Guardianships become necessary if someone is not legally able to act on his or her own behalf. Minors have guardians, which are usually their parents. Adults can also have guardians, if the adults are physically or mentally disabled and not able to act on their own accord. Guardianship can be complicated if the person who needs a guardian is not a minor under the control of his or her parent. Although it is complicated, it is a very important legal concept that provides essential protection for the vulnerable.
If you believe someone in your life needs a guardian, you need to take swift action. O’Drobinak & Nowaczyk, P.C. can help. We can also provide assistance in making an advanced incapacity plan while you are still of sound mind so guardianship will not become necessary if something happens to you in the future.
To learn more about the ways in which we can assist with all legal matters related to guardianship, give us a call at 219-865-2285. You can speak with a Schererville, Indiana guardianship lawyer to get personalized advice and answers to questions including:
- What is guardianship?
- What are the pros and cons of guardianship?
- How can a Schererville, Indiana guardianship lawyer help me?
What is Guardianship?
When someone is underaged or is physically or mentally unsound, guardianship allows for another person to be named to act on behalf of the individual who cannot act on his own. The person in need of a guardian is called a ward. Minors under age 18 are presumed to be wards and need guardians because the minors are not old enough to act. If someone is severely mentally or physically disabled and cannot make or communicate decisions, a court can appoint a guardian upon proof of incapacity.
In some cases, a person will be disabled from birth and a parent, relative, or other appointed person will be that disabled individual’s guardian, even after the disabled person turns 18. In other situations, a person does not become incapacitated until later in life. For example, an individual could become incapacitated due to a car accident which causes brain damage, or could become incapacitated as a result of advanced dementia. In these types of cases, guardianship proceedings will be necessary in court both to prove guardianship is needed and so the court can appoint an appropriate guardian.
The guardian will have a fiduciary duty to the ward and must act in the ward’s best interests. The guardian can act on behalf of the ward, doing things like managing his or her assets and deciding what nursing home the ward should live in.
Court oversight of the guardian is generally necessary in order to make sure the guardian is fulfilling his role. The guardian could be a close family member, or could be someone the court deems appropriate from outside of the family. The incapacitated person usually has no say in choosing a guardian, since the ward would not need a guardian if he could make such a decision and express such a preference. The person who the court appoints may potentially be someone who the incapacitated person would not necessarily have selected on his own.
What are the Pros and Cons of Guardianship?
One of the key benefits of guardianship is the ability to gain control of someone’s assets and decisions after that individual is incapacitated. Guardianship can be the only option in these circumstances to protect a person who can no longer act on his own. If no advanced incapacity plan is in place, guardianship becomes essential. The court oversight of guardians can also sometimes be a benefit, since the court ensures the guardian is doing his job and acting in the ward’s interests.
There are downsides to guardianship as well. Guardianship proceedings are expensive and stressful for a family dealing with incapacity. The intrusion of the court can be burdensome. There may be disagreements over who should be guardian, and the person who is most impacted– the ward– has no say in who is acting on his behalf.
If a person acts before incapacity and uses legal tools like power of attorney and advanced directives, all of these downsides can be avoided and a greater degree of autonomy can be maintained, even if incapacity occurs.
How can a Schererville, Indiana Guardianship Lawyer Help Me?
O’Drobinak & Nowaczyk, P.C. provides help with the creation of an incapacity plan so guardianship does not become necessary. We also offer assistance with guardianship proceedings and help in situations where there is reason to believe guardians are not doing their job correctly.
To find out more about the assistance a Schererville, Indiana guardianship lawyer can offer to you and your family, give us a call at 219-865-2285 or contact us online today.
