By Rebecca W. Geyer
Guardianship, among the most restrictive options for assisting disabled individuals because it takes decision-making rights away from the person, is a commonly used means of assisting people with disabilities. Under Indiana law, when a person reaches the age of 18, he or she is no longer a “minor.”[1] As a result, the person has the right and responsibility to make certain legal choices that adults make.
For some young adults with intellectual disabilities, this may be an exciting opportunity for increased independence, but there are often family concerns about how to best support that person’s self-determination in making life decisions such as health care or financial management.
Similar concerns exist with older adults diagnosed with conditions which may lessen their ability to comprehend important decisions or decrease the executive skills necessary to carry out day-to-day tasks. There are many tools other than guardianship that can ensure that individuals remain an active part of decision-making despite their underlying disabilities. The alternatives can involve informal supports without legal documentation, or be as complex as establishing limited guardianships in court.
Understanding alternatives to guardianship is imperative as effective July 1, 2019, Indiana changed the required elements of a guardianship petition, requiring the petition to describe “the petitioner’s efforts to use less restrictive alternatives before seeking guardianship,” including a description of the less restrictive alternatives that were considered but ruled out, and why they won’t work.[2]
In addition, I.C. § 29-3-9-6, which governs the annual or biennial accounting and reporting requirement of guardianships, was amended to require that the guardian’s description of the protected person’s current condition and circumstances include “a specific showing of whether guardianship is still necessary and appropriate, and whether any less restrictive alternatives have been considered or implemented.” [3] A new section, 29-3-1-7.8, was added to Indiana’s guardianship statutes, and lists the creation of a Power of Attorney, the appointment of a health care representative, the appointment of a representative payee, “appropriate technological assistance,” and “a supported decision-making agreement” as examples of less restrictive alternatives.
Supported decision-making is a new concept in Indiana and allows individuals with disabilities to make choices about things affecting their own lives, with help from a team of people they know and trust. Rather than appointing a guardian to make all the decisions, supported decision making allows the person with the disability to make his or her own decisions. The individual with disabilities puts an agreement in place naming people to help the individual in the decision-making process to make, communicate and effectuate life decisions without impeding the individual’s rights to make his or her own decisions.
Supported decision-making agreements can be made to cover specific topics such as finances, physical health, mental health, legal matters, services and supports, education, work, and housing decisions. Under Indiana’s new law all options may be combined in a way to best meet the needs of the person.
At Rebecca W. Geyer & Associates, we are excited to see these changes to our guardianship laws to ensure that individuals maintain as much independence and autonomy as possible.
[1] I.C. § 29-3-1-10
[2] I.C. § 29-3-5-1
[3] I.C. § 29-3-9-6
