GUARDIANSHIP

A guardianship describes the court process of appointing a responsible person to look after the personal care and/or financial affairs of someone who cannot do so on their own.  A guardian can be appointed by the probate court to manage the interests of an incapacitated adult or minor child.

A guardianship is a court-supervised proceeding which names an individual to manage the affairs of an incapacitated person  or a minor

A guardian can be appointed by the Probate Court to manage the interests of any of the following individuals:​

  • Elderly person with dementia or other incapacity

  • Developmentally disabled person

  • Accident victim

  • Mentally impaired individual due to drug use

  • A minor under the age of eighteen

Our attorneys can navigate the Court system to help you get guardianship

What should I bring to an appointment? If the person has income or assets, please bring income and asset information. Also bring any current estate planning documents. We will need the names and addresses of those closely related to the incapacitated person or minor. 

What is Guardianship? A guardianship is a proceeding where an interested person or corporate entity petitions the Court to be appointed as guardian to handle the affairs of an incapacitated individual (known as the “protected person”). Some individuals are not legally able to handle their own affairs due to minority (under age 18) or incapacity. They may have been born incapacitated, or they may have become incapacitated because of an illness, accident, or decline in physical or mental capacities later in life. It may be necessary to establish a guardianship to protect such persons. A person may be appointed as guardian over health care and living arrangements and/or financial affairs.

How do I get Guardianship of someone? Any action to establish a guardianship must be filed in the Probate Court of the county where the protected person lives.  First, a Petition to Appoint a Guardian must be filed with the Court. This petition begins the guardianship process. When the Petition to Appoint a Guardian is filed with the Court, notice must be given to the incapacitated person and all interested parties. Then, the Court will set a hearing to determine if the individual is incapacitated and in need of a guardianship and to decide who is most qualified to serve as the guardian. At the hearing, the Court must be presented with proof that the individual is incapacitated. The Court will also consider whether the proposed guardian is suited to serve as guardian. If the Court finds that the proposed guardian is suitable, then the guardian must accept the appointment, file an oath, and obtain a bond (as required by the Court). The clerk then issues letters of guardianship, giving the guardian the authority to act on behalf of the incapacitated person.

What is a Guardian? A Guardian is a fiduciary who is appointed by the Court to be responsible for someone's estate and/or person.  The "estate" includes all accounts, policies, tangible personal property, and real estate that the protected person has an ownership interest in. However, if the protected person has an interest in a Trust, this is not part of the guardianship estate and must be kept separate. The guardian's property is not part of the guardianship estate either and must not be commingled with the guardianship accounts. If a Guardian is appointed over someone's person, he or she will have all authority regarding the protected person's health care and living arrangements.

What are the duties of a Guardian?  A guardian must handle the guardianship estate and person in the protected person’s best interests. A Guardian of the estate must pay bills from the guardianship account and keep the account balanced. The Guardian must keep all the protected person’s real estate and personal property insured and is responsible for the protected person’s income tax returns each year. An Inventory and Accounting must be filed with the Court. An Inventory lists all of the guardianship assets and their values. This must be filed with the Court within 90 days of your appointment. An Accounting shows all receipts, income, deposits, changes in value, sales, and distributions within the guardianship estate. The first Accounting is due on the one year anniversary of the appointment as guardian. The following Accountings are due every two years. The Guardian must first get a Court order to sell any assets. The Guardian cannot engage in transactions between himself and the guardianship estate without a Court Order. 

Is the Guardian entitled to a fee? Yes, a guardian is entitled to a reasonable fee. The Guardian must keep track of all the time  spent serving as guardian. The fee must first be approved by Court Order. 

 

Do I need a bond to serve as Guardian? Indiana law requires that a bond be posted with the Court when all guardians are appointed. The bond is necessary because it is like an insurance policy that protects the guardianship estate. The annual premium for the bond is paid from the guardianship checking account. At its discretion, the Court may not always require a bond.

Am I liable as Guardian? Generally, a guardian is not liable for the actions of the protected person. For example, if the protected person steals a car and wrecks it, the guardian cannot be charged with theft or be required to use his or her personal funds to pay for the damages. If the guardian acts in good faith in carrying out his or her duties, the guardian will not be held liable for his or her actions. However, if the guardian breaches his or her fiduciary duties, then he or she may be found liable. If the guardian is not doing his or her job properly or becomes unwilling or unable to serve, then the guardian maybe removed by the Court. A successor guardian will be appointed after a Court hearing.

When does Guardianship end? If the protected person is a minor, then the guardianship is terminated when the protected person turns 18. In the cases of adult guardianship, the guardianship may be terminated by the Court if the Court finds that the protected person is no longer incapacitated. The guardianship can also be terminated when the protected person dies or if he or she moves to another state.

Fort Wayne, Indiana attorneys offering services in estate planning, Wills, Trusts, estate and trust administration, probate, elder law, Medicaid, asset protection, and guardianship.

​© 2019 by Madyson Shannon