for the use of the property faithfully, and to perform all the duties required by law of a guardian, irrespective of whether the Protected Person is a relative of the Guardian.
The duties of a Guardian of an estate include to:
- Become sufficiently acquainted with the Protected Person and maintain sufficient contact with the Protected Person to know his or her capabilities, disabilities, limitations, needs, opportunities, and physical and mental health.
- Be responsible to make sure the Protected Person has an adequate place to live that is appropriate for the Protected Person’s needs.
- Be responsible to make sure that the Protected Person receives needed and appropriate medical care, including to consent to medical or other professional care and treatment and consent to the Protected Person’s admission to a health care facility.
- Encourage and promote the self-reliance and independence of the Protected Person and, to the extent that the Protected Person is able, delegate to the Protected Person certain responsibilities for decisions affecting the Protected Person’s well-being.
- File a report with the Court at least every two years, stating the present residence of the Protected Person and a statement of the Protected Person’s current
condition and general welfare.
If the Protected person is a child, the Guardian of the person must pay particular attention to the child’s: food, clothing and shelter; safety and protection; physical and emotional growth; medical and dental care; education; and, any special needs.
It is not unusual for disputes to arise in guardianship actions involving disputes as to the Protected Person’s degree of incapacity and challenges as to the suitability of a particular person to serve as Guardian. These disputes are frequently vigorously litigated and can mount large expenses sought to be charged to the Protected Person’s estate.
We have frequently been involved in representing persons who did not want a guardianship to be created over their estate and person, as well as those who believed that the creation of a guardianship was important and necessary.
There are also alternatives to the appointment of a guardian and you are encouraged to contact us for further information regarding guardianship or available alternatives.
To schedule an appointment with an experienced guardianship attorney, call 317-842-8000, or contact us by e-mail.