For just about anyone, the thought of becoming incapacitated is unpleasant and overwhelming. You might encounter a situation where you have a loved one who becomes incapacitated and is no longer able to care for their health, property, finances and more. In these situations, a person known as a guardian might become legally obligated to protect the incapacitated person. Here’s an overview of what guardianship entails and what you could do if you have questions about becoming a guardian in Indiana.
What Is Incapacity?
According to Indiana laws governing guardianships, you are an incapacitated person if you are partially or completely unable to manage your property or care for yourself, or both, because of one of the following:
- mental illness, mental deficiency or insanity
- physical illness
- habitual drunkenness or excessive use of drugs
- incarceration, confinement or detention
- fraud, duress, or undue influence by others
Mental illness comprises disorders affecting behavior, thinking and mood. Common examples include schizophrenia, depression, bipolar disorder (manic depression), and severe anxiety.
Indiana law also considers you to be an incapacitated person if you have a developmental disability – a severe, chronic disability in which the following applies with respect to the disability:
- it is attributable to an intellectual disability, epilepsy, autism, cerebral palsy, or another condition which closely relates to an intellectual disability in that it impairs general intellectual functioning or adaptive behavior and it requires service or treatment similar to that which is provided to someone with an intellectual disability
- it manifests before you are 22 years of age
- It likely will continue for an indefinite period of time
- It substantially limits your major life activities such as breathing, mobility, hearing, speaking, seeing, performing manual tasks, standing, lifting, sleeping, working, self-care, learning, economic self-sufficiency, self-direction, or capacity for independent living
Note that the above mentioned developmental disability definition is not applicable to services which an individual receives through an intermediate care facility (ICF, IID) for individuals with intellectual disabilities, or through a home and community-based Medicaid waiver. Medicaid considers a developmental disability as one which is severe, chronic and that manifests during the developmental period that results in impaired intellectual functioning or deficiencies in essential skills.
Finally, an incapacitated person under Indiana law can be defined as someone who cannot be located with reasonable inquiry.
Guardianship Types, Powers
When a person is incapacitated (known as a protected person), there is a legal process by which the Indiana court appoints someone to have the legal authority to make decisions for them. This is known as guardianship. Guardianships often come into the picture when a person is incapacitated due to old age or an illness. These proceedings also come up for developmentally disabled adults and for minor children.
Guardianships in Indiana include:
- Guardian of the person. You manage proper treatment and living conditions for the protected person
- Guardian of the estate. You manage and oversee the protected person’s financial and investment affairs
- Guardian of the person and estate. You are responsible for proper treatment and living conditions of the protected person and for managing and overseeing their financial and investment affairs
As a guardian, you might have full control over the protected person or their property, or both. Limited guardianship means that you have limited powers over the protected person, their property, or both. This means that you might be responsible for making some decisions but not others. In fact, Indiana allows two people to act as guardian for someone at the same time, sharing guardianship responsibilities.
Depending on your status as guardian, you might be able to do things like receive the protected person’s money and apply those funds towards their living arrangements, personal effects, medical care, education or other services. You also might be able to invest the person’s money, pay people who care for them, delegate responsibilities, select their place of living, arrange for their medical care, protect their personal property, enter into contracts on their behalf, and provide consent.
Some adults might be partially or totally incapacitated. Being partially incapacitated means that you need at least some amount of help to meet your health and safety needs or to manage your finances. A court could select a guardian to meet those specific needs. In fact, when it is in the protected person’s best interests, the court must limit the scope of the guardianship to promote that person’s independence, self-reliance and self-improvement. In these situations, the court might only appoint someone for the protected person’s life when that person is both incompetent and has a need. Incompetency generally refers to a person who is unable to manage their own affairs as determined by a court of law, not merely a physician.
Temporary guardianships are for emergencies that are not expected to last longer than 30 days. However, a permanent guardianship typically remains in place for the life of the protected person unless the court finds that the person is no longer incapacitated, they have relocated to another state, or they have property valued at $3,500 or less. The court could also terminate a guardianship based on finding that the guardianship is no longer necessary or for other purposes.
The court may authorize a person to represent an incapacitated person on a temporary basis in a protective proceeding or single-transaction proceeding. The court has flexible power to customize a protective order if the court finds that a customized solution is better than a full guardianship.
Who Gets To Be Guardian If You Are Incapacitated?
Here’s who the court considers in order of priority:
- The person who you nominate as your health care representative or attorney-in-fact according to a durable power of attorney
- A person designated as a standby guardian
- Your spouse
- Your adult child
- Your parent
- Someone named in your deceased parent’s will
- Someone who you are related to by blood or marriage who has lived with you for the last 6 months
- Someone who you nominate as your guardian
- Someone who the court finds to be best qualified
How Do You Obtain A Guardianship Over Someone?
In Indiana, guardianship is a court-supervised procedure. The Indiana probate court located in the protected person’s county typically has exclusive jurisdiction over these proceedings. To become guardian:
- Get an attorney to help you with the process and applicable paperwork
- Gain a substantial understanding of the protected person’s finances and health
- If the person is incapacitated due to their health, then obtain a letter or report from that incapacitated person’s physician which verifies that the person is not able to manage their care and finances
- File a Petition for Guardianship with the probate court
- Notify the incapacitated person, their close family members, and those who have had custody over the incapacitated person or who have cared for them
- Pay the probate court a filing fee
- The court hears sworn testimony from witnesses who support or oppose the Petition, and determines if the evidence is sufficient to support your appointment as guardian
- The court determines whether to appoint you, and if so, the judge will issue you letters of guardianship enabling you to act on the protected person’s behalf
A 2019 change in Indiana is guardianship law requires the Petition to include:
A description of the petitioner’s efforts to use less restrictive alternatives before seeking guardianship, including:
(A) the less restrictive alternatives for meeting the alleged incapacitated person’s needs that were considered or implemented;
(B) if a less restrictive alternative was not considered or implemented, the reason that the less restrictive alternative was not considered or implemented; and
(C) the reason a less restrictive alternative is insufficient to meet the needs of the alleged incapacitated person.
There may be critical issues that come up in the proceedings which impact the court’s decision to appoint a guardian. Specifically, the court has to decide if the protected person is truly not able to make personal decisions and financial decisions. The court has to determine whether the person who is seeking guardianship or another person out to be appointed guardian. Also, the court has to consider who should have the ability to spend time with the protected person.
For this reason, you might have to provide the court with professional evaluations as well as guardianship plans for the care and treatment of the protected person or their property, or both. Also, the court will look into the criminal and civil background of the person who is slated to be guardian.
Many Indiana Probate Code provisions apply to guardians and guardianship proceedings. If you are appointed guardian, be prepared to segregate your accounts from those of the protected person. You must also prepare and file an inventory of guardianship property with the court within 90 days after your appointment as guardian. A guardian must file a written report of the guardian’s actions and the incapacitated person’s status with the court every two years, so you’ll also want to keep all receipts and statements and account for all transactions. As guardian, you are not responsible for the protected person’s debt, but you could be liable to the protected person or other parties for fraud, negligence or bad faith. Remember that you have a fiduciary duty as guardian to act in the protected person’s best interests.
As for fees, you and your lawyer are entitled to be paid reasonable expense reimbursements and reasonable fees for time spent on guardianship business, but you should keep meticulous records of your time. Keep in mind that the court must approve your fee to determine whether it is reasonable.
What Rights Does An Incapacitated Adult Have?
As an adult, you have the right to control your assets, get married, enter into contracts, join the military among other things. Your rights might be impacted if you are incapacitated and subject of a guardianship proceeding. However, as the incapacitated person in Indiana, you still have rights. This includes the right to:
- Receive notice of the guardianship proceeding
- Be present at the guardianship hearing
- Have witnesses be present for questioning
- Present evidence
- Challenge the guardianship
- Visit family and friends
It is important to note that if you do not have an attorney for purposes of a legal proceeding that determines someone’s guardianship over you or your property, then an attorney known as a guardian ad litem will be appointed to represent you. This type of attorney has a duty to uncover your best interests and advocate for you. A guardian ad litem specifically represents an incompetent person or minor person during litigation. Once that litigation ends, the guardian ad litem’s authority ends.
Key Distinctions Between Guardian And An Attorney-In-Fact Or Health Care Representative
In Indiana, as long as you are an adult (at least 18 years old), and you are of sound mind (not incapacitated) and are not acting under fraud, duress or undue influence, then you could appoint an attorney-in-fact to watch over your finances and appoint a health care representative to decide matters concerning your health when you are unable. However, there are key differences between a power of attorney and guardianship:
- Guardianships might be voluntary or involuntary, while a power of attorney is voluntary
- Guardianships cannot be terminated unless by court order, while a power of attorney can be revoked quite easily
- Guardianships pertain to someone who is incompetent either due to their health or their age, while a power of attorney is created by someone who is competent
- Guardianships necessitate court proceedings, while a power of attorney can be created without court involvement
- A guardian has more formal accountability requirements than an attorney-in-fact or health care representative
Indiana Elder Law Lawyers
Guardianship is a serious legal matter that could affect you or a loved one’s most sacred rights. Because of this, you should consult with an experienced attorney who is able to help you determine how to go about guardianship. For more than two decades, the attorneys at Hawkins Elder Law have helped countless clients with guardianships, powers of attorney, and other estate planning services that provide for effective management and distribution of clients’ assets at incapacity or death. Founders Jennifer J. Hawkins and Jeff R. Hawkins are Board Certified Indiana Trust and Estate Lawyers, certified by the Trust and Estate Specialty Board. Reach out to Hawkins Elder Law today by calling (812) 268-8777 or by contacting us online.
About the Authors
Jeff R. Hawkins and Jennifer J. Hawkins co-author this blog with Thomas E. Hynes, a lawyer admitted to practice in Pennsylvania, New Jersey and Florida who has a background in estate planning and elder law. Jeff and Jennifer are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and the Indiana Chapter of the National Academy of Elder Law Attorneys (NAELA). Jeff is also a member of the Illinois NAELA Chapter.
Jeff is a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation. He is also a member of the Illinois State Bar Association. He served as the 2014-15 President of the Indiana State Bar Association, and he is a registered civil mediator.
Find more information about these and other topics on YouTube and at www.HawkinsElderLaw.com. Facebook users can like @HawkinsElderLaw on Facebook. Twitter users can follow @HawkinsElderLaw. The LinkedIn crowd can follow us at https://www.linkedin.com/company/hawkinselderlaw. You can also call us at (812) 268-8777.
© Copyright 2021 Hawkins Elder Law. All rights reserved.
[See our Disclaimers page about relying on this website’s contents.]