Guardianships & Alternatives
Guardianship of Incompetent Instructions
What Is a Guardianship?
A 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.
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. A person for whom a guardian has been appointed is called a Award.
A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
Incompetent: Application for Appointment of Guardian for Alleged Incompetent
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 he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal 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. [NOTE: With respect to a Minor's Settlement, the 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 $10,000, the Court will require the appointment of a guardian of an estate.]
A guardian may be appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. A guardianship is typically an involuntary process, as family members or others ask the court to act to protect someone who appears to be incompetent. Once appointed, a guardian is answerable to the court for providing proper care and management of the ward's affairs in the ward's best interest.
What are the Duties of a Guardian of the Person?
A guardian of the person is appointed to protect and have physical custody of a ward and to provide for the ward's day-to-day maintenance. Maintenance means providing food, shelter, clothing, health care and other necessities. It includes responsibility for the education of a minor ward as required by law, and making decisions about medical treatment and other professional services the ward may require. A guardian of the person may also serve as guardian of an incompetent adult's minor children, if no other guardian has been appointed for them. Only a natural person (not a bank or a company) can be appointed as a guardian of the person.
What are the Duties of a Guardian of the Estate?
A guardian of the estate is appointed to manage the property and financial assets of the ward for the ward's best interests. Specifically, the guardian of the estate must:
- pay all debts owed by the ward;
- collect all money owed to the ward;
- settle and adjust any assets received from the executor or administrator of an estate;
- deposit all funds of the ward into an account in the name of the guardian as fiduciary;
- invest any of the ward's funds not needed for current obligations according to legal guidelines;
- file an official inventory and accounts of the ward''s estate with the court on a regular basis;
- file or defend lawsuits on behalf of the ward if necessary to protect his or her interests.
[NOTE: Unless the court order appointing a guardian specifies otherwise, the same person is normally named as both guardian of the person and the estate.]
What is a limited guardian?
A limited guardian is a guardian whose powers are specifically limited by the probate court. A ward for whom a limited guardian has been appointed retains all rights in all areas not covered by the Court's order limiting the guardianship.
What is a interim guardian?
An interim guardian is a guardian appointed after a former guardian has been removed or resigns or when the welfare of the ward requires immediate action.
What is an emergency guardian?
An emergency guardian is a guardian appointed by the probate court without a formal hearing when an emergency exists and a guardian is necessary to prevent injury to the person or estate of the ward. The emergency guardianship is only valid for 72 hours, but may be extended for not to exceed thirty (30) days.
How is a guardian appointed?
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 in the event of incapacity.
An application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion.
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 prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.
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.
What are the rights of the ward?
The 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.
Who is the Superior Guardian?
The Probate Court is the superior guardian. Guardians must obey all orders of the Court.
What is a guardian's inventory?
A guardian of the estate of a ward must file an inventory of the ward's assets within three months after appointment. The inventory must list all real and personal property of the ward and the annual value of the rental of any real estate.
The probate court may require that the inventory be supported by evidence and that the guardian produce prior income tax returns, bank statements, Social Security records of the ward or any other relevant documents. In addition, the probate court may appoint an investigator or assign court employees to conduct an investigation to verify the accuracy of the inventory. At the time he or she is appointed, a guardian may not open a ward's safety deposit box until it has been audited by the county auditor of the appropriate county involved, on behalf of the Court. The probate court may appoint an auditor's representative to also serve as a deputy clerk of the Court for such purposes.
What is a guardian's account?
Every guardian, except a guardian of the person only, must file an account in the probate court at least once every two years, or more often if local court rules require it. A final account must be filed within 30 days after the termination of the guardianship. This account must include an itemized statement of all receipts, disbursements and distributions made from the ward's estate. All transactions must be verified by vouchers or proof, unless a corporate fiduciary is involved. The accounting must also contain an itemized statement of all funds, assets and investments in the guardian's hands at the end of the accounting period, and any changes in investments since the last account was filed. Actual securities and passbooks or bank statements must be exhibited to the probate court for examination, and the account must be made on the signature and oath of the guardian.
A guardian of the person only may also be ordered to provide an accounting from time to time for good cause shown on the court's own motion or on the motion of any interested party.
What is a guardian's report?
A guardian's report to the Probate Court is required of all guardians of incompetent persons. This report must be filed every two years after the date of a guardian's appointment. The Probate Court, on motion or by rule, has the authority to require such a report at any time.
The guardian's report must be made on a court-prescribed form, and must contain specific information, including a list of the number and nature of contacts with the ward over the period covered by the report; any major changes in the ward's physical or mental condition observed by the guardian; the guardian's opinion as to the necessity for continuing the guardianship; the adequacy of the care that the ward is receiving; and the date that the ward last saw a physician. The purpose of the report is to assist the Probate Court in determining if the guardianship should be continued. The Court may appoint an investigator to verify the report.
How does the Probate Court enforce compliance?
Citations: If a guardian fails to timely file a report, 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, expending the ward's assets or settling any personal injury claim for the ward.
Removal: The Court may, at any time and in the best interest of the ward, remove the guardian.
How to be an effective guardian?
The key to being an effective guardian is to have as much knowledge about and direct contact with the ward as possible. The guardian should make every attempt to have a positive relationship with the ward, visit and communicate with the ward often and generally demonstrate personal concern for the ward and his or her well being. It is also important to establish and maintain a positive relationship with all of the ward's family members. A guardian will find that he or she can avoid problems and complications by keeping all family members informed of what is going on with the guardianship, and actively inviting them to participate to the extent practical. Problems rarely arise in those guardianships where the guardian makes both the ward and his or her family members feel that they are important members of a team.
Is legal representation required?
Yes. A guardian should be careful in taking advice regarding his or her duties to the ward. A lawyer can help you understand and fulfill your legal duties as a guardian, and avoid mistakes or oversights that could result in serious harm to your ward or his or her family. Ohio's laws regarding the appointment and conduct of guardians are not simple. Understanding and complying with them calls for professional expertise.
Is a guardian entitled to fees?
Generally, the Guardian of an Estate may be entitled to receive fees. However, that guardian's compensation, and attorney's fees, are set by Court rule and must be approved prior to fees being paid.
How is a guardianship terminated?
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.
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 a conservator, acts with Court supervision for a competent, but physically infirmed adult, who is called the conservatee.
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 and conservator follows and the Court enforces.
After 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.
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 and are generally of three types:
Durable (In which the powers granted remain in effect in the event of the grantor's incapacity or on being adjudged incompetent);
Springing (in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent); and
Health Care (which may be used to authorize health care decisions in the event of incapacity).
Certain Powers of Attorney, such as those involving the ability to transfer 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, 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 submission of evidence to the Social Security or Veterans Administrations of mental or physical incapacity which impairs management of the funds.
Where Can I Get More Information?
If you or someone close to you needs information on how to set up a legal guardianship ask friends and family members for the name of an attorney who is knowledgeable about probate matters. If necessary, contact the lawyer referral service operated by your local bar association or one nearby. Check the Yellow Pages under associations or attorney referral services.
[NOTE: 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.]