Bill giving adult guardians authority over final dispositions advances, but with concerns

A bill that would give adult guardians a say in the final disposition of their wards is headed to the full Senate, but a narrow vote in committee likely means the legislation will see further amendments.

Senate Bill 276 is scheduled for second reading in the Indiana Senate on Monday. The Senate Judiciary Committee on Feb. 3 advanced the legislation — authored by Sen. Tim Lanane, D-Anderson — on a 6-5 vote.

SB 276 came to the Judiciary Committee from the Probate Code Study Commission. The commission heard testimony this fall about an issue guardians say has become more pronounced during COVID: When a ward dies, guardians’ duties terminate immediately.

According to Rebecca Pryor, a practicing adult guardian and guardianship advocate, that termination presents a problem in situations where an incapacitated adult has no other family or representatives to carry out their final wishes. In those cases, Pryor previously told Indiana Lawyer, guardians must search for family members who may not have been involved in the deceased’s life but who would have the legal right to make decisions regarding final disposition.

To remedy that issue, Lanane’s legislation would amend Chapter 29 of the Indiana Code to give court-appointed adult guardians high priority to make decisions regarding the disposition of the body, as well as funeral and ceremonial arrangements. Specifically, I.C. 29-2-19-7 would place adult guardians second on the priority list, behind only a person given authority in a funeral planning declaration or a Department of Defense form if the decedent died while serving in the Armed Forces.

Under an amendment approved by the committee, additional statutes in Chapter 29 and Chapter 23 would give guardians second-place priority to make decisions regarding other issues such as anatomical gifts and requesting an autopsy.

The Probate Code Study Commission ultimately did not make a recommendation on the issue, which was brought by Pryor on behalf of the Working Interdisciplinary Networks of Guardianship Stakeholders — or WINGS — Indiana Adult Guardianship State Task Force. In addition to WINGS, the legislation received support in the Judiciary Committee from the Indiana Funeral Directors Association, Indiana AARP and the Indiana Association of Area Agencies on Aging, as well as from Anne Poindexter, a probate lawyer with Altman, Poindexter & Wyatt in Carmel.

Sen. Sue Glick, R-LaGrange, was added as an author on the bill with Lanane. However, several of her Republican colleagues raised concerns about SB 276 and ultimately voted against it.

Among them was Sen. Aaron Freeman, the Indianapolis Republican who chaired the Probate Code Study Commission. He called the legislation a “fundamental” change to the general premise that an adult guardianship terminates at the time of a ward’s death.

The most frequent concern raised during both commission hearings and in committee was the placement of guardians above surviving spouses on the statutory priority lists. The proposed amendments to the probate code would place spouses fourth on the list, behind those with powers of attorney.

Lanane told committee members that if a court has determined a guardian is necessary, any surviving spouse likely has been determined to not have the capability to advocate for their spouse’s best interests. Sen. Lonnie Randolph, however, voted against the legislation based on that issue.

“I have been married 27 years, and I’m not going to put a guardian above my wife,” Randolph said during the committee vote. “I cannot see a mother being second fiddle to a guardian of an unmarried single son.

“I see the objective,” Randolph continued, “but at this point I can’t support this.”

Freeman and Sen. Mike Young, also an Indianapolis Republican, both raised a related issue: the role of out-of-state family in making final decisions in cases where a guardian has been appointed.

Young presented two scenarios: first, a guardian choosing to spend an excessive amount of money on a funeral, and second, a guardian going against a ward’s religious or personal beliefs on issues such as organ donation. If either of those situations were present, what redress would family members have?

Pryor sought to assuage those concerns by telling Young that generally, if a guardian is appointed and family members have a relationship with the ward, the guardian will work with both the ward and the family on end-of-life decisions. That would include the pre-planning of funeral arrangements and making decisions on issues such as whether the ward wishes to be an organ donor.

Young, however, ultimately did not support SB 276 in committee.

“I think most of them, if they’re good guardians, will try to work these issues out ahead of time,” he said. “But they’re not required to be worked out ahead of time, and I don’t know if I have standing” to challenge the guardian’s decisions as a family member.

In a similar vein, Freeman presented a scenario from his own experience: his grandparents recently died, and while he was not their guardian, he is now serving as the executor of their affairs in Ohio. Under SB 276, Freeman said, his voice in final decision-making would be behind that of a guardian, if one had been appointed for his grandparents.

“You’re not going to get me to sign up for that,” he said.

The Probate, Trust & Real Property Section of the Indiana State Bar Association, represented by Indianapolis probate lawyer Jeff Dible, took a neutral position on SB 276. Dible, counsel at Frost Brown Todd in Indianapolis, said the bar had “technical” concerns about the legislation.

Specifically, Dible raised the issue of SB 276 conflicting with statutes governing health care powers of attorney. It’s not controversial to add guardians to the priority list, he said, but reasonable minds differ over whether guardians should be above POAs on those lists. SB 276 would place POAs third on the list, behind guardians.

Other statutes concerning POAs specifically provide that in situations where both a POA and a guardian are in place, the guardian cannot perform any task under the authority of the attorney in fact without a court order, Dible said. Thus, amending the statutes at issue in SB 276 to give guardianships priority over POAs could create inconsistencies, he said.

The leading case dealing with that issue, Dible said, is Guardianship of Morris, 56 N.E.3rd 719 (Ind. Ct. App. 2016).

Dible also noted that House Bill 1252 addresses the same statute as SB 276, so he cautioned the General Assembly against writing each bill in such a way that would create a conflict. Similarly, Sen. Liz Brown, the Fort Wayne Republican who chairs the Judiciary Committee, noted that SB 276 would need to be harmonized with Senate Bill 204, which deals with health care advance directives.

Some Republicans on the committee urged Brown to hold the bill for additional committee amendment, while Lanane offered to amend his bill on the Senate floor. Brown ultimately called for a vote, telling committee members that she was confident Lanane would keep his word to continue working on the bill. Glick, too, told committee members who opposed the measure that they were “overthinking” its impact.

Those opposing SB 276 in committee were Randolph, Young, Freeman and Republican Sens. Eric Koch of Bedford and Mike Gaskill of Pendleton.

The Feb. 3 committee hearing can be viewed online.