When determining the need for guardianship for an adult with a disability, the court considers two key factors:
Indiana Law bases the guardianship decision on the concept of “Incapacity.” Indiana Code §29-3-1-7.5 defines an “incapacitated Person” as someone who: a) cannot be located; b) is unable to manage their property; or c) is unable to provide self-care, because of insanity, mental illness, mental deficiency, physical illness, infirmity, addiction, incarceration, duress, undue influence of others, and related reasons. The court evaluates the incapacity and how much it affects the adult’s ability to care for themselves. This evaluation should include both the person’s physical health and safety as well as their financial health and safety.
If the incapacity significantly interferes with the adult’s ability to care for themselves, the court is more likely appoint a guardian. However, the guardianship should be limited as much as possible to preserve the individual’s freedoms while ensuring their well-being. This ensures that the guardianship addresses only the necessary areas where the adult needs support.
Unlike a Power of Attorney, which is a voluntary, knowing grant of power by an individual to another, which can be revoked, guardianship is an invasive stripping of individual power by the court system and granting the stripped power to a third party. It is a very serious matter and requires careful consideration of the competing interests by the court. The process for obtaining guardianship for an adult with disabilities in Indiana is designed to provide safeguards to ensure that the rights of the individual are carefully balanced against the potential harm that could occur of no action is taken. It seeks to ensure that the court has sufficient information to make a decision that best protects the interests of the adult with disabilities, balancing the interest in maintaining their safety and security against their interest in maintaining individual autonomy. The process includes:
The individual seeking guardianship must file a petition with the court, outlining the need for guardianship. This will include, among other things: (1) the nature of the incapacity; (2) the extent of limitation or danger posed by the incapacity; and (3) the identify of the person seeking appointment as guardian.
Supporting evidence, such as a doctor’s report or medical records, might be submitted to demonstrate the adult’s incapacity and need for a guardian. The submission of medical documentation (or even a completed questionnaire by a physician) has become somewhat of a standard practice in Indiana, but it is not required by statute.
Another requirement is that notice be given to all interested parties. For an alleged incapacitated adult, this includes, at a minimum: (1) the alleged incapacitate person; (2) their spouse; (3) their adult children; (4) if no adult children, their parents; (5) any person(s) to whom they have granted power of attorney; (6) and if they are subject to guardianship already – or in the care of another person or institution – notice must be given to such people or institution. Additionally, Indiana’s statute provides for the judge to require notice to anyone else the judge thinks should be given notice.
A hearing will be held where the judge will hear from the interested parties about why a guardianship should – or should not – be imposed, as well as the scope and potential limitations on the guardianship. The judge may interview the alleged incapacitated adult and evaluate the nature and extent of the disability. The judge will evaluate all of the evidence and assess whether guardianship is necessary and to what degree it should be imposed.
Submit an Inventory and Provide Ongoing Reports
If the court grants guardianship, the Indiana Guardianship Registry will be notified, and they will add the guardianship to the list of all guardianships for ongoing monitoring. Within 60 days of the grant of guardianship, the guardian will be required to file an inventory identifying all of the incapacitated adults assets and their values. Thereafter, no less than every two years, the guardian will be required to report to the court on the status of the guardianship – including the well-being of the incapacitated adult, as well as an accounting of the assets and all income and expenditures. For this reason, it is very important that the guardian stay in the attorney-client relationship for guidance and compliance with these legal requirements as long as the guardianship is in effect.
A guardian for an adult with disabilities is responsible for ensuring the individual’s healthcare and medical needs are met. While they may choose to do so, as is often the case with adult children caring for a parent in their home, they are not required to provide that care directly. Instead, the guardian’s role involves:
The guardian ensures the person receives necessary medical treatment and care, which may involve coordinating with healthcare providers, making medical decisions, and overseeing their well-being.
If the guardian is unable to provide direct care, they can hire professionals, such as caregivers, medical staff, or rehabilitation services, using the guardianship funds to address the individual’s needs. This applies to both personal care and financial oversight.
The guardian may also arrange for the individual to be placed in an institution or care facility if necessary, ensuring they receive appropriate ongoing care and supervision.
Guardianship in Indiana is intended to be as minimally “invasive” to the incapacitated adult as possibly. The law encourages independence, stimulation, and growth as much as possible. As a result, the living arrangements of an incapacitated adult under guardianship depend largely on the nature and extent of the incapacity. There are several possible scenarios, including:
If the individual is physically capable of caring for themselves but has an intellectual impairment affecting financial decisions, they may still live independently. In such cases, guardianship may be limited to managing their estate or finances while the person continues to reside in their own home. Daily check-ins or close proximity to the guardian are common in these situations to ensure their well-being.
In some cases, the individual may live with the guardian, especially when more frequent support or supervision is needed. This is often seen when the guardian is a family member living nearby.
For more severe disabilities, where the person cannot care for themselves, the guardian may decide to hire home-care by qualified professionals, or even to place them in a group home, assisted living, or a nursing home. These decisions are based on the level of care needed, the individual’s condition, and the potential for improvement or further decline.
In Indiana, an adult with disabilities retains only the rights not specifically removed by the court. When someone is placed under guardianship, the court carefully limits the guardian’s authority to encourage as much independence and personal liberty as possible for the individual. Courts are required by law to tailor guardianship orders to only cover the necessary areas where the person needs support.
Additionally, regular reports must be filed with the court, covering not only financial matters but also the physical and mental condition of the individual. Although reporting every six months is standard, courts may require more frequent updates or appoint a guardian ad litem—an independent third party—to assess whether the guardianship should continue or if modifications are needed. Though the law mandates a guardian ad litem in every case, this requirement is often not followed due to financial constraints.
The court ultimately retains oversight and may adjust the guardianship as needed to balance the individual’s needs with their right to maintain personal freedoms.
Guardianship for an adult with an incapacity can be modified or terminated if circumstances change. Ideally, the guardian, who has a fiduciary duty to act in the best interest of the individual, would voluntarily seek to limit or end the guardianship if the individual’s condition improves or no longer requires such oversight.
If the guardian does not pursue modification or termination, the court can step in. A guardian ad litem may be appointed to assess the ongoing need for guardianship, and the court may increase reporting requirements to closely monitor the individual’s condition. The court also has the authority to review and impose limitations on the guardianship to ensure it remains as narrow as necessary, promoting the individual’s independence and well-being.
These checks and balances ensure that the guardianship isn’t overly restrictive and that the individual’s personal growth and autonomy are prioritized whenever possible.
Handling guardianship cases involves more than just navigating the legal process; it’s about protecting the rights and well-being of a vulnerable individual. From my initial consultation with a potential client, I emphasize the seriousness of what guardianship entails—potentially limiting their autonomy and individual liberty. This is a weighty responsibility, and I make it clear to my clients that this isn’t just a legal proceeding but a matter that impacts a loved one’s life deeply on an ongoing basis.
I’m committed to only representing those whose motives are clear and genuinely in the best interest of the person in need. My commitment extends to ongoing education and cooperation with the guardian to ensure they fulfill their fiduciary duties, especially in financial reporting and safeguarding the assets and well-being of the incapacitated person. This approach is deeply personal to me because I believe in the importance of protecting those who are most vulnerable in our society.
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