When does a power of attorney get preference to be named as guardian?

God love our Indiana guardianship code…

There are times when a petition for guardianship is filed because a prospective ward’s attorney-in-fact under an existing power of attorney is either not doing their job, or not doing it well. Under our guardianship code, does the power of attorney have any priority in the consideration of who should be appointed guardian? Well, yes. Maybe. Sort of.

To understand this wart, two sections of the guardianship code need to be read in their entirety (all the emphases are mine):

Ind. Code § 29-3-5-4: Considerations for appointment of guardian

The court shall appoint as guardian a qualified person or persons most suitable and willing to serve, having due regard to the following:

(1) Any request made by a person alleged to be an incapacitated person, including designations in a durable power of attorney under IC 30-5-3-4(a).

(2) Any request made for a minor by: (A) a parent of the minor; or (B) a de facto custodian of the minor, including a designation in a power of attorney under IC 30-5-3-4(b) or IC 30-5-3-4(c).

(3) Any request contained in a will or other written instrument.

(4) A designation of a standby guardian under IC 29-3-3-7.

(5) Any request made by a minor who is at least fourteen (14) years of age.

(6) Any request made by the spouse of the alleged incapacitated person.

(7) The relationship of the proposed guardian to the individual for whom guardianship is sought.

(8) Any person acting for the incapacitated person under a durable power of attorney.

(9) The best interest of the incapacitated person or minor and the property of the incapacitated person or minor.

 

Ind. Code § 29-3-5-5: Persons entitled to consideration for appointment as a guardian

(a) The following are entitled to consideration for appointment as a guardian under section 4 of this chapter in the order listed:

(1) A person designated in a durable power of attorney.

(2) A person designated as a standby guardian under IC 29-3-3-7.

(3) The spouse of an incapacitated person.

(4) An adult child of an incapacitated person.

(5) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a parent of an incapacitated person and attested to by at least two (2) witnesses, or in a power of attorney of a living parent of an incapacitated person under IC 30-5-3-4(c).

(6) A parent of a minor, a de facto custodian of a minor, or a person nominated: (A) by will of a deceased parent or a de facto custodian of a minor; or (B) by a power of attorney of a living parent or a de facto custodian of a minor.

(7) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six (6) months before the filing of the petition.

(8) A person nominated by the incapacitated person who is caring for or paying for the care of the incapacitated person.

(b) With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section.

 

So, the first section (Section 4) provides a list of people the court must “[have] due regard” for in deciding who is best suited to be guardian. The next section (Section 5) lists an “order of considerations” or “priorities” for who should be appointed. Confused yet?

Section 4 doesn’t list particular people, but instead talks about factors the court should give “due regard” to in deciding who should be appointed – e.g., the “request” of the alleged incapacitated person’s spouse, etc. On the other hand, Section 5 does list persons related to the alleged ward who should be given priority.

Adding another wrinkle to this: See that reference to IC 30-5-3-4(a) in Section 4 above? That is from the Power of Attorney code, which provides that:

 

Ind. Code § 30-5-3-4: Guardians; nomination; appointment; powers and duties; amendment or revocation of power; hearing; notice

 (a) A principal may nominate a guardian for consideration by the court if protective proceedings for the principal’s person or estate are commenced. The court shall make an appointment in accordance with the principal’s most recent nomination in a power of attorney except for good cause or disqualification.

In other words, if there is specific language in the power of attorney that nominates the attorney-in-fact as guardian (should a guardian be deemed necessary), then that designated person must be appointed guardian “except for good cause shown or disqualification.” This would seem to conform with Section 5 of the guardianship code above where “a person designated in a durable power of attorney” is number one on the priority list.

But, what about an attorney-in-fact named in a power of attorney that does not have language that actually nominates the attorney-in-fact as guardian? Does that attorney-in-fact have any priority in the court’s consideration of who should be named guardian? No.

The “order of consideration” section (Section 5 above) only gives priority to “a person designated in a durable power of attorney” without referencing back to the power of attorney code section. Surely, we must assume that the use of the term “designated” there means the same thing as the term is used in Section 4 when it says, “designations in a durable power of attorney under Ind. Code § 30-5-3-4(a).” If so, then only if the power of attorney has the special designation language must the attorney-in-fact be given priority in the selection decision.

Now, you are right to point out that part of Section 4 (Ind. Code § 29-3-5-4(6)) refers to “[a]ny person acting for the incapacitated person under a durable power of attorney,” without any reference to whether they have been “designated” guardian within the power of attorney document. But remember the items listed in Section 4 are only factors that the court must give “due regard” to, which does not translate to a list of priorities.

Bottom line: Whether the attorney-in-fact in a power of attorney must be given any preferential treatment by the court deciding who to name as guardian depends on the language of the power of attorney itself.

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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