What is a guardian?
A guardian is a person, association or corporation appointed by a probate court to be legally responsible for an incompetent person and/or the person’s property. Most commonly, individuals are appointed to serve as guardians. The person for whom a guardian has been appointed is called the ward.
How can I go about appointing a guardian if I become incompetent?
Only a court may appoint a guardian. You, however, may nominate in advance a guardian to act for you, or for your minor or adult incompetent children. A court will appoint the guardian you nominate unless that person is unsuitable for some reason or the person declines to serve as guardian. The nomination must be in writing and witnessed either by two disinterested individuals or be notarized. Many people nominate a guardian in a last will and testament or in a financial power of attorney document. Effective March 20, 2014, it is also possible to nominate a guardian in a health care power of attorney document. In any of these documents, you may give the person you nominate the authority to nominate his or her successor, if needed. The document containing the nomination may be filed with the probate court for safekeeping.
Why are guardians appointed?
A court will appoint a guardian 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. Under Ohio law, family members are given preference, but anyone may ask the probate court to be appointed guardian. This is an involuntary proceeding, and must be supported by a “statement of expert evaluation,” usually completed by a physician. If the court finds a person to be incompetent, the court can appoint a guardian for that person even if he or she does not want one. A so-called “voluntary guardianship” for an adult who is physically incapacitated, but otherwise competent, is more properly known as a conservatorship. Once appointed, a guardian must answer to the court for providing proper care and management of the ward’s affairs in the ward’s best interests. Parents are the natural guardians of their minor children and, so long as the parents are living, competent and providing for the minor children’s needs, parents do not typically need to seek guardianship of their own children.
What are the general powers and duties of a guardian?
A guardian’s control over a ward is limited to the authority granted by Ohio law, relevant Ohio court decisions and orders and rules of the probate court. All guardians must obey the orders and rules of the probate court that appointed them. The probate court typically gives a guardian unlimited authority to act, although spending the ward’s funds requires prior court approval. The court may also restrict or deny any particular authority.
What are the types of guardianships available in Ohio?
A guardian of the person is appointed to make personal decisions for the ward, such as where the ward will live and how health care services will be provided. It can also include responsibility for a minor ward’s education as required by law. A guardian of the person also serves as guardian of the ward’s minor children, if no other guardian has been appointed for them.
A guardian of the estate is appointed to manage the ward’s assets. 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 by the ward 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 with the court an official inventory of the ward’s assets and, on a regular basis, file accounts of how those assets are being used;
- Sell assets for the ward as necessary; and
- File or defend lawsuits on behalf of the ward if necessary to protect his or her interests.
Before being appointed, an applicant for guardian of the estate must give the court a fiduciary bond equal to double the probable value of the ward’s assets (other than real estate) and income. This means the applicant should generally have good credit.
(Note: Unless the court order appointing a guardian specifies otherwise, the same person is normally named as guardian of the person and the estate, if both are required.)
A limited guardian is a guardian whose powers the probate court is specifically limited to a particular purpose and/or for a definite time. If the court appoints a limited guardian for a ward, the ward retains all rights in all areas not covered by the Order of Limited Guardianship.
An interim guardian is a guardian appointed after a former guardian has been temporarily or permanently removed or resigns, if and when the probate court determines that immediate action is required for the ward’s welfare.
An emergency guardian is a guardian the probate court appoints without a formal hearing when there is an emergency and a guardian must be named to prevent imminent injury to the person or estate of the ward.
A conservator is a person the probate court appoints at the request of a mentally competent adult who is physically incapacitated. The individual requesting a conservator identifies who that will be and can define the specific authorities the conservator can exercise. The appointment of a conservator is not considered as evidence of “mental impairment.”