Anyone who is competent to serve as guardian and/or conservator can petition the court to serve in such a role, but there are priority appointments that the court will consider.
Designation by Ward
The number one priority will be to the person that the incapacitated person has designated or prefers. Usually, this wish will have already been made known through a durable power of attorney, will, trust, or a combination of such documents.
If the ward did not previously designate a guardian and the person is incapable of making their wishes known, then the court will have to decide who should care for grandma. Anyone who is not disqualified may serve as the guardian and/or conservator.
What disqualifies a person? Any purposed guardian/conservator will have to pay for and submit to a background check. Any convicted felon, anyone who provides a residence for a convicted felon, or anyone whose residence a convicted felon frequents will not be eligible to be guardian/conservator for the ward. Only under certain circumstances will the court allow such an appointment when it is in the best interest of the ward.
Determination by Court
How then will the Court decide? If the ward didn’t make their wishes known, the petitioner is not a felon and does not live with a felon, after the previously mentioned priorities, the Court has a priority list established by I.C. § 15-5-311(3) as follows:
- The spouse
- An Adult child
- A parent or legal guardian – this usually applies to someone younger that is physically or mentally incapacitated and requires permanent care.
- Any relative with whom the incapacitated person has resided with for more than six (6) months.
Though keep in mind that the Court has the authority to consider other options if it is in the best interests of the ward.
Other Guardianship Options
There are other ways to handle the guardianship and conseravatorship of a loved one that may be less stressful. It is also possible to hire a professional guardian/conservator to care for grandma and her financial needs. It is also important to note that the roles of guardian and conservator can be occupied by two different people or two people can share the roles and work together. Sometimes this is a desired arrangement when a family feels that one person may be overwhelmed or there are doubts that they would provide sufficient care for grandma’s personal and financial needs but may be best suited for one role or the other. Having two people rather than one is a great way to create another layer of checks and balances for peace of mind.
Let’s not overlook the fact that putting grandma’s care in the hands of one person can be a monumental task. All families should consider the importance of everyone pitching in and at the very least spending time with grandma and allowing her caretaker to take a break. Just because Aunt Sally agreed to be grandma’s guardian doesn’t mean she should be sentenced to no life while the family is still blessed to have grandma around. Take care of Aunt Sally too.