What can we do for you?


Imagine this scenario.  Your father executes a General Durable Power of Attorney appointing you as “attorney-in-fact”, or more commonly referred to as “power of attorney”.  In this capacity, you assist your father with paying the bills, speaking to insurance companies, and taking him to doctor’s appointments.  Time goes by, and your sibling begins questioning your judgment, such as accusing you of stealing money or disagreeing with your decision to place your father in a nursing home.  Unfortunately, your father is stuck in the middle of this dispute while he sits back and watches his children argue over what they believe is in his best interests.  Not surprisingly, your sibling decides to meet with an attorney and the next thing you know, you receive a notice that a guardianship petition has been filed in the Court.  Now what?  Can your sibling “leapfrog” you as the decision-maker for dad?  Do you have an opportunity to defend yourself?  Interestingly enough, in Indiana, the Power of Attorney and Guardianship statutes, and perhaps your County’s Local Court Rules of Procedure Applicable to Guardianships, address this exact situation.

If a guardianship petition for your father is filed, notice must be provided to your father, his spouse, adult children and parents (if there are no adult children).  Moreover, any person who is serving as guardian or who has the care and custody of your father must be notified.  Most importantly, the attorney-in-fact must be notified.  The Court may also require additional notice to other persons as it deems necessary.

In a perfect world, you would receive notice of the guardianship petition and upcoming hearing.  However, your sibling could file a petition for “temporary guardianship” alleging that an emergency exists, that your father’s welfare requires immediate action, and no other person has authority to act in the circumstances.  Notice is required prior to the Court ruling on the request, unless the Court finds that immediate and irreparable injury to the alleged incapacitated person, or injury, loss or damage to property, may result before a hearing on the petition.  Whether true or not, a petition for temporary guardianship typically alleges that an emergency exists and immediate and irreparable injury will occur if there is any delay in appointing a temporary guardian.  Although there are specific statutes regarding notice to interested parties in this situation that must be followed, you may find out after the fact that your sibling has been appointed temporary guardian due to this alleged “emergency”.  Now what do you do?

In Indiana, there is a powerful state statute at your disposal, which is I.C. §30-5-3-4(b).  Essentially, a guardian has no authority over property or personal health care decisions that are subject to a valid power of attorney.  Also, the guardian cannot revoke or amend the power of attorney unless the Court orders the guardian to do so.  However, a hearing must be held prior to the Court entering such an order, and the attorney-in-fact must be notified of the hearing.

In this situation, you should consider engaging an attorney to file a Motion to Dismiss the guardianship since there is a valid power of attorney in place which has not been properly revoked.  Most likely, the Court will first hear evidence from the parties to determine whether there are sufficient grounds to terminate the power of attorney.  These grounds could include your father’s lack of mental capacity to execute the Power of Attorney document, breach of your fiduciary duty (misappropriation of funds, improper transfers of property, etc.), and/or failure to act in the best interest of your father as it relates to his health care decisions (repeated falls at his house, hiring of inexperienced caregivers).

If the Court finds in your favor, the guardianship will most likely be terminated pursuant to state law and you will be able to resume your activities as attorney-in-fact for your father.  However, if the Court finds that sufficient grounds exist to terminate the power of attorney, your authority as attorney-in-fact will cease.  Your sibling, as guardian, will become the decision-maker for your father.

The “Battle of the Siblings” scenario does not bode well for family relations and should be avoided if at all possible.  That being said, should you find yourself in this situation as attorney-in-fact for a loved one, the law permits you to defend yourself against your sibling or another individual attempting to leapfrog you as the decision-maker.

Please note that this post is only a brief summary of the interplay between Powers of Attorney and Guardianships.  It does not constitute legal advice nor does it establish an attorney/client relationship.  Should you have specific questions regarding the above, please contact Benjamin T. Ballou or Preston G. Sisler at Hodges and Davis.

Hodges and Davis, P.C. - January 2015