If your elderly parent does not have an estate plan in place that includes powers of attorney, health care representatives, advance directives or other end-of-life care plans, he or she may require a guardian. In Indiana, the court appoints a guardian when an incapacitated individual needs someone to provide care and supervise his or her property.
Even though the guardian must update the court regularly on his or her activities, you may feel that there are reasons he or she is not the best person for the job.
Only the court has the authority to remove a guardian. However, as an adult child of the ward, you have an interest in the guardianship, so you may petition the court to remove the guardian. Your petition will result in a court hearing where you can testify and submit evidence regarding your reasoning for believing the guardian unfit. These might include the following:
- Undue influence
- Breach of fiduciary duty
- Breach of trust
- Fraud
The court may not remove a guardian simply based on the fact that he or she mismanaged your parent’s finances while fulfilling the duties of the role. As long as the guardian can show that any actions he or she made were in good faith, the court will probably not hold him or her liable for the loss. However, if the guardian did mismanage your parent’s property for personal gain, the court will hold him or her liable even if the guardian resigns.
Regardless of your parent’s mental state, he or she has the right to visit with you and the rest of your family. If the guardian is restricting your access to your parent, this violates his or her rights, and the court may consider removal.
If your parent is no longer incapacitated, he or she may petition the court to terminate the guardianship, or to limit the guardianship. Many other factors may apply due to the unique circumstances of your case; therefore, this general information should not be interpreted as legal advice.