good evening.

I'm Sandy Thomson, the host of Life Ahead right here on PBS for a weight and I'm glad you're with us tonight because we have an extremely interesting topic that many of you might find a need for in terms of determining the information that we have are going to be talking about guardianships tonight and there are a lot of different things involved with guardianships.

We're going to talk about the difference between a power of attorney and a guardianship where you can get some low cost legal help and we're going to be talking about all of the parameters in between in terms of family guardianship.

So stay tuned with us right here for the next half hour.

>> And if you have questions, please give us a call.

This is your show and we want to answer the questions that you have.

The phone number is (969) 27 twenty and if you're not in the Fort Wayne area immediately, just put a one 866 in front of that and it will be toll free for you.

>> Let me introduce the guest this evening.

You've met before on LIFE Ahead here at the far end of our show for tonight we have Troy Kiffer, elder law attorney.

>> Is that your specialty, Troy?

Well, it's an area I practice in primarily, yes.

>> Oh, OK. All right.

But other questions certainly would be applicable for Troy tonight as well.

You saw him a couple of months ago when we were in the middle of covid and you were in a little box up here on the screen.

But I'm so glad tonight that we can have a guest now live in our studio and I would like to welcome a first time guest here, Marijan Roache with us this evening.

Nice that you're here and I know that you're a paralegal but you specialize in volunteer lawyer program.

>> I'm with the volunteer lawyer program.

I'm their guardianship coordinator.

>> OK, so we're going to talk about that maybe in terms of an abbreviation be l.p be helping the L.P so keep that in mind and and Marijan deals with this all the time so she can help us out with questions in that area.

Let's first just talk about definitions to define guardianships.

>> Right well a guardianship is a legal process by which someone who for various reasons can't take care of their own affairs.

Sure.

So maybe they have some mental problems.

Maybe they're they're mentally incapacitated and just aren't able to do the day to day things that need to be done in order to provide for themselves.

>> Is there an age limit on that or are we talking children or adults or who can be a have a guardianship?

>> Right.

If you're a minor or a child then parents generally have the legal authority to do what's in that child's best interest and that applies to children who have special needs as well as children who just haven't turned 18 yet.

>> I say OK, I think that my next question I have I'm going to send to you Maryanne because we talked about this a little bit earlier and I know that you get phone calls a lot with people wanting to know what's the difference between a power of attorney and a guardian ship ?

>> Is there a difference and what is that?

Yes.

And and I want to make sure that I say this first and so I am not an attorney.

I can not give legal advice but I can define the differences between power of attorney and a guardianship.

>> I'll jump in.

Yeah, absolutely.

Absolutely.

He'll say he'll do the legal.

>> That's right.

A guardianship is appointed by a court so you need to file a petition with the court and you need to present your case to the court and then the court will issue a court order if they find that the person is actually incompetent and meets the legal definition of incompetency.

>> Do you have to prove that to the judge that this person that you need a guardian for is incapacitated?

Absolutely.

And that's done through a physician's report.

Oh, OK. OK, OK.

So a power of attorney is something that a competent person can decide.

I want someone else to help me make decisions is not going to remove my rights like a guardianship does but I need help making some decisions and I'm going to appoint someone to do that for me those generally are not handled through the court.

>> Isn't that occurring?

You would know this I think from talking to some other attorneys we've add here that this is often a part of the will naming the power of attorney correct?

Well, it's part of an overall estate plan, OK?

Most people when they come and see an attorney they're looking for a will but in my opinion a power of attorney is just as important maybe more important than a will will just deals with stuff stuff worldly possessions right where a power of attorney directly affects a person's quality of life while they're alive.

>> OK, all right.

So am I correct in assuming that in addition to naming a power of attorney naming health care representative would be the other main thing that you do and this can be done separately?

Doesn't anything to do with the will you could just what do you do?

>> You need an attorney to do these things you don't technically need an attorney but like a lot of things in life , it's good to talk to an expert because make sure your ducks are all in a row.

Right.

The thing about these documents is you only get one shot at it when you need it.

It's too late to change it.

So you want to make sure force tested that it's correct and then it will operate correctly.

>> Does the judge have to approve that too?

No.

A power of attorney is voluntary and any competent adult can appoint someone as their attorney in fact or health care representative and that's voluntary.

OK, they have to sign with witnesses and in a notary whereas a guardianship you don't have the person giving that permission so the court has to give them due process and make sure that there are proper notices given there's a hearing and that they're given the opportunity to present evidence to the court that that they do or don't need a full guardianship.

>> OK, all right.

Mary, I think when we were also talking to you said it would take two attorneys and yes, Plus the judge's decision.

>> Correct.

How does that work?

So two attorneys are required here in L.A. County and we do follow the state statute that that does require this.

So two attorneys are required one attorney to represent the petitioner, the person who wishes to serve as the guardian .

The second attorney acts as the guardian ad litem and the role of the guardian ad litem is to represent the interests of the person for whom the guardianship is being sought.

And that guardian ad litem is basically trying to determine does this person meet the legal definition of incompetency based on that physicians or do they need a guardian?

Not every diagnosis needs a guardian.

And is the petitioner the most suitable person to be that guardian?

So that's the role of the guardian ad litem.

They represent the ward's interests.

Is this really going to be in the best interest of this person and then that information is presented testimony at the hearing and the court weighs that testimony and the physicians report then to make its decision on whether or not to appoint a guardianship.

>> Is there a difference between or do you need both a guardian and a godparent?

Let's say we're talking about a younger person and you're naming a guardian for them just a godparent do the same thing or does that not have any legal opportunity?

Yeah, a godparent to my knowledge does not have any legal standing.

OK, it's more of a social or a relationship.

Yeah, that's special but it's not something that the law would particularly recognize.

>> All right.

So they can they couldn't make any financial decisions or anything for this person.

I mean am I am I correct in thinking the God parent would be more like as you said leading that child or socially, morally, maybe spiritually whatever and guiding them in that way?

>> Yes, yes, yes.

It could be that a parent in their will can nominate someone to serve as their child's guardian pass away and that I imagine would often be a godparent OK until that child is over the age of 18 OK. >> Are there alternatives to a guardianship if someone for some reason doesn't want to get involved in a guardianship, is there an alternative?

There are a couple of alternatives we already mentioned one and that's the power of attorney.

Sure.

And the catch usually with that one is the person needs to be able to make legal decisions to begin with and the idea is you have the power of attorney and then down the road if you need it it's there to help you.

Not everyone has that the state of Indiana has done a very good job of encouraging alternative means less restrictive means than a full guardianship.

Sure.

So types of agreements with the person that needs some help if they have just enough capacity in order to themselves have input but not have full input.

So it's a bit of a half step and the court really does a good job of reviewing those less restrictive alternatives because if we don't need a full guardianship maybe the person just needs a little help.

>> We only want to provide them the level of help that that they really need and that makes sense.

I mean they're going to be many, many different levels of need.

>> As you mentioned, some people that might need full help in in structuring their lives and others maybe just a couple of things.

>> Go ahead.

Well, I was going to say that the difference between those two instruments is that with a power of attorney or a structured decision document is that person can revoke it as well.

>> And the person who is getting the Guardian over them, not the guardianship say I sign a power of attorney and I want my attorney OK, I can revoke that at any time, OK?

And just tear it up with a guardianship if Troy is my guardian only a court can remove him as the guardian.

>> So then if if you go through the guardianship process would and that's all approved through the court the judge that two lawyers whatever how long does that last?

>> I mean is this person going to be your guardianship forever or until you or somebody decides not Troy it lasts indefinitely.

OK, so the guardianship will just continue on.

There are some requirements that a guardian has reporting to the court for instance.

But until the court revokes it or the Guardian passes away themselves, then then it continues on.

>> Now the difference there is that when you're obtaining guardianship over a minor child say parents are unable for whatever reason to continue to take care of their child and a grandparent steps in and maybe the child is ten years old and that guardianship then will stay in place until a couple of things.

Either the parent revokes it files or petition to terminate it or the child reaches maturity at eighteen at the age of 18 and then that guardianship is is done and that person is an adult.

>> Then they're making their own decisions.

Got it.

We have a phone call I want to share with you here.

Duane called in and this is his question.

He said that is there such a thing as a temporary guardianship I may be called to active duty and I'm wondering if someone can take my place on a temporary basis.

That's a good question because I imagine that happens a lot where somebody just needs somebody for a while whatever reason.

>> Troy, this sounds like a legal question for you.

Yes.

And there is a lot wrapped up into that and I would have certainly some follow up questions and to see exactly what type of duties or activities Dwayne would want covered .

But instead of a guardianship that sounds more like a job for a power of attorney and you can do that on a temporary basis, correct?

>> Yes.

OK, yeah.

Once again experience that can be revoked.

>> Yeah.

So when he comes off of active duty, whoever he would have appointed to be the Guardian or the attorney or any other I'm assuming his child they would just say I'm back and this arrangement is done and we're done.

>> What does he have to do this legally or just to just handle but if he is if he is talking about a child and he's wanting to have someone take care of that child while he's gone and he signed a power of attorney, I would give that document to the child's doctor ,the child's school so that they know that this is the person who is answering questions about this child right now.

>> Yeah, for right now I know there is I just want to say and there is such a thing as a temporary guardianship they're only good for ninety days.

>> Oh, OK. OK, one of your colleagues Jessica Dawson I think was talking once about when they and they she and her husband have several children and when they go on vacation perhaps for maybe a couple of weeks or out of the country or whatever she draws up a power of attorney to protect her children.

Absolutely.

If anything happens while they're gone and then of course they get back and that's revoked again.

>> Right.

Very good question.

Dwayne, thank you for watching.

All right.

Let's get into some specifics if you will.

Does a disabled child require a guardianship when they turn 18, Troy?

>> Yes.

If you have a child with special needs when they're under the age of 18, of course their parents have the legal authority to make decisions for them medical, financial, et cetera.

But when they turn 18 they're just like everyone else and they are now adults and under the law their parents can no longer make legal decisions for them.

So the parents would need to be appointed their parents or someone else would need to be appointed as guardian in order to continue to be able to make legal decisions for that child with special needs because they can't.

>> Sure, I get that.

How about dementia?

We touched on this just briefly but can you explain that anymore?

Maryanne, if someone has dementia and it's medically diagnosed, are they required to have a guardian not required not necessarily because of guardianship.

>> Does remove a person's rights and of course the court does not do that lightly and that's the need for that physician's report and due process.

Make sure all family members are notified in case there's any opposition sure to appoint to appointing someone as a guardian and a guardianship can be restricted.

The court can always limit a guardianship.

Maybe this person just needs help with their estate or their finances and so the court can limit the Guardian to only have authority over their finances or maybe they just need decisions with health care decisions or help with health care decisions so the court can limit that guardianship and just appoint someone to help with medical decisions for that person who might have Alzheimer's or some dementia.

All right.

That makes sense.

>> I mentioned earlier that one of the things we would be talking about would be something called the LP took me a bit to remember that.

>> But it's an important program.

>> Can you define what the B LP is?

Troyes Yeah.

The Volpi is a volunteer lawyer program and they are a not for profit organization here and Allen County and they provide a lot of services to those people who otherwise could not afford legal help.

And one of the big areas where they do a great job is in guardianships, OK?

And as we talked about if a child reaches the age of 18 they need and they have special needs they need a guardianship or someone who's older and they have dementia they may need guardianship.

Well, what happens if those people those families don't have the the resources to hire an attorney?

Sure.

To help them get that guardianship and that's where Maryann and the volunteer lawyer program comes in.

>> Let's talk about Aunt Maryann.

You know where we're going to move to the area of maybe people that can't afford to pay the two attorneys and legal fees or whatever else to do the entire legal process, the guardianship there is a way to help people at a lower cost option.

>> Can you expand on that so individuals who are seeking information on guardianship can call the office and we'll conduct an intake over the phone.

Our our guidelines our financial guidelines are based on household income.

OK, so we roughly follow the federal poverty guidelines and our services are based on that and we provide services for individuals who are two hundred percent of the federal poverty guideline.

So that roughly translates into a family of four can make roughly fifty three fifty four thousand dollars of household income to qualify for for my program.

>> So if the if the person who needs the guardianship is living in the family home then I'll consider the entire family income.

>> All right.

So if they're a part of that family.

Exactly.

OK, if that person who needs the guardianship might be in a nursing home or in a group home or a wave or home then that person's sole income is considered.

So if they're just receiving SSI or Social Security which is usually less than about a thousand dollars a month, yeah, they will definitely qualify for the program.

>> Just out of curiosity, does Medicaid fit into this at all?

We don't handle any Medicaid questions.

Usually a case manager who's helping the family will help that finally file for Medicaid.

>> All right, Troy Maryanne's talked about you know what the volunteer lawyer program I'm getting so good at that of the help.

I'll be saying that for the next week.

I'm sure she's defined what it is.

Are there any other suggestions of people that might be eligible for this other than just financial or is that basically what the eligibility is?

Yeah, and I'll have Marilyn jump in if she knows some other case you're OK. >> But that's primarily the purpose for it.

Yes, yes.

And folks can file persay meaning they can file without the benefit of an attorney.

It's not easy.

There are forms online I'm told and if they file everything to the best of their ability, if they are deficient in something that they have filed, the court will usually write to them and say, you know, you're missing something in your petition and the court will suggest that they contact the volunteer lawyer program for assistance.

>> And there's one thing I want to point out because I'm not sure it's been explicitly stated that the volunteer lawyer program does a lot of the footwork but the representation that the recipients receive are attorneys absolutely in Fort Wayne .

>> All right.

And it's just a volunteer effort that they're a pro bono situation.

>> Exactly.

That's a we have no attorneys on staff so once they qualify for the program then I will start to recruit local attorneys who will volunteer their services through this program and actually represent these folks.

>> That's great.

So there's opportunity for everybody.

You mentioned that it's a program try we have an Allen County that Allen County exclusively or you know, let's say we have people from Wells or Adams or Huntington County watching would they have an eligibility?

>> We serve the nine northeast Indiana.

All right.

Not just Allen County.

>> OK, so if you're watching you're probably eligible at least from that from that county point of view.

>> OK, all right.

What if someone is accepted into your program then what what are the next steps?

>> What can they expect to happen?

I will send them a questionnaire where I need names and addresses of all family members and so forth.

I send them that physician's report that they will have to take to the doctor of their of the person who needs the guardianship and they send everything back to me.

There's a thirty dollar application fee and that's payable to the volunteer lawyer program and then I'll create a file, I'll open a file and then I call you and then you call the and then you go to work.

>> What are the steps that you do then Troyes if Marianne has asked you to take on one of these pro bono cases?

>> Well, as we mentioned earlier in the show, there are two attorneys involved.

There's the attorney for the petitioner is the attorney for the guardian ad litem or the guardian ad litem.

OK, and so Marianne will ask us to do you want to be guardian ad litem or would you like to serve as the petitioner's attorney and depending on which one we serve as that month will meet with the petitioners, we'll get to know them.

We'll we'll get to understand why the guardianship is necessary and we will Marianne will prepare the petition and the documents and we will review those OK and then oversee their filing with the court and then on hearing they will will be there in the courtroom.

>> Magistrate Halk with the we're a big fan of him.

He's on life had at least once a year.

>> He's fabulous.

He is fabulous and we have all the Volpi cases that month in a morning and we'll just go through all of them all at once and and usually takes about a morning.

>> Yeah.

OK, so these cases can be heard back to back so the court will actually block off an entire morning for the do a number of exactly.

>> Now let's say you get to that point where you have the two attorneys whatever meeting with gentlemanlike for a decision on this.

>> Does the person that's getting the guardianship have to be there, the disabled or yes, Elderly person.

>> Yes.

So so one of the questions on the physician's report is and it's an important question is can this person attend the hearing without injury to their health to their physical health ?

>> OK, so even you know, if if they're fine and they can go out and about the judge will absolutely want to see them in the courtroom because again the court a guardianship is modifying that person's rights and the court wants to make sure that they're making the right decision by actually laying eyes on that person.

And Mr. Houck is very good.

He'll actually ask the person if they understand what's happening and do they have anything to say about it and if the risk of sounding like I'm a trained to say too many good things about Magistrate Halk, he is amazing at involving the protective person.

Yeah.

And he really goes out of his way to involve them in the conversation to hear what they have to say and sometimes as you can imagine they don't all have the ability to express a talk and talk with the judge no matter what he always asks and he always relates to them in some way and that's just such a great thing and it gives you a good feeling if you're involved in whatever way after the hearing that that this is all been handled properly, legally and emotionally.

>> Exactly.

Yes.

Well, I want to thank our guests this evening that certainly you have a lot more information now about guardianships.

Thanks, Hattery Kiffer, thank you so much for coming with us tonight and actually being in the studio and Marianne Roach, thank you so much.

Knowledgeable in your area with the volunteer community center again the L.P. volunteer lawyer lawyer program and it's it's such a wonderful opportunity that we have that available here well for the rest of you, I hope you'll watch us again next Wednesday night right here on PBS for Wayne at seven thirty.

Have a great night.

We'll see later