Saturday, July 30, 2016

Indiana: Power of Attorney May Trump Guardianship Order

An elaborate court ruling that sought to bring family harmony by appointing each of six siblings as co-guardians over a specific area of their elderly mother’s life may have hit a sour note because of a 12-year-old power of attorney which remains valid.

The adult children of Helen Kinney Morris, 89, divided into factions over disagreements about her need for care. Two of the children contended that despite having dementia, Morris was not incapacitated while the other four asserted her memory problems were getting worse and putting her in danger.

In 2015, the Howard Superior Court found Morris was incapacitated because she could not take care of herself or her property without assistance. Putting the woman’s best interests and welfare at the front as well as attempting to repair the family dynamic, the court appointed all the children as guardians but gave each specific duties.

Two of the children, Mary “Molly” M. Kinney and Patrick Kinney, declined to be appointed and later appealed the ruling on the grounds that the guardians are unnecessary because there is a valid power of attorney.

The Indiana Court of Appeals reversed and remanded in In re the Guardianship of Hellen Kinney Morris: Mary M. Kinney and Patrick Kinney v. Paul Kevin Kinney, 34A02-1510-GU-1809.

Under Indiana Code 29-3-5, the court has the ability to appoint guardians. However, I.C. 30-5-3-4 limits a guardian’s power. The Court of Appeals found a durable power of attorney that Morris executed in 2004, which gave Mary Kinney and Paul Kevin Kinney broad powers, was still valid.

Full Article and Source:
Power of Attorney May Trump Guardianship Order

See Also:
NASGA:  Power of Attorney


StandUp said...

Fantastic! This ruling is something we can work with to help protect our loved ones when courts roll over Poa's. Thank you NASGA!

Anonymous said...

This will not work in all cases such as ours. My mom was coerced into providing my brother POA. Six days later she is in another state, being physically and chemically restrained because she told the doctors she didn't want to be in Florida, she wanted to be in Indiana where she had been for fifteen years. My brother exercised undue influence over both my parents so he could get their assets. That is evidence by the 325k cash he spent on a house for himself. He did not have that much money - and the court did order him to repay. A little late as dad is dead - suspicious to us - and mom is under guardianship so he and his family can't drug her any more.

Sharon said...

Any published case law of POA trumping guardianship is good.

Kathy said...