A legal guardianship is a court-ordered appointment of a person to make decisions on behalf of a minor or incapacitated adult. The person who requests the guardianship, if appointed, is called the “guardian” and the person who is subject to the guardianship is called the “protected person.” Essentially, the guardian can step into the protected person’s shoes to determine where the protected person should live, what kinds of medical care the protected person needs, and which financial and business choices are best for the protected person. Due to the implications of a guardianship on a protected person’s rights, it has never been easy to get guardianship over someone. Strict legal procedures must be followed and specific criteria must be presented to and approved by a judge before the guardianship can begin.
This year, Indiana lawmakers have added even another step that must be taken before a person can become subject to a guardianship. Now, before a person petitions for a guardianship, he or she must explore all of the less-restrictive alternatives to a guardianship. The new law defines less-restrictive alternatives as “an approach to meeting a person’s needs that restricts fewer rights of the person than would the appointment of” a guardian. Ind. Code Ann. 29-3-1-7.8. It must then be reported to the court that such alternatives were considered, and, if they are not feasible for the situation at hand, the reasons why not.
Less-restrictive alternatives include utilizing legal documents outside of the court system such as a power of attorney. (For more information on powers of attorney, see our page on disability planning: Disability Planning and Guardianships.) Another narrower less restrictive alternative would be to name someone as a payee for social security benefits.
Yet another example of a less restrictive alternative is a supported decision-making arrangement. A relatively new concept, a supported decision-making agreement can be signed by someone who needs help in making certain types of decisions, but has the capabilities necessary to make decisions and wishes to maintain autonomy. Indiana law defines it as “the process of supporting and accommodating an adult in the decision-making process to make, communicate, and effectuate life decisions, without impeding the self-determination of the adult.” Ind. Code Ann. § 29-3-14-1. This involves formally selecting trusted persons to assist them in the areas of life where they need extra help. A major difference between supported decision-making and a guardianship is that the appointer retains the right to make the final decision; the identified “helpers” cannot (or rather, are not supposed to) decide things for them.
It will be interesting to see if any of these alternative options will become more common than guardianships. For sure, those with very limited capacity will likely still require guardianships so that another can act on their behalf in all aspects of life. The new requirements give us as legal advisors and our clients an opportunity to pause, consider all options, and pursue a creative and tailored approach for the best course of action for each family.