GUARDIANSHIPS

LEGAL PRACTICE IN THE PROBATE COURT

Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and, therefore, are not permitted to give advice.

A Guardianship is an involuntary trust relationship in which one party, called the 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.

WHO NEEDS A GUARDIAN?

A Guardian may be appointed for either an incompetent or minor, which are defined by statute as:

• Incompetent – any person who is so mentally impaired as a result of mental or physical illness or disability, as a result of intellectual disability, 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 the state.
• Minor – any person under 18 years of age who has neither a father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.
• Minor Settlement - natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $25,000.00, the Court will require the appointment of a Guardian of the Estate.

TYPES OF GUARDIANSHIPS

• A Guardianship may be established for the Estate Only, in the circumstance where the Guardian is responsible for the Ward's assets. In this case, the person applying to be Guardian must be an Ohio resident.
• A Guardianship may be established for the Person Only, where the Guardian has responsibilities to assure the personal needs of the Ward are met. In this case, it is not necessary for the Guardian to be an Ohio resident.
• A Guardianship may be established for both the Person and Estate of the Ward. The person applying to be the Guardian of the Estate must be an Ohio resident.
• A Guardianship may be established for limited purposes. 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.
• A Guardianship may be established on an emergency basis. 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.

TYPICAL APPOINTMENT PROCEDURE

• Application for Guardianship is filed in the Probate Court of the county of the Ward’s residence by an interested party, or on the Court’s own Motion.
• Application must include a statement of the Guardian’s willingness to perform as Guardian, a bond as required by law, and, in the case of a Prospective Incompetent Ward, a Statement of Expert Evaluation of the Ward’s mental and physical condition from a treating Physician, Psychiatrist, or licensed Psychologist.
• The Prospective Ward, as well as the adult next of kin, is notified of the impending Guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the Prospective Ward by a Court Investigator.
• An investigation is conducted, in the case of a Prospective Incompetent Ward, by a Court Investigator, which includes an interview with the Prospective Ward in order to assist the Court in determining the advisability of Guardianship.
• A criminal background check is completed on the applicant of the proposed Ward.
• A formal hearing is conducted by the Judge or Magistrate to determine if a Guardianship is necessary, the Guardian is suitable, and the Guardian understands his or her duties.

OHIO ADULT GUARDIANSHIP EDUCATION PROGRAM

The Ohio Supreme Court adopted new rules governing Guardianships. In keeping with compliance of Ohio Court Rules of Superintendence Rule 66.06/66.07 educated and knowledgeable Guardians are the cornerstone. SEARCH HERE for the Supreme Court of Ohio website regarding adult Guardian educational programs and frequently asked questions.

FORMS

The Supreme Court of Ohio has developed Standard Probate Forms to assist in filing a GUARDIANSHIP. If you would like to use their forms SEARCH HERE.

In addition to the Standard Probate Forms located on the Supreme Court website, Sandusky County Probate Court has developed local forms to assist in ADMINISTRATION OF A GUARDIANSHIP, EMERGENCY GUARDIANSHIP, and SUCCESSOR GUARDIANSHIP filings.

The local forms for an ADMINISTRATION OF A GUARDIANSHIP are as follows:

Affidavit of Final Account
Affidavit of Heir or Beneficiary Whereabouts Unknown
Affidavit of Partial Account
Application to Admit Foreign Record Guardianship
Application & Entry to Dispense with Statement of Expert Evaluation
Computation of Guardian Fees
Guardians Application and JE to Sell Personal Property
Guardianship Application to Extend Time
OCN Guardian

The local forms for an EMERGENCY GUARDIANSHIP are as follows:

Affidavit of Applicant
Application for Emergency Guardianship
Appointment of Emergency Guardian
Emergency Fiduciary’s Acceptance
Emergency Guardian Oath
Emergency Next of Kin
Motion & Entry to Extend Emergency Guardianship
OCN Guardian

The local forms for a SUCCESSOR GUARDIANSHIP are as follows:

Application Successor Guardian
Appointment of Successor Guardian
OCN Guardian
Successor Guardian Fiduciary’s Acceptance
Successor Guardian Oath
Successor Guardianship Next of Kin
Successor Guardianship Waiver of Notice

FREQUENTLY ASKED QUESTIONS

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 the 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 Conservator 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 is 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 A 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 POWER 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. The Power of Attorney is effective immediately.
• Springing – a Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent. Incapacitation of the grantor must be proven in order for the Power of Attorney to become effective.
• Health Care – a durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity.

HOW DO YOU EXECUTE POWERS OF ATTORNEY?
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 be very carefully chosen.

WHAT IS AN INTERVIVOS TRUST?
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.

WHAT IS A REPRESENTATIVE-CUSTODIAL PAYEE?
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 a submission of evidence to the Social Security or Veteran’s Administration of mental or physical incapacity which impairs management of the funds.