In Ohio, a guardian is defined as “a person, association or corporation appointed by a probate court to be legally responsible for an incompetent person and/or the person’s property.” In the vast majority of instances, individuals are appointed to serve in that role. The one who receives the benefits of having a guardian is the “ward”. In a perfect world, there would be no need for courts to oversee intimate private matters such as legal guardianship, but as we know, a perfect world we don’t reside. This week, we take a look at the role of legal guardianship in Ohio.
Perhaps what’s most confusing to so many is that only a court can appoint a guardian. That doesn’t mean, however, that it can’t be your choice before a court’s involvement is required. You can nominate or name someone in advance to act on your behalf. The same holds true for any minor children you have or any adults deemed incompetent. Your request or nomination must be in writing; further, it must be witnessed by two disinterested individuals or it must be properly notarized.
From an estate planning perspective, many people will nominate a guardian in their wills and sometimes any financial powers of attorney they’ve opted to include.
The Guardian’s Role
A guardian’s role is to manage the personal and/or financial affairs of a minor or of an adult who cannot do so because of legal or mental incapacity. As you might expect, Ohio law makes it clear that the preference is with a family member when it’s possible, though anyone may ask the court to be appointed. There must exist a “statement of expert evaluation” attached with the filing and this is usually provided via a physician. If the court agrees and finds a person to be incompetent, it can then appoint a guardian for that person even if he or she does not want one.
The guardian’s control is limited to what the law requires, including relevant Ohio court decisions and orders and rules of the probate court. The guardians are required to obey anything set forth by the judge, though often, unlimited authority is granted. Also, any spending of the ward’s monies must be first approved by the court and it also maintains the right to deny any purchases or requests.
Too many times, those who take the challenging role discover that they might have underestimated the level of involvement it requires, even when it’s not possible to communicate with the alleged incapacitated person regarding his needs or wants.
Any legal guardian in Ohio should act under the consultation of an experienced lawyer. Those who do take on the role should understand the emotional investment it will require.
Remember, too, there are often other family members and sometimes, they don’t like the idea of anyone else having the decision making authority.
If you’d like to learn more about Ohio guardianship, contact our offices today. We stand ready to provide guidance so that the best choices can be made for you and your family.