News & Insights

In Indiana, A Durable Power of Attorney Can Avoid the Need for a Guardian
November 6, 2017


A recent Indiana case (In re the Guardianship of Hellen Kinney Morris) has shed new light on the relationship between a designated power of attorney and guardianship. The Court of Appeals held that once a power of attorney is created, no guardianship can be imposed with regard to matters that are subject to the power.

In this case, an elderly mother executed a durable power of attorney appointing two of her six children as attorneys in fact. The power of attorney gave the two children broad powers with regard to her property and health care. Several years later, the woman was diagnosed with mild to moderate dementia, and the other four children filed a petition to appoint guardians for her because she “[could not] care for herself nor make decisions on her behalf.” The trial court issued an order which found the woman to be “incapacitated,” and appointed all six children to be co-guardians, each child being appointed guardian over a specific area of the woman’s life. The two children who were already power of attorneys declined their appointments and appealed the trial court’s ruling.

The Appellate Court upheld the finding that the mother was incapacitated, but, relying on Indiana Code section 30-55-3-4(b), disagreed with the need for co-guardians. The court stated that “if an incapacitated person’s attorney in fact is different than the person’s guardian, the attorney in fact remains in control unless the trial court holds a hearing and orders the guardian to revoke the power of attorney.” Since the woman executed a durable power of attorney appointing two of her children as her attorneys in fact, with broad powers with respect to her property and health care, the attorneys in fact are in control, and the guardians do not have any power with respect to the woman’s property and health care. The case was remanded to the trial court to determine whether any guardians were necessary in light of the power of attorney.

Indiana law is clear about giving priority to agents under a durable power of attorney. If you properly execute a durable power of attorney, you can avoid the need for guardianship proceedings in the event you are adjudged incapacitated. For more information, or if you would like to execute a durable power of attorney, please contact May Oberfell Lorber’s estate planning department, 574-243-4100.

The content of this article is for information purposes only, and neither contains nor should be considered legal advice.