Senate Bill 276 is
scheduled for second reading in the Indiana Senate on Monday. The
Senate Judiciary Committee on Feb. 3 advanced the legislation — authored
by Sen. Tim Lanane, D-Anderson — on a 6-5 vote.
SB 276 came to the Judiciary Committee from the Probate Code Study
Commission. The commission heard testimony this fall about an issue
guardians say has become more pronounced during COVID: When a ward dies,
guardians’ duties terminate immediately.
According to Rebecca Pryor, a practicing adult guardian and
guardianship advocate, that termination presents a problem in situations
where an incapacitated adult has no other family or representatives to
carry out their final wishes. In those cases, Pryor previously told Indiana Lawyer, guardians
must search for family members who may not have been involved in the
deceased’s life but who would have the legal right to make decisions
regarding final disposition.
To remedy that issue, Lanane’s legislation would amend Chapter 29 of
the Indiana Code to give court-appointed adult guardians high priority
to make decisions regarding the disposition of the body, as well as
funeral and ceremonial arrangements. Specifically, I.C. 29-2-19-7 would
place adult guardians second on the priority list, behind only a person
given authority in a funeral planning declaration or a Department of
Defense form if the decedent died while serving in the Armed Forces.
Under an amendment approved by the committee, additional statutes in
Chapter 29 and Chapter 23 would give guardians second-place priority to
make decisions regarding other issues such as anatomical gifts and
requesting an autopsy.
The Probate Code Study Commission ultimately did not make a
recommendation on the issue, which was brought by Pryor on behalf of the
Working Interdisciplinary Networks of Guardianship Stakeholders — or
WINGS — Indiana Adult Guardianship State Task Force. In addition to
WINGS, the legislation received support in the Judiciary Committee from
the Indiana Funeral Directors Association, Indiana AARP and the Indiana
Association of Area Agencies on Aging, as well as from Anne Poindexter, a
probate lawyer with Altman, Poindexter & Wyatt in Carmel.
Sen. Sue Glick, R-LaGrange, was added as an author on the bill with
Lanane. However, several of her Republican colleagues raised concerns
about SB 276 and ultimately voted against it.
Among them was Sen. Aaron Freeman, the Indianapolis Republican who
chaired the Probate Code Study Commission. He called the legislation a
“fundamental” change to the general premise that an adult guardianship
terminates at the time of a ward’s death.
The most frequent concern raised during both commission hearings and
in committee was the placement of guardians above surviving spouses on
the statutory priority lists. The proposed amendments to the probate
code would place spouses fourth on the list, behind those with powers of
attorney.
Lanane told committee members that if a court has determined a
guardian is necessary, any surviving spouse likely has been determined
to not have the capability to advocate for their spouse’s best
interests. Sen. Lonnie Randolph, however, voted against the legislation
based on that issue.
“I have been married 27 years, and I’m not going to put a guardian
above my wife,” Randolph said during the committee vote. “I cannot see a
mother being second fiddle to a guardian of an unmarried single son.
“I see the objective,” Randolph continued, “but at this point I can’t support this.”
Freeman and Sen. Mike Young, also an Indianapolis Republican, both
raised a related issue: the role of out-of-state family in making final
decisions in cases where a guardian has been appointed.
Young presented two scenarios: first, a guardian choosing to spend an
excessive amount of money on a funeral, and second, a guardian going
against a ward’s religious or personal beliefs on issues such as organ
donation. If either of those situations were present, what redress would
family members have?
Pryor sought to assuage those concerns by telling Young that
generally, if a guardian is appointed and family members have a
relationship with the ward, the guardian will work with both the ward
and the family on end-of-life decisions. That would include the
pre-planning of funeral arrangements and making decisions on issues such
as whether the ward wishes to be an organ donor.
Young, however, ultimately did not support SB 276 in committee.
“I think most of them, if they’re good guardians, will try to work
these issues out ahead of time,” he said. “But they’re not required to
be worked out ahead of time, and I don’t know if I have standing” to
challenge the guardian’s decisions as a family member.
In a similar vein, Freeman presented a scenario from his own
experience: his grandparents recently died, and while he was not their
guardian, he is now serving as the executor of their affairs in Ohio.
Under SB 276, Freeman said, his voice in final decision-making would be
behind that of a guardian, if one had been appointed for his
grandparents.
“You’re not going to get me to sign up for that,” he said.
The Probate, Trust & Real Property Section of the Indiana State
Bar Association, represented by Indianapolis probate lawyer Jeff Dible,
took a neutral position on SB 276. Dible, counsel at Frost Brown Todd in
Indianapolis, said the bar had “technical” concerns about the
legislation.
Specifically, Dible raised the issue of SB 276 conflicting with
statutes governing health care powers of attorney. It’s not
controversial to add guardians to the priority list, he said, but
reasonable minds differ over whether guardians should be above POAs on
those lists. SB 276 would place POAs third on the list, behind
guardians.
Other statutes concerning POAs specifically provide that in
situations where both a POA and a guardian are in place, the guardian
cannot perform any task under the authority of the attorney in fact
without a court order, Dible said. Thus, amending the statutes at issue
in SB 276 to give guardianships priority over POAs could create
inconsistencies, he said.
The leading case dealing with that issue, Dible said, is Guardianship of Morris, 56 N.E.3rd 719 (Ind. Ct. App. 2016).
Dible also noted that House Bill 1252
addresses the same statute as SB 276, so he cautioned the General
Assembly against writing each bill in such a way that would create a
conflict. Similarly, Sen. Liz Brown, the Fort Wayne Republican who
chairs the Judiciary Committee, noted that SB 276 would need to be
harmonized with Senate Bill 204, which deals with health care advance directives.
Some Republicans on the committee urged Brown to hold the bill for
additional committee amendment, while Lanane offered to amend his bill
on the Senate floor. Brown ultimately called for a vote, telling
committee members that she was confident Lanane would keep his word to
continue working on the bill. Glick, too, told committee members who
opposed the measure that they were “overthinking” its impact.
Those opposing SB 276 in committee were Randolph, Young, Freeman and
Republican Sens. Eric Koch of Bedford and Mike Gaskill of Pendleton.
The Feb. 3 committee hearing can be viewed online.
