Legal Status and Guardianship

Legal Status and Guardianship

Legal Status

•          Staff must know the legal status of the consumers that they are working with?

•          Emancipated Adult

•          Guardianship

•          Power of Attorney

•          Health Care Representative

Emancipated Adult:

•          An emancipated adult is an individual who has not been judged incompetent in a court of law.

Guardian

•          As defined in Indiana Code 29-3-1-6 means a person who…is appointed by a court of law and is responsible for the person or the property of an incapacitated person. This includes a temporary guardian, a limited guardian, and a successor guardian.

Two Types of Guardianship

•          Primarily there are two types of guardians.

•          Of the person: May affect entering into a contract, voting, getting married, medical consent.

•          Of the Estate: Affects primarily financial affairs

What Are the Duties and Powers of a Guardian?

•          Unless modified by the Court, a guardian has most of the powers and duties that a parent has toward a minor child. The guardian, however, does not have to provide for the ward out of his or her money and is not liable to third persons for acts of the ward solely because he or she is guardian. (5-312)

•          The guardian has custody over the ward and can decide where the ward will live, either in or out of state. The guardian may choose to have the ward live with him or her but is not required to do so.

•          The guardian can put the ward in a hospital, nursing home, boarding home or other institution. However, the guardian is not allowed to commit the ward against his or her will to a mental health institution without going through the formal legal procedure for involuntary commitment.

•          The guardian must see to the care, comfort and maintenance of the ward and, where appropriate, arrange for training and education.

•          The guardian must take care of the ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of the ward is in need of protection.

How Can Objections Be Made to the Actions of a Guardian or Conservator?

•          The guardian or conservator, whether public or private, may be approached directly with the concern or objection. If this approach does not work in the case of a private guardian or conservator, then the objection can be taken to the Probate Court responsible for the guardianship or conservator ship. In the case of a public guardian or conservator, a reasonable next step would be to contact the supervisor of the State agency, since it might be possible to resolve the issue within the agency before involving the Probate Court.

•          A guardian or conservator who fails to act in the best interests of the ward or protected person can be removed by the Probate Court. The Judge may appoint a Visitor to investigate the situation and write a report. A hearing is held and notice is given to all people concerned. Parties may be represented by lawyers, present evidence and cross-examine witnesses.

What Obligation Does the Guardian Have to Include the Ward in Decisions?

•          It is the guardian's duty to act in the best interests of the ward. Ideally, this includes discussing with the ward his or her needs and interests and involving the ward as much as possible in any decisions made or actions taken. Generally, the ultimate decisions are left to the guardian.

•          As a practical matter, the guardian may also not be able to control absolutely all aspects of the ward's life. Just as a minor child may at times resist a parent's wishes, a ward may do the same. In situations such as this, it is usually best for the guardian to recognize and respect that the ward may have certain needs and wants. This should be done on an individual basis, taking into account both the wishes and capabilities of the ward and the responsibilities and judgment of the guardian.

Is a Guardian Legally Responsible for the Acts of the Ward?

•          A guardian is not individually liable to others for the actions of the ward solely because he or she is the guardian. Generally, the guardian is only responsible if the guardian’s own actions caused harm to another person. (5-312)

What Responsibilities Does a Guardian Have For the Ward's Finances?

•          When the ward has little money or property and no conservator has been appointed, the guardian has limited authority to manage the ward's money and property. If the ward owns real estate or has a substantial amount of money or property which he or she cannot manage effectively, the Probate Court may appoint a conservator in addition to a guardian or the Court may appoint one person to do the job of both guardian and conservator.

Other Areas of Interest

•          A guardian must be appointed by a judge in a court of law.

•          A number of parents will say they are legal guardian over their son or daughter. They are only if they have been to court.

•          We need to have the guardianship papers on file.

•          Remember: Know your consumer’s legal status.

•          Know how the consumer's legal status affects you.

•          Ask your QMRP for the information.

Guardianship does not affect: Respect, Dignity, and Common Courtesy!