Guardianship Basics
Sometimes the need arises for a guardianship to be filed for the protection of an incapacitated adult or a minor child. A guardianship is a legal relationship granted by the court that provides the guardian with the ability to act on behalf of the protected person. A guardianship can be granted over the “person,” which is the ability to make decisions about the person’s day-to-day living and their care. A guardianship can also be granted over the “estate,” which is the ability to manage the person’s financial affairs.
The need may arise for a guardianship of a minor child if the child’s parents are unable to care for the child, either permanently or on a temporary basis. A guardianship will allow the child’s care-taker to make all necessary decisions to care for the child, enroll them in school, and obtain insurance and medical care for the child. Sometimes, a parent will need to file a guardianship for the estate of their minor child if their child becomes the owner of a sum of money, such as a settlement for an injury or the payout of a life insurance policy. A guardianship over a minor child will terminate when the child turns eighteen, or upon a Court Order if the guardianship is no longer necessary.
An adult must be found to be “incapacitated” in order for a guardianship to be granted over the adult’s person or estate. Indiana code defines incapacitated as:
an individual who cannot be located upon reasonable inquiry;
is unable to manage in whole or in part the individual’s property, to provide self-care, or both; or
has a developmental disability.
An adult may be incapacitated because of insanity, mental illness, mental deficiency, physical illness, infirmity, substance abuse, incarceration, duress, fraud, or undue influence of others on the individual. The person filing for guardianship has the burden of proving the alleged protected person is incapacitated in such a manner that a guardianship is necessary.
More than one person may be guardian over a protected person; these individuals are referred to as co-guardians. Co-Guardians must work together for the benefit of the protected person. Sometimes, more than one person will believe they should be the guardian of a person, and the Court will need to determine who is the best person to act as a guardian for the person. Guardians are normally a friend or family member of the incapacitated person, but many individuals have a professional guardian to help manage their financial affairs.
An individual seeking guardianship of another may file for an emergency guardianship, a temporary guardianship, or a permanent guardianship. Absent a true emergency, the Court will hold a hearing over the Petition for Guardianship before granting a temporary or permanent guardianship. The Court will likely appoint a Guardian ad Litem to investigate the best interests of the protected person to help the Court determine whether a guardianship is needed for the protected person. A guardian may be required to post a bond, and a guardian is obligated to file an accounting with the court every two (2) years so the Court remains aware of the finances and well-being of the protected person.
If you have questions about whether a guardianship may be appropriate for a loved one, the attorneys at Slotegraaf Niehoff, P.C. are experienced in helping individuals navigate the guardianship process.