is a Guardianship?
guardianship is an involuntary trust relationship in which one party,
called a guardian, acts for an individual called the ward. The law regards
the ward as incapable of managing his or her own person and/or affairs.
is a Guardian?
guardian is any adult person, association or corporation appointed by the
Probate Court to assume responsibility for the care and management of the
person, the estate, or both, of an incompetent person or minor child. A
corporation can only be guardian of the estate and not of the person.
needs a Guardian?
guardian may be appointed for either an incompetent or minor, which are
defined by statute as:
Any person who is so mentally impaired as a result of a mental or physical
illness or disability, or mental retardation, or as a result of chronic
substance abuse, that the person is incapable of taking proper care of the
personís self or property or fails to provide for the personís family
or other persons for whom the person is charged by law to provide, or any
person confined to a correctional institution within this state.
Any person under 18 years of age who has neither father nor mother or whose
parents are unsuitable to have custody and tuition of such minor, or whose
interests, in the opinion of the Court, will be promoted.
Settlement: Natural parents do not have an inherent right to settle
personal injury claims on behalf of a minor child. The Probate Court must
authorize approval of such settlements. If the settlement exceeds
$25,000.00, the Court will require the appointment of a guardian of the
chooses the Guardian?
Court appoints the guardian. However, a minor over 14, or the parents by
will, may suggest a guardian for a minor. In addition, an adult, while
competent, may nominate a guardian to serve in the event of incapacity.
Application for guardianship is filed in the Probate Court of the county
of the wardís residence by an interested party, or on the Courtís own
Application must include a statement of the guardianís willingness to
perform as guardian, a bond as required by law, and, in the case of a
prospective incompetent ward, a statement of the wardís mental and
physical condition from a treating physician, psychiatrist, or licensed
The prospective ward, as well as the adult next of kin, are notified of
the impending guardianship and date and time of hearing as prescribed by
law. In the case of an incompetent proceeding, the notice and a statement
of rights will be served on the prospective ward by a Court Investigator.
An investigation is conducted, in the case of a prospective incompetent
ward, by a Court Investigator, which includes an interview with the
prospective ward in order to assist the Court in determining the
advisability of guardianship.
A formal hearing is conducted by the Judge or Magistrate to determine if a
guardianship is necessary, the guardian is suitable, and the guardian
understands his duties.
of the Ward
prospective ward has the right to be present at the hearing, to contest
any application for guardianship, to have a record of the hearing taken,
to have a friend or family member present at the hearing, and to be
represented by an attorney. A prospective incompetent ward has the
additional right to present evidence of a less restrictive alternative,
and if indigent and requested, to have an attorney and independent expert
appointed at Court expense.
Probate Court is the superior guardian, and all guardians must obey all
orders of the Court. The Court exerts its supervisory authority through
A guardian of the estate must file a written account with the Court
annually as to the income and expenses of the wardís estate.
A guardian of an incompetent ward must file a written report annually. The
report concerns the status of, and continued need for the guardianship.
If a guardian fails to timely file a report, an inventory, or accounting,
the Court may cite a guardian to appear, and may fine, reduce the guardianís
fee, or remove the guardian.
To determine if a guardianship is functioning properly, the Court may
order an investigation by a Court Investigator, Law Enforcement Agency,
Adult Protective Service, or other County Agency.
Approval: The guardian must first obtain approval of the Probate Court
before entering into contracts or leases, making improvements to real
estate or mortgage real estate, selling assets of the ward, or settling
any personal injury claim for the ward.
The Court may, at any time, in the best interest of the ward, remove the
and/or Estate: A guardian may be appointed either a guardian of the
person, a guardian of the estate, or both. A guardian of the person has
custody of, controls, and protects, the person of the ward.
A guardian may be appointed with limited powers to make restricted or
specific decisions of the ward. The ward retains all powers not granted to
In an emergency in which significant injury to a prospective ward may
occur unless immediate action is taken, the Court may appoint an emergency
guardian for 72 hours.
guardianís compensation and attorneyís fees are set by Court rule, and
must be approved prior to fees being paid.
Court order will terminate a guardianship upon the death of a ward, upon
the ward being adjudged competent, or, in the case of a minor, upon
reaching the age of majority (18). A motion for termination of a
guardianship of an incompetent may be filed 120 days after an appointment
of a guardian, and once every year thereafter.
law requires that no guardian should be appointed if less restrictive
alternatives to a guardianship exist. Except for Representative-Custodial
Payee, all alternatives involve a person who has capacity, or is
competent, to grant powers. If the person does not have capacity when the
powers are granted, they are subject to challenge and may be void.
- What is Conservatorship?
conservatorship is a voluntary trust relationship using guardianship laws
and procedures as its basis, in which one party, known as the conservator,
acts with Court supervision for a competent, physically infirmed adult,
who is called the conservatee.
chooses the Conservator?
conservatorship is based on the consent of the person for whom the
conservatorship is to benefit. Thus, the conservatee decides who will
serve as conservator, and what property and powers of the conservatee will
be included in the conservatorship. In addition, the conservatee decides
which of the guardianship duties and procedures the conservator follows
and the Court enforces.
is the Courtís Role?
a petition is filed, and the matter heard, the Court will determine if the
petitioner is infirmed, the petition is voluntary, and the conservator is
suitable. If the petition is granted, the Court, while the conservatorship
exists, will apply the laws and procedures of Ohio pertaining to
guardianship, except those excluded by the conservatee.
is the Conservatorship terminated?
conservatorship is terminated by judicial determination of incompetency,
the death of the conservatee, the order of the Probate Court, or the
execution of a written termination notice by the conservatee.
of Attorney - What is a Power of Attorney?
power of attorney is a written authorization for an agent to perform
specified acts, either personal (health care) or estate (property) on
behalf of a principal.
of Power of Attorney
A Power of Attorney in which the powers granted remain in effect in the
event of the grantorís incapacity or on being adjudged incompetent.
A Power of Attorney in which the powers granted become effective when the
grantor becomes incapacitated or is adjudged incompetent.
Care: A durable Power of Attorney that may be used to authorize health
care decisions in the event of incapacity.
of Powers of Attorney
Powers of Attorney, such as those involving transfer of real property,
require recording, and must be executed in a specific manner. It is
recommended that legal advice be obtained before executing Powers of
Attorney as an alternative to guardianship. In addition, there are few
safeguards or protections from abuse or misuse of Powers of Attorney. For
that reason, before execution, the agent of the Power of Attorney should
be of good character, and be very carefully chosen.
intervivos trust is a confidential relationship involving a trustee,
usually a bank, who manages only the property of a living person for the
benefit of that person or someone else. Banks often require a minimum
Representative-Custodial Payee is an individual authorized to receive and
expend Social Security, Supplemental Security Income, or Veteranís
Benefits, on behalf of the recipient, based upon a Court finding of mental
incompetence or on a submission of evidence to the Social Security or
Veteranís Administration of mental or physical incapacity which impairs
management of the funds.