Co-guardianship is Co-nfusing

Recently a colleague raised an issue involving the practical problems faced by co-guardians, particularly when dealing with banks or with other financial transactions. When there are two guardians, then both have to act together – act together to write checks to pay bills, act together in making decisions at a care plan conference, etc.

Yes, co-guardians are allowed under our guardianship code, but the code offers little no guidance on how co-guardians should operate in practice. Indiana Code 29-3-5-4 talks about how a court can “appoint as guardian a qualified person or persons…” But the code says nothing about whether co-guardians must act together or may act separately.

The same is not the case for Powers of Attorney. Our Power of Attorney statute specifically provides for co-agents under a Power of Attorney, stating, “Except as otherwise stated in the power of attorney, if more than one (1) attorney in fact is named, each attorney in fact may act independently of the other attorney in fact in the exercise of a power or duty.” Indiana Code 30-5-4-3.

In the guardianship context there are two acceptable ways to address this issue, and one best way. I’ll get to the “best” way in a moment, but first let’s talk about the “acceptable” ways.

First, the Order appointing the co-guardians could contain language that allows each co-guardian to act independently, and that language would have to carry forward to the terms of the Letters of Guardianship, too.

Second, one of the co-guardians could execute a guardian’s power of attorney to the other under Indiana Code 29-3-9-1, although such a delegation of powers has a built in expiration date.

But here’s the “best” way of addressing this issue: Don’t appoint co-guardians.

I know, I know, sometimes we seek co-guardianships as a way of avoiding battles or hurt feelings among siblings when one’s appointed and the other is not. All four kids may feel warm and fuzzy if all of them were appointed co-guardians. But it’s usually a bad idea. What sounds like a good idea on the front end when we’re talking about bestowing titles quickly feels like a bad idea when you’re slogging through the hard work of actually acting as guardian.

And it’s not just the hassle of getting both (or all) of the guardians together to do the simplest of tasks. What happens when two co-guardians disagree on what should be done? Then it’s back to court for some order breaking the tie, which is a waste of time and money.

About H. Kennard Bennett

Ken Bennett is a partner in the elder law firm of Bennett & McClammer and is Founder & Team Leader at Scout Guardianship Services. He also founded and serves as Executive Director and Senior Counsel to the Center for At-Risk Elders, Inc., a public interest law firm that, among other things, operates the CARE Volunteer Advocates Program, providing guardianship services to low-income, unbefriended, incapacitated adults.

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