WHAT IS A GUARDIANSHIP?
A guardianship is an involuntary trust relationship in which one party, called the 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.
WHAT IS A GUARDIAN?
A 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.
WHO NEEDS A GUARDIAN?
A guardian may be appointed for either an incompetent adult or a minor, which are defined by statute as:
Incompetent: Any person who is so mentally impaired as a result of a mental or physical illness or disability, or intellectual disability, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s 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.
Minor: Any person under 18 years of age who has neither a 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.
Minor 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 estate.
WHO CHOOSES THE GUARDIAN?
The 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 upon approval of the court, in the event of incompetency.
An application for guardianship is filed in the Probate Court of the county of the proposed ward’s residence by an interested party.
The application must include a statement of the guardian’s willingness to perform as guardian, a bond as required by law, and, in the case of a proposed adult ward, a statement of the proposed ward’s mental and physical condition from a Licensed Physician or Licensed Clinical Psychologist. The statement of expert evaluation filed with the application CAN NOT be filled out by a Licensed Independent Social Worker, a Licensed Social Worker, Registered Nurse, Nurse Practitioner, or other professional.
The prospective ward, as well as the adult next of kin (who reside in the State of Ohio), are notified of the impending guardianship and date and time of hearing as prescribed by law. In the case of an adult guardianship proceeding, the notice and a statement of rights will be served on the proposed ward by a Court Investigator.
An investigation is conducted, in the case of a proposed adult ward, by a Court Investigator, which includes a mandatory interview with the proposed ward and the applicant, prior to the hearing, in order to assist the Court in determining the necessity for a guardianship. The applicant must contact the Court Investigator to schedule the interview at least two weeks prior to the hearing.
A WEBCHECK criminal background check must be completed prior to the hearing.
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 or her duties.
RIGHTS OF THE WARD
The proposed 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 proposed ward has the right to present evidence of a less restrictive alternative. If the proposed ward is indigent, the individual may request to have an attorney and independent expert appointed at the Court's expense.
The Probate Court is the superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:
Accounting: A guardian of the estate must file a written account with the Court annually as to the income and expenses of the ward’s estate.
Reports: A guardian of an incompetent ward must file a written report annually. The report concerns the status of, and continued need for, the guardianship. A guardian's annual plan shall also be filed.
Citations: 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 guardian’s fee, or remove the guardian.
Investigations: 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.
Prior 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.
Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.
TYPES OF GUARDIANSHIPS
Person and/or Estate: A guardian may be appointed as 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 of the estate must be an Ohio resident.
Limited: 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 the guardian.
Emergency: 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.
A guardian’s compensation and attorney’s fees are set by Court rule, and must be approved prior to fees being paid.
A 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.
ALTERNATIVE TO GUARDIANSHIP
The law requires that no guardian should be appointed if less restrictive alternatives to a guardianship exist. Except for a representative-custodial payee, all alternatives involve a person who is competent to grant powers. If the person is not competent when the powers are granted, they are subject to challenge and may be void.
WHAT IS A CONSERVATORSHIP?
A 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.
WHO CHOOSES THE CONSERVATOR?
A 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.
WHAT IS THE COURT'S ROLE?
After a petition is filed and the matter is 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.
HOW IS THE CONSERVATORSHIP TERMINATED?
A 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.
WHAT IS A POWER OF ATTORNEY?
A 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.
WHAT ARE THE TYPES OF POWER OF ATTORNEY?
Durable: A Power of Attorney in which the powers granted remain in effect in the event of the grantor’s incapacity or on being adjudged incompetent.
Springing: A Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent.
Health Care: A durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity.
HOW DO YOU EXECUTE POWERS OF ATTORNEY?
Certain 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.
WHAT IS AN INTERVIVOS TRUST?
An 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 trust amount.
WHAT IS A REPRESENTATIVE-CUSTODIAL PAYEE?
A representative-custodial payee is an individual authorized to receive and expend Social Security, Supplemental Security Income, or Veteran’s 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 Veteran’s Administration of mental or physical incapacity which impairs management of the funds.
The Probate Court accepts payment by cash, check, or money order. The Court does not accept payment by debit or credit cards.
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