I’ve spent a lot of blog space extolling the virtues of using Power of Attorney (“POA”) documents for many different reasons. One of those reasons may be to avoid the necessity of a formal guardianship later in life. It’s true that a good POA document can help avoid a formal guardianship, however, we still often need to pursue formal guardianships for clients in situations where the prospective ward did not have a valid POA document, or in situations where some family conflict has rendered an existing POA relationship untenable.
Because guardianships are sometimes still necessary, I wanted to give a brief overview of the guardianship role.
First, in Indiana there are two distinct guardianship positions: (1) guardian of the person, and (2) guardianship of the estate.
Guardian of the person is charged with the physical care and custody of the ward. The guardian of the person has the authority, and in many instances the duty, to make decisions and take action regarding the ward’s medical care, living situation, and general physical well-being. If the ward is a child, this includes enrolling the child in school, obtaining health care insurance and providing for the child’s basic needs.
Guardian of the estate is charged with gathering and administering the assets of the ward, and managing the assets for the benefit of ward under the supervision of the Court. This role requires the guardian to petition the court for authority to make disbursements of the ward’s assets, and to file formal and comprehensive accountings with the Court at least annually to account for all of the decisions and transactions made regarding the assets of the guardianship estate.
It’s important to understand the authority and responsibilities attached to each distinct guardianship role before deciding to petition the court for appointment. Experienced legal counsel can add great value to the prospective petitioner by helping with the pre-petition analysis phase. For example, in a situation where one is seeking guardianship over a minor child where the minor child has no or minimal assets, one might purposely petition ONLY for guardianship of the person and not guardianship of the estate. This can streamline the reporting required by the Court and thus save the guardian time and attorney fees. Another example of this pre-petition analysis that an experienced attorney can help with is determination of whether the same person should be petitioning for guardianship of both the person and estate, or whether different people should fill each role. In some instances, one prospective guardian may have a greater aptitude for dealing with financial matters, while another may be better at actual caregiving activities. In that example it may be prudent to have the different individuals take on separate roles in the best interest of the ward.
If you have questions about possibly seeking guardianship, or are already acting as guardian and need legal guidance, please feel free to contact us. As with most other legal issues, it is far more prudent to seek legal advice before acting than it is to seek legal advice after the fact when the acts or omissions in question cannot be undone.