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Prior Estrangement Not Controlling Factor in Guardianship Case

Posted by Thomas Asbury | May 04, 2023 | 0 Comments

How might a parent's earlier alienation from their kid impact the outcome of a guardianship case? Recently, this matter was contested in an Indiana slip opinion.
Randy, Terri, and Sherry were the three children of Peggy, an Indiana citizen who was 90 years old. Sherry resides in Florida, while Randy and Terri are both from Indiana. After Peggy's husband passed away in 2002, her relationship with Terri deteriorated. Peggy signed a financial power of attorney in 2003, designating Sherry as her replacement agent and Randy as her primary agent.

Peggy needed somewhere to stay while her house was being renovated after it was destroyed in the beginning of 2020. Peggy spent some time living with a neighbor since she did not want to relocate to Florida. Terri started to mend her mother's connection during this period. After the house was fixed, Terri moved in with Peggy and took care of her because she was starting to show signs of dementia and the kids didn't feel comfortable with her living alone.

Peggy eventually relocated to a facility for assisted living close to Sherry's house in Florida. Terri visited Peggy, but Terri wasn't pleased with the care she was getting there and didn't believe Peggy was content there. Sherry concurred that her mother wasn't in the ideal environment at the institution. Terri and Peggy's relationship began to deteriorate after Peggy moved in with her.

Terri filed a lawsuit, asking for Peggy's former power of attorney to be revoked as well as guardianship over her mother. The court determined that Sherry had committed a number of financial crimes, including misusing Peggy's money, and failing to pay rent while Sherry's daughter was renting Peggy's house. Terri was chosen as the guardian after the trial court determined that Sherry was not a suitable candidate. Moreover, Peggy's financial power of attorney was revoked by the court.

Sherry challenged the judgment. She understood that she might not be the best guardian, but Terri wasn't the person she wanted in that position. Sherry asserted that Terri and her mother should have a different guardian because they have been apart for a long time.

The judge disagreed, observing that Terri had just patched up her connection with her mother and had been taking care of her in her own home and at doctor's visits while acting in her mother's best interests. Terri wasn't chosen by "default," as Sherry claimed, the judge noted. No, the court decided Terri would be the best guardian for Peggy after following a procedure that adhered to the law's requirements. The fact that Terri and Peggy had been apart for some time was irrelevant.

As our country becomes older, elder law will become an increasingly important area of legal planning. When your customers inquire about benefits that will help them pay for the care they require, being knowledgeable about the fundamentals of elder law will enable you to have informed conversations with them.

About the Author

Thomas Asbury

Mr. Asbury is a graduate of the Wharton School of Business at the University of Pennsylvania. Before attending law school, Tom worked in the Internet sector as the Webmaster for the NFL’s Jacksonville Jaguars. While in law school, he published a law review article entitled Alternative Sentencing Theory, 3 Fla. Coastal L. J. 41 (2001), which identifies a constitutional framework within which defendants charged with alcohol and drug-related crimes can be remanded to faith-based programs rather than prison for non-violent offences. The logic is quite simple—as sobriety becomes the norm and addictions subside, so too do the often-accompanying crimes. His professional experience includes estate planning, corporate law, compliance law, guardianships, trademarks, probate, trust and probate litigation, including trust and will contests, administrative law, and consulting for business entities. Mr. Asbury has also lectured for NBI Seminars in the areas of Probate, Wills, Trusts, and Estates. Tom has also served on the Penn Admissions Committee for years as an alumni interviewer and is an international lecturer on the focus and philosophy of Ivy League admissions.


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