Virtual Bookkeeping Services

Written by Matthew S. Lewis

In Indiana, there are two (2) main ways a person can be legally given the authority to act on behalf of someone else.  They are a Guardianship proceeding or a Power of Attorney.

A Guardianship is a court proceeding in which an individual asks the court to appoint someone to be responsible for the physical and/or financial care of another (the ward).  Anyone with an interest in the matter must be notified (including the ward), and if people disagree during the proceeding, it can get ugly.  It is easy to imagine the fight a ward could give should he feel he did not need a guardian.  Of course, this is often why the proceeding is necessary.  A Guardian can be needed even when the ward does not think it necessary.  The downside of the proceeding is the ward's lack of choice as the guardian is appointed by a third party (the Court).  What if the ward wanted a different guardian?  Would the guardian know how to handle the wards finances or health care decisions?  The Court appoints the guardian and may or may not take the ward's opinions into account.

Unlike a Guardianship, a POA is a way to assist with decision making without depriving that person of his ability to choose.  In Indiana, the POA statute lists roughly twenty (20) broad powers an individual (the principal) can assign to someone else (the attorney-in-fact) to act on their behalf.  Powers included are the right to deal with banks and insurance companies, conduct business transactions, buy and sell real estate, make gifts, buy and sell stocks, and make health care decisions.  While these are the same types of powers a guardian has at his disposal, the difference is control.  In the POA, the principal chooses the attorney-in-fact, which gives the principal the ability to prospectively discuss his wishes with the attorney-in-fact.  Before writing a POA, a person should speak with his lawyer about possible consequences because the broad powers granted under the statute open the door to the possibility of abuse by the attorney-in-fact.  It is important for the principal to understand when the POA comes into affect, and the powers he is giving the attorney-in-fact. 

Obviously, these issues are far more complex than as presented in this article.  This was not written to provide specific legal advice or form an attorney-client relationship, so if you have questions about your situation, you should retain a licensed attorney of your choosing.

Matthew S. Lewis, attorney with J.D. Walls and Associates, P.C. in Carmel, Indiana
mslewis@jdwalls.com
http://www.jdwalls.com