Guardianship & Alternatives

General Information
Written By Grace Kestler
Guardianship is a broad legal tool that helps individuals live as adults. Several other legal tools are also available for this purpose.

Guardianship is a broad legal tool that helps individuals live as adults. Several other legal tools are also available for this purpose.

What is guardianship?

Guardianship is where an individual becomes legally classified as a Protected Person. The protected person status formally indicates that the protected person is under the care of a guardian. The guardian of a protected person has broader obligations when compared to other, similar agreements.

In certain ways guardianship is similar to marriage, there are legal steps required to make it binding and requirements to follow once the agreement is established. Guardianship is a long-term commitment which may or may not be right for everyone. In marriage, divorce proceedings or the death of a spouse can end the marriage contract. Guardianship, however, doesn’t end when a guardian dies. The protected person is still considered legally in need of a guardian, so a new guardian will be assigned. This new guardian may or may not be known to the protected person.

Requirements of the guardian

In many cases the protected person’s guardian will be a parent. The parent has cared for the child and knows them well, so it’s logical that they would pursue guardianship once the child nears adulthood. Unlike the parent-child relationship, the guardian-protected person relationship has additional formal requirements. The Arc of Indiana includes the following list of steps guardians are required to adhere to (if the guardianship agreement isn’t limited):

• Do everything for the best interests of the protected person
• File an inventory of assets if guardian of the estate
• Keep all funds of the protected person separate from the Guardian’s personal funds
• Obtain permission from the court before selling anything of value belonging to the protected person
• Obtain approval from the court if making an unusual expenditure for the protected person
• Obtain approval before moving the protected person out of town or out of state
• Every two years, file an accounting of income, assets and expenses with the court and others

Guardianship covers a few different types, some with limited authority. The following section explores the main types of guardianship to consider.

Types of guardianship

The broadest form of guardianship is called Plenary Guardianship meaning the protected person has no legal right to make decisions for themselves. While this arrangement significantly reduces the rights of the protected person, it does not remove the right of the protected person to vote. In Indiana, this is the most common type of guardianship and is sometimes called Guardianship of the Person and the Estate. Since there are a wide variety of abilities and skills among people who may benefit from guardianship, limited forms of guardianship are also available.

The guardian could hold Guardianship of the Person. In this form of guardianship, the guardian might have decision-making rights over non-financial decisions like medical treatments, living arrangements, and personal contacts. Guardianship of the Person can be further limited, only allowing decisions for medical treatments, for example.

The guardian could also just be designated a Guardianship of the Estate. This limited form of guardianship gives the guardian the right and obligation to make decisions related to the finances of the protected person. This form can also be limited to certain areas. For example, a guardian may be limited to decision making in regards to real estate or personal property, while the protected person would retain rights related to day-to-day personal finances. Depending on the nature of the guardianship agreement, the guardian may need to inform local government agencies that the guardian has decision-making rights in relation to the protected person’s property.

The last form of guardianship is Temporary Guardianship. Temporary guardianship is limited to a period of 90 days, but can be extended by court order if necessary. This form is primarily used in emergency situations. For example, the court may appoint an emergency guardian when the current guardian dies or is incapacitated through an accident of health emergency, like a stroke or coma.

Is guardianship the right choice?

Pursuing guardianship is a major decision and, like buying a house, requires careful consideration. Unlike a piece of property, though, the focus of guardianship is the well-being and happiness of the protected person.

A person with full independence has the benefit of choice and those benefits come with responsibilities. The independent person can choose to avoid paying taxes, but they’ll face the consequences eventually. By reducing a person’s independence through a guardianship agreement, the individual can avoid serious consequences they may be unable to anticipate or handle themselves.

On the other hand, a person who is capable of handling those responsibilities (despite potential mistakes along the way), benefits greatly from the opportunity for self-development that comes from being as self-sufficient as possible. A child cannot learn to walk without falling down, but it’s unwise to let that child learn at the top of a staircase.

Why would someone choose not to pursue guardianship?

It’s common for families to believe that guardianship represents the only long-term planning option for individuals with intellectual and developmental disabilities. Thankfully, this isn’t the case. Understanding why you might choose not to pursue guardianship can make it clearer which long-term planning path makes the most sense to follow.

The simplest reason someone might decide against guardianship is that it just isn’t needed. A person with an intellectual or developmental disability may be perfectly capable of making decisions independently of a guardian. So, the first question to ask when planning for the long-term planning: are the formalities of guardianship absolutely necessary in one or more areas?

As will be explained in the Alternatives to guardianship section that follows, there may be alternatives that serve the person and the potential guardian better than full or limited guardianship. If the person, who would best serve as guardian, lives far away from the potential protected person, an alternative might allow that trusted individual to support without needing to relocate. Finally, alternatives can be less expensive in terms of legal fees and require less effort to create, maintain, and dissolve.

Alternatives to guardianship

The discussion of guardianship is intimately linked to the idea of self-determination. Self-determination is one’s ability to determine his or her future; they’re determining for themselves what will happen. When a person’s guardian makes a decision, whether necessary or not, the protected person is unable to decide for themselves how life will look in that particular area.

When a person has the ability to set goals and work toward their achievement, they experience a higher quality of life. Research also suggests that these individuals also live longer. Alternatives to guardianship may provide a greater opportunity for self-determination while still appropriately supporting the person. Exploring alternatives during the early to mid-teenage years can help make the ultimate decision about guardianship more obvious. It’s possible that guardianship is too prohibitive for both the protected person and his or her potential guardian.

Power of Attorney

The first alternative to guardianship is a tool known as Power of Attorney. A power of attorney allows a person (the agent or attorney-in-fact) to act on behalf of another person (called the principal). It is less restrictive than guardianship since it doesn’t limit the principal’s decision-making ability.

The Arc of Indiana describes Power of Attorney as:

“Power of Attorney can be made by someone who is competent as an alternative to guardianship. It is a written notarized directive from one person to another delegating authority to another person to make certain decisions. Power of Attorney can be as general or specific as the individual chooses and can cover a wide range of topics including, but not limited to, medical, financial, government benefit, and educational matters.”

Power of attorney limited to certain times

There is a category of power of attorney that limits power based on the principal’s ability to make decisions. A general power of attorney has provisions that end when the principal becomes incapacitated. The opposite, a power of attorney appointment that goes into effect when a person becomes incapacitated, is called a springing power of attorney. A springing power of attorney “springs” into action when the principal becomes incapacitated.

Decision-making authority that’s retained when a principal becomes incapacitated, requires the power of attorney agreement to include additional language. These provisions make the agreement “durable.” A durable power of attorney remains in effect until the principal dies.

Power of attorney limited in scope

A power of attorney, like limited guardianship, can specify areas where the powers apply. For example, a power of attorney could only allow taking action in financial matters, medical matters, and/or matters related to government benefits. When the powers are limited to finances, for example, the document may be called a financial power of attorney. When limited to medical decisions, the power of attorney may be referred to as a medical power of attorney.

Unlike a guardianship agreement, however, power of attorney agreements do not require a court appearance, the agreement simply needs to be notarized. Since it’s easier to create a power of attorney, when compared to guardianship, it’s also simpler to reissue a power of attorney when a change needs to be made, for whatever reason.

Health Care Representative

A health care representative is a person chosen to manage health care decisions on behalf of someone else. Unlike a power of attorney agreement, a health care representative agreement can be created without requiring the services of a notary. The health care representative form simply needs to signed in the presence of another adult witness. The state of Indiana has a form that can be used to designate a health care representative. Unlike other government documents, though, you can also work with an attorney and create your own form as long as it is prepared appropriately, usually with the help of an attorney.

When a person creates a power of attorney agreement and assigns the attorney-in-fact medical decision-making powers, the attorney-in-fact acts as the health care representative. Since a power of attorney agreement requires a little more effort to create, you may choose to name a health care representative outside the power of attorney structure. The decision-making authority of a medical power of attorney and a health care representative can be the same.

There isn’t an equivalent to a health care representative for financial decision-making, so if you’re planning to create a financial power of attorney, you may wish to create a medical power of attorney at the same time. The financial power of attorney and medical power of attorney can be different people. If the principal (the person whose decisions are being made by another person) is able to handle financial decisions, then appointing a health care representative may meet his or her needs.

The Arc of Indiana describes Health Care Representation as:

“Health Care Representative can be an alternative to guardianship. An individual may appoint a health care representative if there are concerns that at some time the individual may lack the ability to make decisions regarding his or her health. The health care representative can then make these decisions on the individual’s behalf. A person must be competent to enter into a health care representation form, and it can be withdrawn by the individual at any time if he or she is competent to do so.”

Supported Decision-Making

Another alternative to guardianship is supported decision-making. Informally, supported decision-making is something we all use. We seek the advice of experts, those individuals who know more about a subject or area than we do. Asking a family friend to advise you on a home repair would be a simple example of supported decision-making.

You, ultimately, have to make the final decision about the action you’re going to take, but you wisely consider the advice from another person who may be better informed. The person whose advice is sought is called a supporter. It’s common to have different supporters for different decisions. We also may feel confident to make decisions in other areas without seeking outside support.

The Arc of Indiana describes Supported Decision Making as:

'“Supported Decision Making is an alternative to guardianship where a person selects supporters to assist the person in the decision-making process. It is a process of supporting or accommodating an adult in the decision-making process to promote greater self-determination. Supported Decision Making agreements can be as general or specific as the individual chooses and can cover a wide range of topics including, but not limited to, medical, financial, government benefit, and educational matters.”

You can learn more about supported decision-making and the relevant laws from www.in.gov/idr/sdm/

A less restrictive alternative

This dynamic nature makes supported decision-making a less restrictive alternative to guardianship. This phrase “less restrictive alternative” has legal consequences when considering guardianship. In Indiana, it’s necessary to consider less restrictive alternatives to guardianship before pursuing guardianship. Supported decision-making is formally recognized and accepted as one of these less restrictive alternatives to be considered. Further, a decision made with supported decision-making is equivalent to a decision made by an adult without restrictions.

Due to its flexibility, supported decision-making can be used as a support structure a person can use in specific situations. Perhaps the individual reaches out to his or her supporter when they need to make a financial decision, but wouldn’t ask that same person about personal medical decisions.

Supported decision-making, while potentially effective as an alternative to guardianship, can also be used in conjunction with guardianship. When individuals are best served through the guardianship structure, the use of supported decision-making can improve self-determination and happiness. Whenever prudent, it’s better to allow individuals expansive decision-making rights rather than restricting most decisions.

Supported decision-making can start early in life

An illustrative example of supported decision-making occurs while raising children. As it relates to finances, a parent may help a child make decisions about how to use money received on a birthday. By advising a child to save a certain amount and allow them to spend the rest in a restricted way (e.g., at the toy store), the parent is practicing supported decision-making.

Starting supported decision-making early in life, when stakes are low, helps the child understand and enjoy the power of free decision-making while respecting the experience and knowledge of the supporter. A child who realizes they’ve made a mistake can take responsibility for that decision and learn from it.

As the child grows into adolescence and adulthood, more serious decisions must be made. With practice seeking help from supporters, the child is more likely to consult more perspectives and reach a better conclusion. For children with intellectual and developmental disabilities, this may give them the tools to avoid guardianship or, alternatively, may make the choice for guardianship an easier decision.

The supported decision-making agreement

To formalize a supported decision-making relationship, a supported decision-making agreement can be created. This agreement highlights the areas where a person has identified a supporter who will help them in the decision-making process and, importantly, areas where no support is required. Assessments, from the perspective of the supporter and the person seeking support, can be used to determine which areas should be included or excluded in a supported decision-making agreement.

Starting the process of guardianship

If it’s determined that guardianship creates the best quality of life for the potential protected person, then the process to formalize the guardianship should proceed. The first step is to identify a lawyer or an attorney to assist with the process.

The attorney will help create a petition for guardianship which will be filed in a court with probate jurisdiction. While seeking an attorney, you’ll want to find one that’s familiar with the process, such as a probate, estate, or elder law attorney. These attorneys specialize in this type of planning and will be able to guide you through the process efficiently.

The process is not overly complicated, but does require specific actions at certain points in time. For example, prior to filing the petition for guardianship, it’s necessary to inform the potential protected person, his or her family members, and other related individuals about the potential guardianship relationship that’s in process.

The end of guardianship

Guardianship is legally binding and typically requires a judicial decision for the agreement to end outside of special situations, like the protected person moving out of state. Due to the legal nature of the guardianship agreement, it isn’t a relationship that’s ended easily. In fact, when a guardianship agreement is established, the protected person will require a guardian even if the original guardian dies.

Choosing a standby guardian

When this happens, the court will appoint a new guardian. The new guardian may or may not be previously known to the protected person. To avoid this potential problem, a standby guardian can be established. The standby guardian will become the protected person’s guardian if the original guardian is incapacitated or dies. Taking this additional step can reduce the likelihood that a protected person experiences different levels of care when transitioning between guardians.

Additional Resources

Grace Kestler
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