dissenting with separate opinion.
I respectfully dissent. Although Judge Friedlander’s majority opinion is thoughtful and “solves” the long-standing dispute between the Brothers and the Children, the evidence indicates to me that the last will made while E.N. was competent left his estate to the Brothers and that today’s decision is in conflict with that intention.
Assuming that the trial court had the statutory authority to approve an estate plan transferring all of E.N.’s assets into a trust, I am not convinced that the approval of an estate plan in which the Children and the Children’s children are the primary beneficiaries upon E.N.’s death “is consistent with the apparent intention of the protected person.” Ind.Code § 29-3-9-4(b). E.N. executed several wills during his lifetime. In the wills executed in December 1997 and February 1999, E.N. named the Brothers as his sole beneficiaries. The trial court found that the testimony indicated that E.N. “intended in 1998 and 1999 to disinherit his children as evidenced by the two Last Wills executed prior to and subsequent to his divorce action....” Appellants’ Br. p. j. The trial court also found that no evidence was presented that E.N. was incapacitated in December 1997 and that Shirley testified “that she had no reason to believe that in 1996 or 1997 there was anything mentally wrong with her father.” Id. at d.
In November 1999, E.N. executed a will in which he left everything to the Children. However the trial court found, based on Shirley’s testimony, that E.N.’s mental condition had deteriorated since June of 1999. See Appellants’ Br. p. d. More specifically, the trial court found, “In June 1999, [E.N.] was suffering from dementia and was unable to care for himself or his affairs.” Id. at e.
Despite finding that E.N. was not incapacitated when he drafted the 1997 will, the trial court concluded:
CIO. There has been testimony that [E.N.], while in a weakened and vulnerable condition, was susceptible to the influence of those who are now in a legal position to benefit from this death, including his brothers William and Arville Nolan and his children Marvin and Shirley Nolan.
[E.N.] was not competent to make his Wills. Because of his diminished mental condition, he lacked the capacity in each case to look beyond the kindness of *970those who were providing for his physical and emotional needs during each period.
Id. at m.
Because of the extreme disparities in E.N.’s wishes and the decline of his mental capacity toward the end of his life, I believe it is unwise to completely disregard the intentions clearly indicated in E.N.’s 1997 will, as this will appears to have been made while E.N. was competent. I am troubled, to say the least, that the Children who were specifically disinherited in this will, were subsequently permitted to effectively rewrite E.N.’s will to their benefit. Although Indiana Code Section 29-3-9-4 certainly permits the creation of estate plans in some situations, I am hesitant to allow the statute to be used to override an estate plan or will created by the protected person before the guardianship proceedings were initiated. Because the statute only permits, and does not require, the authorization of a guardian’s plan, I believe this dispute is better resolved in a probate proceeding.3
. I also do not believe that this is a situation in which the trial court was free to determine what a reasonable and prudent person would do under similar circumstances because there is not an absence of evidence as to the declarations, practices, or conduct of the protected person. See I.C. § 29-3-9-4(b).