Guardianship in Indiana
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The statutes found at IC 29-3-1 govern guardianship in
Indiana. The statutory requirements can be quite complex; but the following brief article is designed to provide an overview
of some of the basic concepts contained in the statutes.
A guardianship is a legal relationship between a competent
adult and a person whose disability causes him or her to be incompetent in the eyes of the law. This person is referred to
as a protected person. The disability may result from mental illness, developmental disability, age, accident, or other causes.
A disability or mental illness is not, by itself/ sufficient reason to declare a person incompetent. A person may
not be declared incompetent simply because it saves someone money or because it is more convenient for those related to the
protected person.
The appointment of a guardian for mental impairment or incompetence turns on a person's ability
to "understand act with discretion in the ordinary business affairs of life." In other words, the ability to provide
for themselves or manage their affairs.
In a guardianship, the guardian is given the right to make decisions for
the person who is declared incompetent. When a guardian is appointed, the Court gives the guardian the authority to exercise
certain legal rights in the best interest of the ward. The Court takes rights away from the protected person when it gives
them to a guardian.
A guardian's authority is limited to those areas of decision making for which there is evidence
to indicate that a person is incapacitated. Some incapacitated persons are able to make responsible decisions in some, but
not all, areas of their lives. In these situations the Court may limit the guardianship to only those areas in which the incapacitated
person is unable to make responsible decisions.
Some individuals require a guardian who has the responsibility
for both the person and the estate. The primary responsibility of the guardian with duties pertaining to the person is to
provide consent for issues such as medical treatment and living situation. A guardian of the estate is responsible for managing
some or all of the property and/or income of the protected person.
Common areas of responsibility for a guardian
include the following: (a) refusing or consenting to medical treatment; (b) treatment in a hospital or nursing home; (c) possessing
or managing real estate, personal property, or income; (d) initiating, defending, or settling lawsuits; (e) lending or borrowing
money; (f) paying or collecting debts; and (g) decisions concerning education.
The court looks at each individual's
unique situation and tries to impose only those conditions that are absolutely necessary to maintain that individual's well
being.
In selecting an individual to serve as guardian, consideration is given to those who play a significant
role in the person's life. The guardian should be someone who is both aware of and sensitive to the disabled person's needs
and preferences. It is very important to remember that a guardianship is a relationship in which one person places trust and
confidence in the decision-making ability, honesty, and loyalty of another.
A guardianship can be requested
by anyone who is interested in the proposed protected person's well being. Usually, an attorney is hired to file a petition
in the probate court in the county of residence of the protected person. The proposed protected person is also entitled to
an attorney at the hearing. The Court will appoint an attorney if he or she does not have one.
The following are
some alternatives that should be considered before petitioning the court for a guardianship:
Conservatorship
is a voluntary proceeding in which a person (the conservatee) asks the Probate Court to appoint a specific individual (the
conservator) to manage his or her financial affairs only. The Court must find the petitioner incapable of managing his or
her financial affairs, but capable of making the decision to have a conservator appointed to do so.
Power
of Attorney is a contract between two individuals where one party (the principal) gives to the other (the agent)
the authority to make any number of decisions (e.g. medical, usual and customary bill payment, financial) on his or her behalf.
The person granting the power of attorney must be mentally competent to enter into the contract. If the contract is made "durable,"
the power of attorney remains in effect if the principal becomes mentally incapacitated. The validity of a power of attorney
ends upon the death of the principal.