Most people understand the concept of a guardian when talking about minor children. Minor children need consent from parents or their guardian to participate in sports and receive medical treatment.
But beyond minor children, when is a guardianship needed? What does the guardian of an adult do?
When is a guardianship needed?
In most instances, an adult may need a guardian if he or she is unable to make financial, medical, and other life decisions for himself or herself. This can occur due to a sudden illness or injury that renders the individual unable to act, or it can be a result of dementia or Alzheimer’s. Sometimes, old age can affect someone’s judgment to the point where they cannot care for themselves any longer.
If there are durable financial or health care powers of attorney in place, a guardianship may not be necessary. So long as another person has legal authority to act on the individual’s behalf, a guardianship can usually be avoided. If there is no power of attorney, or if a power of attorney is not being honored, a guardianship may be necessary.
It is important to note that in a power of attorney, both financial and health care, an individual can nominate a guardian. If, in the future, a guardian is needed, the probate court will give preference to that person. Of course, the nominated person must meet the requirements and be a suitable person to become guardian.
How is a guardianship created?
In Ohio, a guardianship results in a legal declaration of incompetency. Under Ohio law, “incompetent” means “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 the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide, or any person confined to a correctional institution within this State.”
Because guardianship is a major alteration of a person’s rights, the probate court will follow a specific application and hearing procedure before appointing a guardian.
First, it is important to note that there are two types of guardianships: guardian of the estate and guardian of the person. A guardian of the estate will be responsible to handle the incompetent person’s (the ward’s) property and money. The guardian of the estate handles bills, banking, real estate, insurance, taxes, etc. A guardian of the person will be responsible for the ward’s well-being and health care. These responsibilities include making medical decisions regarding medications and physicians, as well as deciding placement and other living arrangements for the ward.
One person can become guardian of the person and estate for the same ward. It is also possible to have two separate individuals be guardians for the same ward.
Any adult can apply to become guardian of a proposed ward. To become guardian of the estate, however, the applicant must be a resident of Ohio. Guardians of the person can reside in any state.
The application requires information about the guardian, the proposed ward, and the proposed ward’s family. The guardian must submit to a background check. Applicants to become guardian of the estate must also get bonded.
The proposed ward is entitled to notice of the filing of the application. Usually, a probate court employee will visit the proposed ward to serve the notice and to document observations about the situation.
The proposed ward’s next of kin are also entitled to notice of the filing of the application. If the next of kin are all involved or agreeable to the guardianship, they can waive their right to receive notice.
In addition to providing information to the court and serving the proposed ward and next of kin, a licensed physician or a licensed clinical psychologist must evaluate the proposed ward and submit a written evaluation. In that evaluation, the doctor or psychologist will form an opinion as to whether a guardianship is necessary for the individual.
After all application documents have been filed, the probate court will schedule a hearing on the appointment. The proposed ward and next of kin may appear at the hearing. The court will consider the application materials, the court investigator’s report, the physician’s statement, and any testimony given during the hearing.
If the court believes that the individual is incompetent and needs a guardian, an order will be issued accordingly. Further, if the court believes the applicant is a suitable person to be guardian, the applicant will receive a formal appointment from the court. It is possible for the court to decide that a guardian is necessary but that the applicant is not the appropriate person to become guardian. In that case, a different relative or friend may be appointed, or the court may prefer an unrelated third party. Some attorneys frequently serve in the role as a third-party guardian.
Once an individual is under guardianship, he or she loses any rights to make decisions for himself or herself. The guardian becomes the sole decision maker regarding the individual’s finances, health care, and other issues. For an easy comparison, the guardian takes on the role of a parent with respect to the ward.
If a ward’s incapacity is temporary, it is possible to terminate the guardianship. This may occur if the guardianship was necessary due to an accident or injury that does not permanently affect the individual’s decision-making ability.
In other states, guardianships may be called conservatorships. In Ohio, however, a conservatorship is a specific arrangement for physically disabled individuals. In a conservatorship, the individual is competent but needs assistance with finances and medical decisions due to a physical infirmity. Although the process to appoint a conservator is similar to the process to appoint a guardian, a major difference is that in a conservatorship, the individual requests the assistance of the conservator and retains the right to terminate the conservatorship at any time. The individual can still make decisions, but the conservator assists the individual in carrying out those decisions.
Guardianships and conservatorships vary in every situation. Sometimes the family agrees, and things go smoothly. Other times there is family tension and emotions run high. If you are considering guardianship or have been served with notice of guardianship for a loved one, it is important to hire legal counsel who can represent your interests so that the potential ward is properly taken care of.