Guardianships for Incapacitated Adults
The purpose of an adult guardianship is to provide care for the person and/or estate of an adult who has been deemed incapacitated by the court, known as the protected person. A guardian is a person appointed by the court who has the legal authority to make decisions on behalf of the protected person. A guardian can be held liable if they violate the duties they owe to the protected person under the law. It is always best for a guardian to be represented by an attorney, and sometimes the court will require the guardian to have an attorney. Best practices are for the protected person to also have their own attorney to adequately represent their interests. It is best practice for the protected person to have input into who will be appointed as guardian, as long as the person is a safe and trusted adult who will consider the best interests of the protected person. If there is not a safe and trusted adult, then a neutral, third-party guardian should be considered.
Guardianship law in Indiana was updated in 2019. In order to protect the rights of older and disabled adults across the state, it is necessary to be aware of what those updates are. Capacity is a legal determination, which can only be made by a court of law. Neither a doctor, therapist, or guardian ad litem, can make the legal determination if someone is incapacitated. A judge can take the expert opinions of a doctor, therapist, or guardian ad litem into consideration when determining if the adult lacks the necessary capacity to provide for their care, which would require a guardian, but that is a determination only the court can make.
Due to the restrictions a guardianship places on an older adult’s inalienable rights, it is now a requirement in the state of Indiana for a guardian to consider and thoroughly exhaust less restrictive alternatives before it is appropriate to petition the court for guardianship. In 2019, Indiana updated the guardianship statutes to include less restrictive alternatives including, but not limited to: (1) a supported decision making agreement (as defined in Ind. Code § 29-3-14-2); (2) appropriate technological assistance; (3) appointment of a representative payee; (4) appointment of a health care representative (as defined in I.C. § 16-36-1-2); and (5) creation of a power of attorney (as defined in I.C. § 30-5-2-7). There are many more formal and informal options not included in the statute, which can help an older/disabled adult continue to live independently for as long as possible such as online bill pay, grocery delivery, appropriate assistive equipment, in home nursing care, etc. If a guardianship becomes appropriate, then the guardian has a duty under the law to continuously make a re-determination if guardianship is still necessary. If guardianship becomes unnecessary at any point, then a guardian has a duty to terminate the guardianship or to modify the guardianship to a less restrictive alternative to ensure the rights of the protected person are hindered as little as possible.
To pursue guardianship of an individual, once deemed necessary, you need to file a Petition for Guardianship with the applicable court. After a petition is filed, then the court must issue notice to all parties and hold a hearing on the petition. The person alleged to be incapacitated must be present at the hearing, unless impossible, at which point the person should be given the opportunity to attend remotely, or for the hearing to be held where the protected person is located (home, hospital, nursing home, etc.). The court will take evidence from the parties and make a legal determination if the person is incapacitated and needs a guardian. The court can limit the guardianship to just care of the person, or just the care of the person’s estate. A guardianship should always be limited as much as possible to protect the rights of the protected person.
A guardian is required to submit a biennial accounting of the guardianship. This accounting must include the redetermination if the guardianship is still necessary, or if it should be modified or limited in some way as previously explained. Further, the accounting must include a financial update to the court of the protected person’s estate. Accounting is necessary to protect the interests and rights of the protected person, but also to ensure the estate of the protected person is overseen to ensure there is no misappropriation of the estate funds.
When determining what an older or disabled adult may need in the form of supportive assistance, you should always ask what the strengths of the person are. Those strengths should be used to tailor a course of action, which will allow the adult to retain as many of their rights and as much of their independence for as long as possible. As required by statute, less restrictive alternatives must be exhausted before guardianship is appropriate.
This article is for information purposes only and is not intended to constitute legal advice.