This article from the Indiana Lawyer, while a bit pessimistic, also makes an excellent point: good lawyers should always advise their clients on all options. It is true that some guardianships could be avoided if lesser restrictive options were presented. However, these less restrictive measures - such as a power of attorney or limited guardianship - are not always practical. Institutions such as banks and health care providers might not speak with a guardian who only has very limited powers. And what if an emergency arises and the protected person needs assistance but that emergency was not contemplated in the limited guardianship and the guardian is powerless to act? Unfortunately, these limitations are systematic and cannot be fixed overnight.
So yes, a client should be given a variety of options when a family member or loved one needs additional assistance. But attorneys also need to explain the pros and cons of each option.
Additionally, if a plenary guardianship is established, the attorney should act as a support system for their client by providing advice and guidance on how to properly carry out the duties of a guardianship. For example, the attorney can counsel the guardian on how to allow the protected person to make their own decisions to the extent that they are able. Attorneys should also give guidance on how to manage assets and communicate with other family members.
In short, a guardianship can be a valuable tool to assist an incapacitated adult, but guardians need training and support in order to carry out their duties in an effective manner.
Focusing on legal issues relating to Indiana's elders as well as trust & estate planning & administration.
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