What is Guardianship

/What is Guardianship
What is Guardianship 2017-04-20T14:43:31+00:00

The elder population in America is growing. According to the Indiana Adult Guardianship Task Force, persons 65 years and older will outnumber children under the age of fifteen by 2035. Through medical advancements and easy access to healthcare, Americans are living longer than ever before, and spending a larger portion of their life as a senior adult.

And as this population ages, the need for guardianship services for them will grow.

Guardianship

Guardianship is a legal process that gives an individual or entity the power to make decisions on behalf of an incapacitated individual, who cannot make sound decisions by themselves.

An incapacitated individual is an adult (18 years or older) who has been determined by a court of law to not be able to manage their own affairs including food, clothing, shelter, and finances because of a mental condition. Mental conditions range from a mental illness, to developmental and intellectual disabilities, to other disorders that affect an individual’s cognitive functioning.

When the Indiana Adult Guardianship Task Force released its “Who’s Overseeing the Overseers?1” report in 2012, it reported that there were 7,000 incapacitated adults under court ordered guardianship in Indiana.

Alternatives to Guardianship

Since establishing guardianship of a protected person may remove certain rights (such as the right to vote, marry, and own property), it is best to try and find alternatives to guardianship before filing a petition. Typically, these alternatives can only be put into place if the individual is still capacitated.

Alternatives to guardianship can include:

Termination of Guardianship

Guardianship is not intended to be a life-long arrangement. In some cases, an individual may remain incapacitated their entire lives, to the point that they need a guardian as long as they are alive. However, in cases of temporary incapacitation, it is expected that the rights of the individual be returned once they regain capacity.

An annual review is completed with every guardianship case to ensure that the guardian is still needed. Sometimes, with proper treatment and handling of affairs, an individual can become competent enough to manage their own affairs once again. At this point the guardian would be removed, and the individual would have all rights returned to them.

Guardianship can also be terminated if it is found that the guardian is neglecting his or her duties or has been conducting themselves inappropriately as a guardian.

Types of Guardianship

Below is a summary of the various types of guardianship (as defined by the National Guardianship Association).

In the definitions below, “ward” refers to the incapacitated individual in need of guardianship.

The National Guardianship Association (NGA) has a more complete list of terminology available on their website.

Indiana Adult Guardianship State Task Force. (2012). Who’s overseeing the overseers?

A report on the state of adult guardianship in Indiana. Retrieved from https://www.in.gov/judiciary/admin/files/ad-guard-2012-full-report.pdf

Indiana State Bar Association. (2013). Guardianships in Indiana. Retrieved from http://www.inbar.org/

National Guardianship Association. (2017). Guardianship terminology. Retrieved from  http://www.guardianship.org/pdf/Terminology.pdf

National Guardianship Association. (2017). What is guardianship. Retrieved from http://www.guardianship.org/what_is_guardianship.htm

Thomson Reuters. (2017). Guardianship of incapacitated or disabled persons. Retrieved from http://family.findlaw.com/guardianship/guardianship-of-incapacitated-or-disabled-persons.html