As individuals with disabilities get near the age of 18, many families think they must get guardianship, partly because it’s the only thing many have ever heard of and because they don’t realize that other alternatives can be suitable. However, guardianship is more significant than most people realize.
There are times when guardianship is necessary, but there are also times when less restrictive alternatives may be appropriate. Most people think that guardianship is simply a way to stay involved, get information, and make decisions, but guardianship is a lot more involved than that.
What Is Guardianship?
Guardianship is the process of having a person declared a protected person by the court. When a person with a disability turns 18, they become an emancipated person just like everyone else—unless a court declares them a protected person and appoints a guardian. In Indiana, there’s also limited guardianship.
To seek guardianship of a person, you must file a Petition for Guardianship with the appropriate court and obtain a judge’s appointment. Because laws on guardianship in Indiana and petitions are intertwined with estate planning, you may want to consult an estate planning or family law attorney.
If money is a major concern, you can always become the guardian of the estate. If healthcare is your main concern, you can become the guardian of the person who only covers medical issues. But most Indiana guardianship is full or plenary.
When a person is fully guarded, they lose all legal rights to make decisions except the right to vote, which is unalienable. We tend to focus on the guardian, but it isn’t. It’s all about the protected individual.
It’s vital to understand that only a court can remove a guardian. Guardianship doesn’t end because a guardian says so or doesn’t want to do it anymore. It also doesn’t end when the guardian dies. You can name a co-guardian now or later, but you must go through the court.
Alternatives to Guardianship
Often, without the necessity for guardianship, there are suitable and, in certain situations, legally recognized services a person may employ to meet an individual’s limitations. These include, but are not limited to the following:
We all use supported decision-making in our everyday lives. Experts can help you gather information and make decisions. Supporting decision-making can be used as a concept, as an alternative to guardianship, or in conjunction with cards.
It’s a great way to keep self-determination alive. A higher quality of life and longer life expectancy are associated with self-determination and personal control. To ensure that individuals retain some control over their lives even when placed under guardianship, choose supportive decision-making in tandem with guardianship.
Power of Attorney
Powers of attorney are common among seniors and veterans. As a result, power of attorney is more widely known than adult guardianship. A power of attorney allows you to act on behalf of a loved one. It will enable individuals to continue making decisions for themselves and anyone they appoint as power of attorney.
It can also be as broad or as detailed as you want. Perhaps your loved one has appointed you as their agent with their phone company. You can call their mobile phone provider, but not their bank, because you don’t have access to their account.
They may also appoint you as their agent for all financial, medical, and government benefit transactions. You are also not required to appear in court. Notarize a power of attorney covering the desired areas.
You may be appointed as a healthcare representative by a loved one while they are still capable. When appropriate, a healthcare representative makes healthcare decisions for a person.
An informed healthcare representative can make appropriate decisions. Medical practitioners often exchange information with healthcare representatives in a manner like guardianship.
Finding out how much help someone needs can be complex. Any questions about guardianship in Indiana should be directed to a qualified attorney.
What is the role of a guardian?
Guardianship is the responsibility of a person or organization appointed by a court to take care of and supervise an incapable individual’s physical or financial assets.
The terms “incapable,” “incapacitated,” “ward” and “protected persons” are often used to refer to those who aren’t unable to care for themselves or manage their belongings due to disabilities or illnesses.
What are the guardian’s responsibilities, and how are they carried out?
A guardian appointed by the court is responsible for providing or monitoring the individual’s care and ensuring that their property (including money) is appropriately stored and managed (unless the court orders otherwise). In many instances, guardians are also expected to notify the court of the progress of these cases frequently.
Which choices are guardians permitted to make?
The power of a guardian may include but is not limited to the ability to form contracts, consent to medical treatment, the right to make housing and financial decisions, and whether a protected individual should marry—unless otherwise specified by the court.
Is it feasible to restrict the scope of guardianship?
Yes. Indiana courts are compelled to restrict guardianship authority if it is in the protected person’s best interests to promote self-improvement, self-reliance, and independence. Guardianship may have time, power, and decision-making authority limitations. A request for limited guardianship may be made by either the person requesting guardianship or the protected person.
What are the protected individual’s legal rights while under guardianship?
Guarded adults in Indiana have the following rights unless the court directs otherwise:
- Connect with immediate relatives and friends
- Request that the court appoints a new guardian
- Contest or abrogate guardianship
How is guardianship canceled or modified?
Adult guardianship often lasts the rest of the person’s life. Protected persons must be removed from guardianship when they die, or the court deems them competent. A court can terminate guardianship if it is no longer needed for any reason.
A petition must be filed with the court to terminate or modify a guardianship. The court will usually set a hearing for the parties to present their evidence and witnesses. Finally, the court will decide. Even if a guardian wishes to retire, the court must agree.
What are alternatives to guardianship?
There is a broad variety of help available as an alternative to full or plenary guardianship:
- Informal supports
- Protective orders
- Supported Decision-Making Agreements
- Living wills and advance directives
- Educational Surrogate
- Authorizations to share information
- Healthcare Representative
- Power of Attorney (POA)
- Team-based or shared decision-making