Guardianships for Children with Disabilities
The area of guardianship law impacts families with children with disabilities because when a child turns age 18, the decision-making as to the child’s educational services, as determined by the IEP team (or case conference committee), goes to the child, rather than the parent. Obviously in some cases, this would result in harm to the child. Therefore, parents of children with disabilities will have their children sign either powers of attorney to allow the parents to continue the make the educational decisions or the parents will obtain a guardianship in court. The downside of a power of attorney is that it can be revoked fairly easily by the child, whereas revoking a guardianship requires a court decision. The downside of a guardianship is that it costs money and usually involves hiring an attorney to execute the proper documents.
Note: The following is used with permission of the Indiana Bar Foundation.
GUARDIANSHIPS
When a person can no longer manage property or provide self-care, a guardianship may be appropriate. Guardianships can provide important protection to someone who is incapacitated. On the other hand, sometimes guardianships are unnecessarily imposed on persons who are capable of making their own decisions.
Because the appointment of a guardian is more complex and serious than giving someone power of attorney, you should definitely talk to a lawyer if you think that you or someone you know might need a guardian. Planning ahead can often avoid the need for guardianship.
DEFINITIONS
- GUARDIAN –someone appointed by a court to make decisions for an incapacitated person. In Indiana, conservator and guardian mean the same thing.
Almost any capable adult can serve as guardian. A county Division of Family and Children, or a private charity can be a guardian. A non-resident person or corporation can serve as guardian if it is in the best interests of the person under guardianship.
- INCAPACITATED PERSON - description of someone who is incapable of either managing property or providing self care or both. Incapacity may stem from infirmity, insanity, mental illness, alcoholism, excessive use of drugs or other incapacity.
Although these conditions may contribute to incapacity, a person who has on or more of these problems is not necessarily incapable. Old age is never a basis upon which guardianship can be granted. A person does not need a guardian just because he is old or infirm. A guardian should not be appointed for a person unless the individual cannot manage property or provide self-care.
- PROTECTED PERSON – a person for who a guardian has been appointed.
RIGHTS OF THE PROTECTED PERSON
The court should always look to the least restrictive alternative available to protect the interests of the incapacitated person Courts should create “limited guardianships” whenever it is appropriate in order to encourage the self-improvement in order to encourage the self-improvement, self-reliance, and independence of the protected person. In other words, if an individual is capable of making her own health care decisions, but cannot balance her checkbook, the court should create a guardianship limited to management of the checkbook.
Even though a guardianship may help a person who is no longer capable of property management or self care, it may also mean a loss of rights for the protected person. The law is not entirely clear on what personal right the protected person has in an unlimited guardianship. The protected person may lose the right to make a gift, marry, drive a car, make decisions about health care and housing arrangements.
The protected person does not necessarily lose the right to make a will. The protected person can make a will if she is capable of understanding what property she has and knows the “objects of her bounty,” the people who would receive the property when she dies.
“Letter of Guardianship,” a document issued by the court, should explain exactly what powers the guardian has and whether there are any limitations on the guardianship.
As guardianship can be a right-stripping process, the law provides a formal procedure with built in protections that must be followed before a guardian can be appointed.
PROCEDURES FOR ESTABLISHMENT OF GUARDIANSHIP
Any interested person may file a petition for appointment of a guardian of an incapacitated person. The person filing the petition is not necessarily the person who will be appointed guardian.
The individual for who the guardianship is sought has the right to both notice, which includes both a notice of rights and the petition for guardianship itself, and hearing. The notice also must be given to the spouse, adult children, the attorney in fact under a power of attorney for the individual, and any person serving as guardian for or who has the care and custody of the alleged incapacitated person.
If there are no adult children, notice must also go to the parents of the individual. If there are no parents, spouse or adult children, then at least one person most closely related by blood or marriage to the alleged incapacitated person must receive notice. The court may also direct any other person to receive notice.
The notice must be in substantially the same form that the guardianship law provides and must advise the individual that the proceeding may substantially affect the rights of the individual. The notice should also explain the rights of the individual to attend the hearing and be represented by an attorney, or if there is no attorney, a court appointed ad litem (see below).
The hearing provides an opportunity for alleged incapacitated person to present evidence and cross-examine witnesses, or in other words, to show the court why a guardianship should not be established.
RIGHT TO REPRESENTATION
The person for whom the guardianship is sought has the right to hire an attorney. In some cases, a court might be willing to appoint an attorney, although the court is not required to do so. The prospective guardian’s attorney cannot also represent the alleged incapacitated person.
A guardian ad litem is a person appointed by the judge to help a person during a specific case. That assistance is only for that one case. The law requires the court to appoint a guardian ad litem if the alleged incapacitated person is not represented or is not adequately represented by counsel.
The guardian ad litem represents the interests of the alleged incapacitated person. However, that does not mean that the guardian ad litem will advocate for what the alleged incapacitated person wants. So, for example, if the individual does not want a guardianship, the guardian ad litem may still determine that it is in the best interests of the individual to have one.
IF YOU DO NOT WANT A GUARDIAN
If you do not want a guardian and someone is trying to have one appointed for you, you should see a lawyer right away. If the court decides that you are incapacitated, ask the court appoint a limited guardian. You may also nominate the person you wish to serve as a guardian, although the court will have the final judgment on what is in your best interests.
If you lose at the hearing, you have the right to appeal to a higher court. Be sure to consult a lawyer for the appeal.
WHO SHOULD BE GUARDIAN
Once a judge or jury determines that a person is incapacitated and in need of a guardian, the court must then determine who is the best qualified to serve as guardian.
The court must give consideration for appointment to the following persons in the order in which they are listed:
- a person designated in the power of attorney of the incapacitated person;
- the spouse of the incapacitated person;
- an adult child of the incapacitated;
- a parent of the incapacitated person or a person nominated by will of a deceased parent of the incapacitated person;
- any person related by blood or marriage with whom the incapacitated person has resided for more than six months prior to the filing of the petition; or
- a person nominated the incapacitated person who is caring for or paying for the care of the incapacitated person.
The court may pass over a person having a priority in order to serve the best interests of the incapacitated person.
GUARDIAN’S DUTIES
The powers and duties of an appointed guardian may be unstated or maybe very specific, depending on the final order of the court.
Generally, in an unlimited guardianship the guardian is responsible for the care and custody of the incapacitated person and the preservation of the “estate.”
However, a guardian has no power with respect to property or personal health care decisions which are subject to a valid power of attorney.
The guardian must encourage the self-reliability and independence of the incapacitated person.
The guardian must file an accounting at least once every two years with the court which details the guardian’s administration of the incapacitated person’s estate and which describes the current condition and circumstances (including residence) of the incapacitated person.
The guardian can pay all the expenses of the guardianship proceeding out of the incapacitated person’s estate. These expenses include reasonable medical, professional and attorney’s fees.
The guardian is allowed to sell, mortgage, lease or exchange the property of the incapacitated person with court approval when it is in the best interests of the incapacitated person.
Anyone who believes that a guardian is not doing his duty or is abusing his position should report the matter to the court. The court may then order an investigation. The court may remove a guardian if the guardian has not preformed properly or is unable to continue to perform his duties.
ENDING A GUARDIANSHIP
There are several ways that a guardianship might end:
- Any person, including the protected person may ask the court to end the guardianship. That person must convince the court that the protected person has regained capacity.
- A guardianship ends automatically when the protected person dies, but, the guardian may have limited authority to pay the protected person’s debts (relating to funeral, burial, last illness, taxes and so on), if the court approves.
- A guardianship limited to management of the estate may be terminated by the court it the guardianship property is reduced to $10,000 or less.
- A guardianship also ends when the protected person moves to another state and has a new guardian appointed there. When the guardianship ends, the guardian must take a final report to the court.
TERMPORARY GURADIANSHIP
In an emergency, a court can appoint a temporary guardian for a period of no more than 60 days. Temporary guardianship is used, for example, in cases in which a person cannot or will not authorize medical treatment needed to save his life. The person seeking to establish the guardianship must show not only that an emergency exists but also that the welfare of the incapacitated person requires immediate action and no other person appears to have authority to act.
Notice must be given and hearing must be held unless the court finds that immediate and irreparable injury to the person or injury, loss, or damage to the person’s property will occur before the alleged incapacitated person can respond to the petition in a hearing.
If no notice is given and the incapacitated person petitions the court for modification or termination of the guardianship, the court must hear the petition at the earliest possible time.
Just as in a regular guardianship, Letter of Guardianship will be issued, limiting the guardian to only that which is necessary to resolve the emergency.
The Senior Law Project of Indiana Legal Services, Inc. has more detailed information available on guardianship.
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