If Hoosiers want to see a world class guardianship system for our state – one that respects the legal rights of incapacitated persons, not to mention other family members; one that makes quality guardianship services available to those that need it; and one that has suitable accountability measures to help ensure public confidence in the system – then we have to get serious about guardianships. There’s many things we could do. Some things will not cost a dime, but realistically, most of it will cost money.
Would it be worth it? I think so. But it won’t come easy. Where do we start? Again, the three-legged stool of a quality guardianship system includes access, quality, and accountability. Below I outline just some recommendations for change, but any suggestions from other players should be considered within the structure of a “guardianship system.” Addressing the needs in one of the three areas alone will not work, as changes in one will affect the others or be meaningless in the absence of changes to the others.
1. Improve Access to Advance Directives.
Advance directives, such as Health Care Declarations and Powers of Attorney, can avoid the need for guardianship. They are capable of revocation while someone retains the capacity to do so. They are voluntary and are believed to be the best means of reflecting our own wishes regarding who should make decisions for us, should we be unable to do so.
Standard forms of these advance directives are readily found online. However, such forms may or may not be adequate to the particular situation.
(Improved access to advance directives should come with the caution that they are subject to misuse, without oversight. See below.)
2. Expand Pro Bono Attorney Programs.
Under Indiana law if a guardianship is established, then the Court may approve the payment of attorney fees from the assets of the protected person.[1] This is reasonable. But what if the protected person has insufficient assets to pay the costs of an attorney? In such instances attorneys seek such fees from the family member or friend who hired them in the first place.
Many well-meaning families simply can’t afford the attorney’s fee in such instances, therefore a needed guardianship is often not established and the incapacitated person’s needs are inadequately met. To address this problem there exist some pro bono programs where attorneys provide the necessary legal representation at no cost. Expanding such programs will improve access to guardianships.
3. Create Court-Sponsored Self-Help Legal Tools.
An attorney may not be necessary in many instances, particularly in the more routine, uncontested proceedings if the courts able to offer self-help legal tools for the unrepresented petitioner. (By routine I mean those instances where (1) the need for guardianship is fairly self-evident, such as in the case of an incapacitated person who suffers from a progressive cognitive disease like Alzheimer’s disease; and (2) the person most willing and suitable to serve is obvious, such as an adult child.)
With court-prescribed forms and clear instructions for pro se petitioners, many guardianships could be established without an attorney. In Indiana, the courts are accustomed to thinking of two types of guardianship – a “guardianship of the person” and a “guardianship of the estate.” While these terms are not defined under our law, the terms are ubiquitous and carry a generally-accepted meaning.[2]
With a “guardianship of the estate” the law requires the filing of an inventory and biennial accountings. Moreover, some transactions involving the sale of the protected person’s assets, the establishment of estate planning tools to distribute assets upon the death of the protected person, and other financial matters requires court approval. Because of the greater complexities (from the court’s point of view) to the guardianship of the estate, the courts expect the guardian to be represented by an attorney. Indeed, some courts require the guardian to have an attorney in such instances. If there is a “guardianship of the estate,” then that means there are assets. If there are assets, there’s monies available pay for an attorney.
But a large number of guardianships in Indiana are just “guardianships of the person” only. There is still a regular reporting requirement for “guardians of the person.”[3] However, many courts already have prescribed forms for these types of reports.[4] In these types of guardianship an attorney is really not necessary.
4. Promote Professional Guardians.
There are a number of professional guardians in Indiana already, but more are needed. Professional guardians could certainly help meet the need for access to guardianships in instances where the alleged incapacitated person does not have family suitable or willing to serve in the guardianship role.
Promoting the growth in the number of professional guardians requires adequate means of reasonable compensation for their services. If the protected person has sufficient assets, then the fee of the professional guardian can be paid from those funds with court approval, of course. But there are also ways of funding professional guardians even for those protected persons without assets. Such individuals are likely to be receiving some form of income, either from Supplemental Security Income (SSI) or from Social Security. When a protected person is on Medicaid and in an institution, there exists provisions to allow for payment to a guardian from their income.[5] However, the amount allowed is only $35 per month, which is paltry and wholly inadequate. Moreover, this “income set-off” is allowed only for Medicaid recipients that are institutionalized, such as a resident in a nursing home.
In 2017, a bill was introduced in the Indiana legislature that would have increased this $35 per month figure to $175 per month, and would make it applicable to Medicaid recipients in the community setting.[6] The bill was not enacted into law, but it had wide bipartisan support and is expected to return in future legislative sessions. While perhaps still not sufficient, the $175 per month income set-off is the maximum amount allowed under federal law, and in sufficient numbers it could sustain a professional guardian.[7] In turn, this would encourage the growth of the professional guardian market.
5. Increase Funding for VASIA Programs and Other Non-Profit Agencies.
Funding for Indiana VASIA programs is relatively new, only a few years old. When legislation first passed to provide such funding back in 2013 only $500,000 annually was allocated. From these funds, about $150,000 was used to establish, and cover the overhead, of the Indiana Supreme Court Adult Guardianship Office. Funding levels have since increased, but the overall funding is insufficient to completely meet the need for access to guardianship services.
Because of the public policy intentions behind the creation of the VASIA statute and the funding of the VASIA programs – namely, to promote volunteer guardianship programs, in lieu of direct state provision of public guardianship services and in lieu of further per capita funding to existing non-profit agencies providing guardianship services – the most recent increases in funding to VASIA programs have apparently been focused on promoting the creation of new VASIA programs, rather than increasing the funding to existing VASIA programs. The goal is to have VASIA programs covering all counties in Indiana. In 2021 there are 20 VASIA programs covering 50 of Indiana’s 92 counties.
Grants made from the Indiana Supreme Court Adult Guardianship Office to VASIA programs are not weighted according to demographics of the populations being served. The grant amounts are the same for all eligible programs. Moreover, the VASIA grants explicitly require matching funds from the counties being served. In other words, the intent of the funding is not to sustain the full costs of the programs, but rather to provide some basic minimum funding.
As Indiana focused on the development of VASIA programs, it halted the funding that had been provided to a number of existing non-profit agencies that had been providing staff-driven guardianship services, such as Families First Indiana, Inc. and Mental Health America of Greater Indianapolis. While funding continues for existing guardianships being managed by those programs, monies for new guardianships have ended.
Increasing the level of funding support for VASIA programs, and restoring funding mechanisms for non-profit agencies capable of providing guardianship services (particularly in those counties without VASIA programs) would of course increase access to guardianship services for those incapacitated adults without suitable or willing family members to step into the guardianship role. Even the increase in the Medicaid income setoff as discussed above would greatly enable the ability of both VASIA programs, as well as other non-profit agencies, to make guardianship services available.
Conclusion
These suggestions represent just a few possibilities for increasing access to guardianship services in Indiana. Next month I will discuss improving the quality of guardianships in Indiana.
[1] Ind. Code § 29-3-9-9.
[2] Typically, when the term “guardian of the person” is used it means that the guardian has the powers enumerated under I.C. § 29-3-8-2(a), Subsections (2), (3) and (4). When the term “guardian of the estate” is used it means that the guardian has the powers enumerated under I.C. § 29-3-8-4, Subsections (1) through (8).
[3] I.C. § 29-3-8-1.
[4] For example, see Marion County Probate Form 412.0. Instructions to Guardian of the Person with Sample Annual Report .
[5] The Indiana Health Coverage Program Policy Manual (IHCPPM), Section 3455.15.10 provides that “Court ordered guardianship fees paid to the applicant’s/recipient’s legal guardian, not to exceed $35 per month, are to be deducted. Guardianship fees include all services and expenses required to perform the duties of a guardian. Within this context, attorney fees would be included as a guardianship fee.”
[6] The bill was S.B. 396 http://iga.in.gov/legislative/2017/bills/senate/396.
[7] There are no formal ratios for professional guardian case loads, however a 30:1 ratio is widely thought of as reasonable. With 30 clients, all of whom were on Medicaid with a court-approved guardian’s fee (and Medicaid income set-off) of $175, a professional guardian could earn up to $5,250 per month. This would be a gross amount; the guardian would still have costs, such as mileage, that would have to be covered by the $175 per month figure, but still support a professional guardianship practice.
[8] http://www.in.gov/judiciary/files/budget-presentation-01.11.17.pdf
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