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Guardianship is an Increasing Need

  • By: Thomas Scifres
  • Published: January 7, 2020
Guardianship is an Increasing Need

These days we are seeing an increase in the need for guardianships. There are several factors that possibly contribute to this. One factor is that through medical advancements people generally are living longer. In many cases, extended life does not equate to extended quality of life, or extended capabilities. It is only an extended life. Many who are living longer don’t have the physical and mental means to continue life as they had in the past, so they need help. A related factor is the aging of the “baby boom” generation. Most are aware that following the end of World War II, there was an unprecedented surge in new births in America when young men returned from the war. People born in those years are referred to as the “baby boomers.” Those boomers are now joining the ranks of people living longer-and there are a lot of them. Finally, our society has seen an increase in the number of children being raised by their grandparents. According to the U.S. Census Bureau, in 2010, approximately 5.4 million children in the United States lived in a household headed by a grandparent. This represents about 7 percent (or one in 14) children, and is a marked increase from the 4.7 million such arrangements in 2005.

Indiana’s Probate Code

For those who cannot take care of either themselves or their finances, guardianship provides a means through which someone else can be appointed to take care of those things for them. “Guardianship” refers to a legally conferred relationship between a competent adult (the guardian) and a protected person, as set forth in Indiana’s probate code. There generally are two classes of protected persons: minors and incapacitated adults. Generally, guardianship of a minor is unnecessary if there are capable parents available to care for the child. By law, parents are charged with the custody and care of their children. Where parents are not capable for whatever reason, third parties may need to step in and take control for the benefit of the child. For incapacitate adults, there is generally no one with presumed legal authority to take care of them or their finances. The apparent increase stems from the fact that more grandparents are raising their grandkids, while people are living longer and needing longer term care as their minds and bodies give way.

The court usually will appoint someone to act as guardian for all purposes. However, in certain cases, a court might limit the appointment to either guardianship of the person (overseeing physical care alone) or guardianship of the estate (overseeing the person’s income and assets). Upon appointment, the guardian is charged by law generally with a “fiduciary duty,” that is, a duty to act in the best interests of the protected person. A fiduciary duty is the highest duty under the law, and if you become someone’s guardian, that duty requires you to act solely in the best interests of the protected person-even if those required actions conflict with your own interests. In addition to the general fiduciary duty, the guardianship code sets forth several specific powers and duties. If the guardianship is over the “estate,” this would include, among other things:

  • to prepare an inventory of the person’s assets;
  • opening a guardianship account and keeping those funds separate from the guardian’s own funds;
  • investing funds to make them productive;
  • insuring assets to protect against loss;
  • to continue the business of the protected person, if there is a business;
  • to receive and administer funds for the protected person’s benefit

For guardianship over the “person,” there is a fiduciary duty to act in the best interests of the person’s physical well-being. That will mean, among other things:

  • Either personally care for, or make arrangements to provide care for the health and welfare of the individual;
  • To encourage and help develop self-reliance and independence;
  • Delegate certain responsibilities to the protected person within his or her means;
  • If someone else has care or custody of the person, to pay a reasonable amount to be expended for support;
  • Where appropriate, to request the court’s authority to petition for dissolution of marriage, legal separation, or annulment of marriage;
  • If the protected person receives social security benefits, the guardian will have to make arrangements to become the “representative payee” with the Social Security Administration, which has its own set of rules that must be kept pursuant to Federal law.

Indiana’s Guardianship Code

Indiana’s guardianship code also provides detailed steps in the establishment of a guardianship, giving certain people notice of the proposed guardianship and the opportunity to be heard by the judge. Once a guardianship is established, the code sets forth other ongoing duties in addition to the general duties. One requirement is that the guardian proved the court with a periodic account of the guardian’s activities. This “accounting” is a summary of all financial transactions and asset holdings in a format set out under the law. This filing is required no less than every two years or even more frequently if required by the court. It is a continuing duty the entire time the guardianship is in place. We recommend that the preparation of an accounting be done in conjunction with legal counsel to abide by the law’s requirements for an accounting, and also to monitor expenditures to ensure compliance with the guardian’s legal and fiduciary duties.

In addition to the need for legal services in the establishment and administration of an uncontested guardianship, there may also be controversies leading to litigation. For instance, in some cases there may be a dispute over who should be granted control over a protect person and his or her assets. In my experience, such disputes most often occur between an alleged incapacitated person’s adult children or siblings, but they can arise among anyone who loves and cares for someone in need. In such cases, there are statutes that provide guidance on who should be given preference by the Court; however, several factors come into play that impact the court’s decision. In other cases, there may be allegations of misappropriation of the guardianship assets, or some other violation of the guardian’s fiduciary duties. The continuing involvement of legal counsel throughout the guardianship can help prevent such situations from arising through the continued monitoring of the guardian’s activities-primarily through frequent oversight and updating of the accounting.

Our firm regularly practices in the guardianship area. Whether you have an uncontested guardianship you think needs to be established, or there is a contentious family situation requiring a litigator, our firm has the knowledge, experience, and compassion to help you make the right decisions and guide you toward a reasonable resolution of conflicts. We recognize that no two family situations are alike. Therefore, our firm philosophy dictates that we tailor a unique approach for each client to give each situation the approach that best fits. Feel free to call for a consultation to explore the needs of your particular situation.

Thomas E. Scifres

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