Bill giving guardians authority over final dispositions gets House support after Senate debate

A bill to extend the duties of guardians when an incapacitated adult dies was much better received in an Indiana House committee Tuesday than when the bill was introduced in the Senate.

Senate Bill 276 received unanimous support from the House Judiciary Committee during a Tuesday hearing, passing with a 9-0 vote. In contrast, the Senate Judiciary Committee narrowly advanced the bill on a 6-5 vote.

The difference likely comes from the substantial amendments to the bill, authored by Sen. Tim Lanane, D-Anderson.

Indiana law currently provides that most of an adult guardian’s duties terminate at the time a ward dies. The version of the bill introduced in the House on Tuesday would extend guardians’ duties to allow them to make decisions about a ward’s final disposition if no family members or powers of attorney are available to make those decisions.

However, the bill as introduced in the Senate would have given guardians decision-making priority over powers of attorney and family members of an incapacitated adult, including surviving spouses. That priority arrangement caused consternation on both sides of the aisle, with Senate lawmakers saying it was inappropriate for a non-family guardian to take precedent over a ward’s relatives.

What’s more, Sen Aaron Freeman, R-Indianapolis, said the bill constituted a “fundamental” change to guardianship law in that guardianships are generally presumed to terminate at the time of a ward’s death.

Practicing guardians, however, said those concerns were misplaced.

In most situations where a court determines a guardian is needed, there are no family members or others who could care for the incapacitated adult or serve as power of attorney, supporters of the bill argued. And usually, guardians will have worked with their wards before death to make decisions about the dispositions of their bodies, anatomical gifts and other such considerations.

Lanane ultimately agreed to amend his bill to move guardians lower on the statutory priority list, found in Chapters 23 and 29 of the Indiana Code.

Taking the amended bill – which passed the full Senate 46-3 – to the House Judiciary Committee, Lanane had the support of the Indiana Association of Area Agencies on Aging, the WINGS Adult Guardianship State Task Force and the AARP. Also, Anne Poindexter, a practicing guardian and lawyer with Altman, Poindexter and Wyatt LLC in Carmel, testified in favor of the bill during Tuesday’s House committee hearing.

“In my mind, it is nonsensical for the guardians who have been intimately involved in day-to-day matters, legal matters, daily decision-making, financial matters, health care matters, tending to clients that they have been dealing with based on a court appointment, for their powers to suddenly end” when a ward dies, Poindexter said.

“It also does not make practical sense,” Poindexter continued. “If you think about it, they (guardians) have been appointed either because no one else was available, or … because maybe they have family members but there has been a judicial determination that it is not appropriate for the family members to serve in that role because they cannot cooperate or for other reasons.”

SB 276 will now advance to the full House, where it could face additional amendments and a final vote.

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