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Do I Need A Guardianship For My Loved One?

The sunset years of elderly people may find them in need of a guardianship.

A guardian, according to Barron's Law Dictionary, is "one who legally has care and management of the person or estate, or both, of an incompetent who cannot act for himself." As guardian of the person, the guardian is charged with the responsibility to care for the health of an individual. As guardian of the estate, the guardian must exercise sound judgment in taking care of the finances and other property owned by the individual. These responsibilities are a part of the fiduciary nature of the guardianship.

Under Indiana Code 29-3-5-3, the Court will grant a guardianship if it finds that (1) the individual is incapacitated; and (2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated person.

If an individual has not provided for his care through a Durable Power of Attorney, a guardianship might be the only way for another person to be legally authorized to act on the other's behalf. A Durable Power of Attorney cannot be properly executed when the individual does not have the mental capacity to understand the decision. Consequently, only the Court may decide who will take care of the elderly loved one's person and estate. In these instances, relatives may need to seek a guardianship over their loved one.

The good news is many times the guardianship proceeding will not be disputed. A doctor's statement as to mental incapacity may be filed with the Petition for Appointment of Guardian. When this occurs, there is strong evidence of the incapacity of the individual and of the necessity of guardianship appointment, and thus the Court will likely grant the guardianship.