Legal Question in Wills and Trusts in Indiana

Hello, I have a mother who is in a nursing home . She is completely incapacitated. She is in the last stages of alzheimers. My father has guardianship over her. This is the problem. He has made it known to everyone that he has chose to move on with his life with another woman.He says he wont divorce mom because In. law says she would get half of everything. I have a younger brother who is their power of attorney and he is at a loss of what to do . We cant even get our father to make moms final arrangements. I worry that she now does not have a voice or anyone looking out for her . She did not have a will. Can we legally have him removed as her guardian?

Asked on 1/03/10, 5:10 pm

3 Answers from Attorneys

Mary J. Hoeller, R.N., J.D. Attorney At Law

The short answer is that you can try but that will not be a satisfactory resolution for anyone. I suggest you discuss all these concerns in an open manner and that your entire family sit down with a trained Elder Mediator to help work out agreements outside of court that all can live with and that will be in Mom's best interest. Mary 633-4002.

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Answered on 1/09/10, 11:59 am
Jay Rigdon Rockhill Pinnick LLP

Keep in mind that he is right about the divorce, and that Uncle Sam might simply get the half that would go to her. If there is a problem with her current care, you can ask for removal of the guardian. Nothing stops you from making plans for the funeral, though I understand you may have meant that he won't commit the money to pay for it.

I agree that a candid conversation with a neutral third party would be best for all concerned.

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Answered on 1/11/10, 7:31 am
C. David DuMond Law Offices of David DuMond

I am sorry that you and your family have such a distressing problem. When Mr Rigdon states that Uncle Sam might get the half that would go to her, I think he refers to the Medicaid issue. If your mother's care is now covered by Medicaid, and your mother and father's money resources are modest (like a few hundred thousand dollars or so), then it is very possible that money coming into your mother's name alone would be used to pay her nursing home expenses, which probably exceed $5000 a month. Also, there is no guarantee that the marital property would be divided equally. The law provides many exceptions to an equal division. And to answer your question, if you can show a conflict of interest or other basis for your father to removed as guardian, then the court would probably do so. But it's no good for us to try to figure out all the issues in this problem in this format. You need to confer with a real lawyer with a practice in your county experienced in both family law and elder law. Good luck

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Answered on 1/11/10, 6:31 pm

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