Practice Area
Indiana Guardianship Attorney
When an individual lacks the legal capacity to manage their own affairs and has not previously designated an agent, a court-supervised guardianship may be necessary. Birch & Associates PC assists Indiana families with guardianship proceedings.
What Guardianship Is
Guardianship is a court-supervised legal arrangement in which one person — the guardian — is given legal authority to make decisions for another person — the ward — who has been determined by a court to lack the capacity to manage their own affairs. Indiana guardianship proceedings are governed by the Indiana Code.
Guardianship of the person gives the guardian authority to make personal decisions for the ward — including decisions about residence, healthcare, and daily activities. Guardianship of the estate (sometimes called conservatorship) gives the guardian authority to manage the ward's financial affairs. A court may appoint a guardian of both the person and the estate, or only one.
When Guardianship Is Needed
Guardianship is typically sought when an individual has lost capacity due to dementia, a serious illness, a developmental disability, or another condition — and has not previously signed a durable power of attorney or healthcare power of attorney designating someone to act on their behalf.
Without a power of attorney, a family member who needs to manage a loved one's finances, access their accounts, or make medical decisions may have no legal authority to do so. Guardianship provides that authority, but it requires a court proceeding and ongoing court supervision.
The Guardianship Process in Indiana
To establish a guardianship in Indiana, a petition must be filed with the appropriate court. The proposed ward must be notified and has the right to contest the proceeding. The court will typically appoint a guardian ad litem to represent the proposed ward's interests and may require a medical evaluation.
If the court determines that guardianship is necessary and that the proposed guardian is appropriate, it will issue an order appointing the guardian. The guardian must then report to the court periodically and obtain court approval for certain significant decisions.
Limited Guardianship and Least Restrictive Alternatives
Indiana law favors the least restrictive alternative to full guardianship. Courts are required to consider whether a less restrictive option — such as a power of attorney, a representative payee arrangement, or supported decision-making — would adequately address the individual's needs before imposing a full guardianship.
When full guardianship is necessary, Indiana courts may limit the guardian's authority to specific areas where the ward lacks capacity, rather than granting plenary (full) guardianship over all personal and financial decisions. A limited guardianship preserves the ward's autonomy in areas where they retain decision-making ability.
Ongoing court supervision is a significant difference between guardianship and a power of attorney. A guardian must file annual reports with the court, account for the ward's assets, and seek court approval for major decisions such as selling real estate or changing the ward's residence. This oversight protects the ward but adds time and cost to the process.
Frequently Asked Questions
Is guardianship the same as power of attorney?
No. A power of attorney is a document signed voluntarily by an individual while they have legal capacity, designating someone to act on their behalf. A guardianship is a court-supervised arrangement imposed when an individual lacks capacity and has not previously designated an agent. A power of attorney is generally preferable because it avoids the cost and formality of court proceedings.
Can guardianship be avoided?
In many cases, yes. A durable financial power of attorney and healthcare power of attorney, prepared while the individual still has legal capacity, give a trusted person the authority to manage finances and make medical decisions without going to court. This is why estate planning attorneys encourage clients to prepare these documents before a health crisis occurs.
How long does a guardianship proceeding take in Indiana?
The timeline varies depending on the court's docket and whether the proceeding is contested. An uncontested guardianship can sometimes be established within a few weeks to a couple of months. A contested proceeding — where the proposed ward or another family member objects — can take considerably longer.
What is the difference between guardianship of the person and guardianship of the estate?
Guardianship of the person gives the guardian authority to make personal decisions for the ward — including decisions about where they live, their healthcare, and their daily activities. Guardianship of the estate (sometimes called conservatorship) gives the guardian authority to manage the ward's financial affairs, including their assets, income, and property. An Indiana court may appoint a guardian of both the person and the estate, or only one, depending on the ward's specific needs.
Can a guardianship be terminated in Indiana?
Yes. A guardianship can be terminated if the ward regains capacity, if the ward dies, or if the court determines that guardianship is no longer necessary. The ward or any interested person can petition the court to modify or terminate the guardianship. The guardian can also petition to be discharged if they are no longer able or willing to serve, in which case the court will appoint a successor guardian.
Related Practice Areas
Schedule a Consultation
Discuss guardianship matters with Fema Birch at our Indianapolis office.
Phone
(317) 721-1623Address
801 Shelby Street
Indianapolis, Indiana 46203
Hours
Mon–Fri 9am–7pm
Sat 9am–5pm
Practice Areas
Need to establish a guardianship in Indiana?
Contact Birch & Associates PC to discuss your situation.