Typically when our Highland family law attorneys talk about guardianship of an individual, we are speaking of children. However, as the population ages, with increasing frequency we are seeing individuals seeking guardianship of elderly relatives and loved ones.
Adult guardianship in Indiana, similar to child guardianship, is a legal process whereby the court determines that a person lacks the capacity or ability to communicate decisions for themselves. While this can involve older adults with incapacity rooted in certain forms of dementia, such as Alzheimer’s disease, it could also involve a person over 18 with developmental disabilities or an adult who has suffered a traumatic brain injury.
The process involves first speaking with a qualified attorney who can relay your options. From there, your lawyer can help you obtain a physician’s statement, which describes the person’s diagnoses and functional limitations. Then, your attorney will file a petition on your behalf in court. A notice will be sent to that individual and any others who may require notification under law. The court will likely hire a guardian ad litem, who will act as an advocate for the incapacitated person during the proceedings. The court will then hold a hearing and make a determination based on the merits of the claim.
Once guardianship is awarded, he or she can act on the other person’s behalf in all matters of their well-being, including their finances, health care and living arrangements.
Often, this process is undisputed and relatively straightforward. However, there are some situations in which disputes arise. The case of In re J.A.L., before the Montana Supreme Court, is one such example. Although this is an out-of-state case and state laws on guardianship vary, the same general legal principles apply.
Here, according to court records, a husband appealed the guardianship/conservatorship of his wife awarded to her brother and sister-in-law.
According to court records, the husband and wife, who suffered physical mobility problems from multiple sclerosis and some cognitive impairments, had been married 50 years. The pair lived together until 2011, and the husband provided care for his wife during that time. Both expressed wishes to remain in their home together.
However, her daily needs eventually became more than the husband could handle, and she was placed in an assisted-living facility. She was later discharged because of her husband’s aggressive behavior with medical staffers. After this occurred more than once, he suffered and emotional breakdown and was admitted to a state hospital for a time. He was given psychiatric medications, but stopped taking them after his discharge.
In the meantime, the woman’s son and daughter sought and obtained appointments to serve as co-guardians and conservators. She was placed in a different assisted-living facility. She initially appeared happy, but her family said after several visits from her husband, she began acting out against staffers and was discharged.
Discord in the family continued, with the husband reportedly interfering with his wife’s communications with both her children and her guardian ad litem. At an emergency hearing, the court removed the children as guardians, and instead appointed the woman’s brother and sister-in-law. She was then re-admitted to the facility, with the condition she would have no contact with her husband. Since then, her family says, she has been doing well at the facility.
From there, her husband filed two petitions to secure guardianship of his wife. A total of six hearings were held. The district court ultimately held the brother and sister-in-law would serve as permanent co-guardians and conservators, and they were authorized to limit contact between husband and wife.
The husband appealed.
The state supreme court noted that usually, determination of guardianship of an incapacitated adult follows a certain hierarchy. First, the spouse is considered, followed by the person’s adult children or children and then by a relative who has shown a sincere, long-standing interest in the person’s well-being. Of course, the priorities aren’t legally binding, and more or less serve as a guide to the court.
The state high court ruled the district court was justified in finding that the husband’s history of “inappropriate behavior” in caring for his wife, refusing to obey court orders and dealing with those in charge of her care gave ample reason to deny him appointment as his wife’s guardian.
While courts are not eager to grant guardians the right to restrict a ward’s marital relationship, the incapacitated adult’s best interests are the first consideration. Here, there was ample evidence indicating the wife was thriving in her current setting, absent the husband’s involvement.
Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond. Call Toll Free 877-446-5294.
In re J.A.L., July 23, 2014, Montana Supreme Court
More Blog Entries:
Frackman v. Enzor – Evidence of Substance Abuse, Mental Illness, a Material Change in Circumstance for Child Custody Case, July 21, 2014, Indiana Family Law Attorney Blog