News & Insights

Alternatives to Guardianship
July 13, 2015
by Marcellus Lebbin

 

South Bend / Mishawaka, IN – Legal guardianship is a fiduciary relationship created between a minor or incapacitated adult (the “ward”) and a person or organization deemed qualified by a court to manage the ward’s personal care or finances (the “guardian”). In Indiana, the court with probate jurisdiction in the prospective ward’s county of residence has jurisdiction over the guardianship proceedings.

The court takes the appointment of a guardianship very seriously, as the ward loses legal rights in the areas that he or she has been deemed incapable of managing. If appropriate planning was done prior to an adult’s failing physical or mental health, guardianship should be the last option for that individual.

For individuals who prefer assist only in the areas most necessary, there are several less restrictive alternatives to guardianship available in Indiana. These include Power of Attorney (POA) of person and/or finances, Health Care Representative, Fiduciary Management Services, jointly owned bank accounts, Representative Payee, and trusts.

Estate planning documents have increasingly been utilized to reduce the courts’ involvement in matters previously requiring the appointment of a guardian. If timely executed, these alternatives to legal guardianship can help avoid excessive legal fees and probate court supervision.

For example, through a Power Attorney you can authorize your agent to act in financial, health care, or business decisions, all without court action. Additionally, a revocable trust can be set up during your life to manage your assets and you can serve as trustee until you become incapacitated, at which time your trust terms provide for a successor trustee. For someone who just needs assistance managing a small subset of their assets, such as Social Security benefits, a person can be named the representative payee for these benefits only, limiting their power to handling benefits only from this specific program.

Although these alternatives are not always a substitute for a guardianship, they can help delay court involvement when it’s not absolutely necessary, and they also help preserve the ward’s sense of independence, which can contribute to the ward’s overall well-being.

Ultimately, advanced planning for incapacity can ensure that you are able to manage your own affairs for as long as possible, and when you need the help of others, you have a say in who will assist you and how. Over the years, I have worked with countless clients to execute estate planning documents that provide instructions for the management of their estate in case of failing physical or mental health. I have also helped incapacitated individuals and their families make a smooth transition to a guardianship. If you’re interested in exploring the less restrictive alternatives to guardianship or a member of your family is in need of a guardian we would be happy to assist you with navigating the procedures.

 

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