All Information Provided by the Ohio Association of Probate Judges
What is 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.
What is a Guardian?
A guardian is any adult appointed by the Probate Court to assume responsibility for the care and
management of the person, the estate, or both, of an incompetent person. The guardian makes major
life decisions for the ward who is otherwise unable to make his or her own decisions.
A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
Incompetent: An incompetent is 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 himself or his property.
Who chooses the Guardian?
The Probate 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.
The Probate Court complies with Ohio law about guardianship. The following sections provide details of what you can expect.
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.
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:
Accountings: A guardian of the estate must file a written account with the Court annually or biennially as to the income and expenses of the ward's estate.
Reports: A guardian of an incompetent ward must file a written report annually or biennially. The report concerns the status of, and continued need for, the guardianship.
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 Services, 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.
Review: The court may, at any time, review the guardianship to determine if there are less restrictive alternatives.
Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.
Person 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 of the estate controls and protects the assets or property of the ward.
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. There is also a $175.00 filing fee to become the guardian.
Can a Guardianship be 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.
Substituted Judgment: Guardians make decisions that would, as closely as possible, reflect what their wards would have wanted if they were capable of making their own decisions, as long as those decisions will not cause substantial harm.
Best Interest: When a ward's desires are not known, the guardian determines what is best for the ward, considering that which is least intrusive, most normalizing, and least restrictive.
There are several alternatives to guardianship. However, 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 voided.
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, 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 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 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 Powers 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.
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 very carefully chosen.
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.
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.
A Will is a document signed by an individual (the "Testator") in accordance with certain formalities that directs the disposition of his/her property (personal possessions, "intangible" assets, such as cash, stocks and bonds, as well as real estate) at death. A Will only controls assets which pass through probate, and having a Will does not avoid probate.
For more information contact the Cuyahoga County Probate Court, Monday through Friday, 8:30 AM to 4:30 PM. Phone: 216-443-8764 or 216-443-8765. Or contact them at probate.cuyahogacounty.us/home.htm.