Vaidik, C.J.
Case Summary
After six siblings disagreed about how to take care of their elderly mother with dementia, one faction of siblings filed a petition to appoint guardians for their mother while the other faction maintained that a power of attorney in effect was sufficient to care for their mother. The trial court found that the mother is incapacitated and appointed all six siblings as co-guardians over different areas of their mother’s life. The losing siblings now appeal, arguing that their mother is not incapacitated and that guardians are not necessary.
The record supports the trial court’s finding that the mother is incapacitated because there is evidence that she requires assistance to manage her property and provide self-care due to dementia and that she is unable to do either one without substantial around-the-clock help. However, because the mother’s attorneys in fact are different than her guardians, according to Indiana Code section 30-5-3-4(b) the attorneys in fact are in control, and the guardians do not have any power with respect to their mother’s property and health care. But because it does not appear that the trial court considered the effect of the power of attorney when it determined that guardians were necessary, we reverse and remand this case for the trial court to determine whether guardians are necessary in light of the power of attorney and, if so, to give due consideration to the matters listed in Indiana Code section 29-3-5-5, including the mother’s wishes and her existing attorneys in fact. We therefore affirm in part and reverse and remand in part.
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Here, the record shows that in 2004, Helen executed a durable power of attorney appointing Molly and Kevin as her attorneys in fact. This 2004 power of attorney, which gives Molly and Kevin broad powers with respect to Helen’s property and health care, is valid. [Footnote omitted.] As a result, because Helen’s attorneys in fact (Molly and Kevin) are different than her guardians (Michael, Bridget, Kevin, and Gabrielle), according to Section 30-5-3-4(b) the attorneys in fact are in control, and the guardians do not have any power with respect to Helen’s property and health care. However, it does not appear that the trial court considered the effect of the power of attorney when it determined that guardians were necessary. For example, the trial court’s order appointing the six siblings as co-guardians does not revoke or amend the 2004 power of attorney, and the trial court appointed Bridget guardian over Helen’s health care when the 2004 power of attorney gives that authority to Molly and Kevin and appointed Patrick co-guardian over Helen’s business affairs when the 2004 power of attorney also gives that authority to Molly and Kevin. 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 Helen’s wishes and her existing attorneys in fact (Molly and Kevin).
Affirmed in part and reversed and remanded in part.
Barnes, J., and Mathias, J., concur.