As you age, you or your loved ones may consider whether a guardianship makes sense in order to preserve your quality of life, or take care of matters you can no longer manage. These situations can be complex, and often emotionally charged — especially if there are disagreements about whether a guardianship is needed.

It’s important to know what your rights are as you age, and understand what resources are available to you should you be placed under guardianship. 

What is Guardianship?

Indiana defines a guardian as a person appointed by a court who is responsible for the care and supervision of a person and/or their property. 

This includes providing care or supervising those who provide it, and making sure their assets and property are properly managed. Guardians are also required to keep track of their actions and regularly inform the court on the status of their guardianship. The person for whom a guardian has been appointed for is legally known as a protected person.

One of the more common forms of guardianship is a child who is a guardian of an elderly parent. For that to happen, the court will determine whether the person who is to be protected is incapacitated, or in need of guardianship. 

More specifically, an incapacitated person is someone who cannot manage their personal property, or provide self-care, or both. Reasons for this include:

• Mental illness
• Mental deficiency
• Physical illness
• Infirmity
• Habitual drunkenness
• Excessive use of drugs
• Incarceration
• Confinement
• Detention
• Duress
• Fraud
• Undue influence of others on the individual
• Developmental disability as defined by Indiana Code 12-7-2-61

Types of Guardianship

When possible, the courts try to limit guardianship to address certain needs without removing more rights from the protected person than necessary. If someone petitions for guardianship over you, know that you should keep the most independence possible based on the unique circumstances of your case.

Unless your court orders specify otherwise, adults under guardianship retain these rights:

• Ability to vote
• Visits with friends and family
• The right to challenge or request termination of the guardianship
• Request the court appoint a different guardian

Beyond that, there are different types of guardianship in the state of Indiana, also known as alternatives to guardianship.

Limited Guardianship

This arrangement allows for a guardian for certain aspects of your life where you may be unable to support yourself. For example, if you become incapacitated and need someone to make financial decisions on your behalf while you recover. This is the least restrictive form of guardianship in Indiana and is the preferred method of the courts.

Supported Decision Making

This is an alternative to guardianship where you may choose to have someone appointed to help make decisions, whether it’s medical, financial, educational, or something else. This arrangement is more commonly used for adults with disabilities, and the goal is to support self-determination while offering an alternative to guardianship.

Health Care Representative

Rather than appointing a guardian, you may appoint someone specifically for health care decisions if there are concerns that you may be unable to make them for yourself. You can withdraw this appointment at any time, without court approval.

Temporary Guardianship

A court can order a temporary guardianship without a hearing — unlike a permanent guardianship. However, as the name suggests, it is only temporary, with a maximum duration of 90 days. You can request one extension of up to 90 days. 

Understanding Guardianship vs. Power of Attorney

The main difference between guardianship and a power of attorney is who chooses the person who will manage your affairs. A power of attorney is an estate planning tool that allows you to designate the person you want to act in your stead. Conversely, in a guardianship, the courts have the final say on who may act on your behalf.

You can also think of a power of attorney as a proactive approach to estate planning, as you can delineate responsibilities over your finances, property, and health decisions long before issues arise. On the other hand, a guardianship proceeding generally doesn’t happen until you’re already facing a situation that may leave you incapacitated. 

Should you have a power of attorney in place and subsequently be placed under guardianship, your guardian must abide by the power of attorney. A court may revoke your power of attorney at your guardian’s request, but not without a hearing. The court must also notify your attorney in fact (the person designated by your power of attorney) that a hearing is to take place.

How to Fight a Guardianship Case

While the courts will endeavor to act in the best interest of the protected person, there are situations where you may object to being placed under guardianship. Whether you disagree with the person being appointed or the terms of the guardianship, it’s important to voice your concerns early in the process.

A court must have a hearing prior to guardianship taking effect, and notify all interested parties the date and time of the hearing. If you object to the guardianship, you must file a petition with the court. You will then be allowed to provide evidence and testimony at the hearing for the court to consider.

How to Remove Someone from Guardianship

Much like appointing a guardian, you must petition the court to change or terminate your guardianship. This includes removing or changing your court-appointed guardian.

Once a guardianship has been established, changing it is much harder. Proving to the court that a guardianship is no longer needed requires strong evidence that the protected person’s condition has changed considerably, or that there is proof a guardian is unsuitable.

Whether you’re fighting to remove a guardian for yourself or a close family member, it’s important to consult with an experienced elder law attorney to help navigate the process.

How to Report Guardianship Abuse

Courts make every effort to ensure someone appointed as guardian is trustworthy enough to make important decisions for the protected person. But depending on the terms of your guardianship, a guardian may have the ability to make irreversible financial or medical decisions on your behalf. Or worse, they may subject you to exploitation, neglect, or abuse. 

While the majority of elder abuse under guardianship is financial in nature, there is also a rise in cases of physical, sexual, and emotional abuse in elderly communities. If you are the victim of abuse, there are resources that can help. The first step is to ensure your personal safety by reaching out to friends and family you can trust, or to local support agencies. Adult protective services offers the Eldercare Locator, a database of services in your area that can assist.

Our Elder Law Attorneys Can Help

If you or your family members are facing a guardianship situation, having a skilled elder law attorney on your side can empower you to navigate legal complexities, safeguard your rights, and ensure your well-being. 

At BB&C, we believe in compassion and confidence. We take pride in talking to you and helping you understand your options. Contact us to schedule an initial consultation and discuss your options. As your advocate, we will fight tirelessly to ensure your voice is heard and your rights are protected.

Disclaimer: The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.