`

Power of attorney may trump guardianship order

July 12, 2016

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.

“… it does not appear that the trial court considered the effect of the power of attorney when it determined that guardians were necessary,” Chief Judge Nancy Vaidik wrote. “Accordingly, we reverse and remand this case for the trial court to determine whether any guardians are necessary in light of the 2004 power of attorney and, if so, to give due consideration to the matters listed in Section 29-3-5-5, including (Morris’s) wishes and her existing attorneys in fact (Molly and Kevin).”

ADVERTISEMENT

Recent Articles by Marilyn Odendahl