Advantages and Disadvantages of Guardianship
By Barry Zimmer on June 23rd, 2016 in Guardianship
Guardianship may become necessary in situations when parent’s aren’t able to provide care for a child or when an adult is not able to care for himself or herself. A person with disabilities may require a guardian for his or her entire life. In other situations, a person may require a guardian as that person ages and develops dementia or another condition which renders him unable to make his own decisions and communicate his desires.
When someone needs a guardian, a court hearing must first be held to determine if that person actually does need to have someone else making decisions for him. The court will also decide who to appoint as a guardian. The process can be complicated and time consuming, but it is essential.
If your loved one has become ill or injured and cannot make decisions for himself, you will need to consider guardianship proceedings. A Sharonville guardianship lawyer at Zimmer Law Firm can help.
We can also provide assistance to people who want to create an incapacity plan in advance so their loved ones will not need to petition the court for guardianship in the event an illness or an injury results in an inability to make or communicate decisions.
Pros and Cons of Guardianship
Ohio Code Section 2111.02 establish the rules for appointment of a limited, interim, emergency, or standby guardian and establishes the rules for nomination of a guardian.
According to the relevant code section: “if found necessary, a probate court on its own motion or on application by any interested party shall appoint… a guardian of the person, the estate, or both, of a minor or incompetent, provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement in the county.”
When petitioning for guardianship, it will be necessary to prove that the person is incompetent before the court decides to appoint a guardian. If someone is incapacitated and no advance plans have been made, guardianship will be the only available option. However, if an incapacity plan was made in advance, alternatives such as a power of attorney may be considered instead.
It is important to consider whether other alternatives to guardianship are preferred, as well as to understand some of the pros and cons of guardianship. For example:
- Pro: Guardianship is possible even after incapacity: A power of attorney and other incapacity plans have to be made before incapacity actually happens. If your friend or relative is already unable to make or communicate decisions, it is too late for other options besides guardianship.
- Pro: Guardianship can give control to a trusted third party: When a guardian is appointed, the court will appoint a close relative or a family member who can be trusted to make decisions for the incapacitated person (who is called a ward).
- Pro: Guardianship comes with court oversight: When a guardian is appointed by a probate court, the guardian has a fiduciary duty to act in the ward’s best interests. The court may keep tabs on how decisions are being made and assets managed to ensure the guardian is fulfilling his duty.
- Con: Court proceedings can be costly and complicated: The process of having someone declared incompetent and then having someone appointed guardian can take time and there are court costs and legal fees which may need to be paid.
- Con: The incapacitated person doesn’t get to choose his guardian: When a power of attorney is created, you can choose who acts for you in case of incapacity. In the case of guardianship proceedings, the incompetent person has no say in who the court decides will be his or her guardian.
- Con: The court is involved in private family decisions: Because the court oversees the actions taken by the guardian, there is a third party outside who is reviewing the decisions a guardian may be making on behalf of an incapacitated family member. While an agent named in power of attorney also has a fiduciary obligation, courts don’t typically become involved in judging the agent’s actions unless a claim is made that a duty was breached.
These are just a few of many key things to consider when deciding if you should create a power of attorney or other incapacity plan, and when deciding if you need to petition to become a guardian for someone that you love.
Getting Help from a Sharonville Guardianship Lawyer
If you need help with the creation of an incapacity plan or with petitioning for guardianship, a Sharonville guardianship lawyer can assist you. Give us a call at 513.721.1513 or join us for a free seminar to learn more about guardianship.