There’s No Such Thing As Guardian of the Person . . .

…or Guardian of the Estate, for that matter. Indiana’s guardianship code never uses the terms “guardianship of the person” or “guardianship of the estate.” Yet, people – and judges – use these terms all the time. What’s going on? Simply put, these terms are short-cuts to describe a set of powers assigned to the guardian. Generally, when some lawyer or judge describes you as a “guardian of the person” they mean to say you have those powers set forth in Indiana Code 29-3-8-2(a), Subsections (2), (3), and (4) only. When they say “guardian of the estate” they mean the powers set forth in Indiana Code 29-3-8-4, Subsections (1) through (9). Maybe. Who knows? Again, there’s no definition promulgated anywhere.

Really, this is part of the problem with guardianship practice in Indiana. It’s generally sloppy. Despite any intended spirit in the law to limit the powers of guardians as much as possible, it seems no one has time for such silly nuance. Slap ‘em with a guardianship or don’t. All or nothing. Black or white. Move along, now. NEXT!

Shortcut terms are fine, I get that. The problem, though, is that we use the shortcut terms so often that we lose sight of what those shortcuts refer to. We could do better with clearer, more meaningful Letters of Guardianship that enumerated the guardian’s powers. At least that would be a start. Oh, and we probably should explore how poorly these Letters of Guardianship are policed. More on that later.

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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