A guardian’s authority comes in the form of a single page called the “Letters of Guardianship.” This lone document gives the guardian all the authority he or she needs in order to carry out his or her duties as guardian. But does it really? Anyone who has done any amount of guardianship work knows that banks and other financial institutions have their own laws that must be followed in order to gain access to an incapacitated adults’ financial information.
Today’s example, class: Certain banks want something more than the Letters of Guardianship to serve as evidence of the guardian’s powers. They want the order appointing the guardian. And maybe they want a copy of that order that’s been “certified” within the past thirty days. Orders of appointment can sometimes go into details about the finances and the medical status of the protected person (ward). Well then, why not a copy of the petition for guardianship too, and maybe the medical evidence to support the petition?
(Breathe in…breathe out…breathe in…breath out…)
You see, here’s the idea with Letters of Guardianship: The court issues an order appointing you guardian, but on the condition that you sign an oath before the Clerk and, if required, you post a surety bond. Then, and only then, can the Clerk issue Letters. See Indiana Code § 29-3-7-3.
If the court order has placed any limitations on the guardian’s powers, those limitations must be endorsed on the Letters of Guardianship. See Indiana Code §§ 29-3-7-3(c) and 29-3-8-8(b).
The Letters are the legal evidence of a guardian’s powers – not the order of appointment itself. “Letters are evidence that the guardian has all, and the protected person does not have any, rights to possess and dispose of the guardianship property.” Indiana Code § 29-3-7-6(a).
Third parties are protected from liability when dealing in good faith with a guardian, and such third parties (that means you, banks) are “not required to inquire into the existence of the power or the propriety of its exercise except as to restrictions endorsed on the letters.” Indiana Code § 29-3-11-1(a)(2).
So, what to do when a bank asks for the court order when clearly all they need are the Letters?
Some of my colleagues, whom I respect tremendously, simply give in to the corporate bureaucrats and staple a copy of the Order to the Letters of Guardianship. I say give them a copy of the order if they ask for it. But make them ask for it, and in the process try to educate them on why what they’re asking for is unnecessary and perhaps, in some cases, an unwelcome intrusion into matters that are frankly none of their business.
What if you provide the Letters and the Order and the bank still won’t give you the information you need?
You can send a demand letter to the bank under Indiana Code § 29-3-9-12. If the bank doesn’t cooperate after 30 days, you can bring an action in the guardianship court to force them to comply. You can even make the bank pay your attorneys’ fees!
So, while this can be a long and frustrating process, it usually works out in the end (banks usually comply with a court order demanding that they do so!). My biggest tip: always send a letter to the bank right away. Either mail it or hand deliver it when you meet with a banker for the first time. Then, if the bank doesn’t cooperate with you, your thirty-day clock is already ticking.
Recent Comments