Charles N. Doberneck

Subtitle

Guardianships and Guardianship Administration

Guardianship is a legal relationship in which a competent adult is appointed by a court to make certain decisions and undertake certain actions on behalf of a person whom a court determines is an “incapacitated person” or a minor.  A guardianship can be requested by an interested person filing a petition with a court in the county of the alleged incapacitated person’s or minor’s residence.  In general, notice of such filing and a hearing on such petition must be given to the alleged incapacitated person and minors over the age of 14, and to others as provided in Indiana’s guardianship laws.

A court may appoint a guardian upon finding that a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated person or minor. The court may appoint any qualified person or persons (or entity) whom the court determines to be suitable and willing to serve.  The court will generally give preference to the person or persons that the alleged incapacitated person may have requested in a power of attorney or to such person’s spouse or other close relative.

Upon the guardian’s appointment, Indiana law sets out certain responsibilities and powers that the guardian will have in administering the property or providing care for the person of the incapacitated person or minor.  The duties of a guardian include preserving and investing the protected person’s property, paying for the protected person’s expenses from the guardianship property, filing an inventory of the guardianship property and, at least every two years, filing an accounting of receipts and disbursements in connection with the guardianship, and reporting to the court on the condition of the protected person.

Competent adults can avoid the need for, and expense of,  a court appointed guardian by executing a general durable power of attorney that appoints a spouse, child, or other trusted adult as the adult’s attorney-in-fact .  Although older adults may find a greater potential reason for creating a power of attorney, even young and health young adults may suddenly become incapacitated.  Therefore, everyone should at least consider creating a general durable power of attorney along with the creation and execution of a will or other estate planning instruments.