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following are common questions that have often been posed to our
office:
What is a Guardianship?
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A guardianship is an involuntary trust relationship
in which one party, called the guardian, acts for an individual
called a ward. The law regards the ward as incapable of managing
his or her own person and/or affairs.
What is a Guardian?
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A guardian is any adult person, association, or
corporation appointed by the Probate Court to assume responsibility
for the care and management of the person, the estate, or both,
of an incompetent person or minor child. A corporation can only
be guardian of the estate and not of the person.
Who Needs a Guardian?
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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 a mental or physical illness or disability,
or mental retardation, or as a result of chronic substance abuse,
that he is incapable of taking proper care of himself or his property
or fails to provide for his family or other persons for whom he
is charged by law to provide, or any person confined to a penal
institution within this state.
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- Minor: Any person under 18 years of
age who has neither 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.
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- 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 $10,000, the Court will
require the appointment of a guardian of an estate.
Who Chooses the Guardian?
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The Court appoints the guardian. However, a minor
over 14, or the parents by will, may suggest a guardian for a minor.
In addition, an adult, while competent, may nominate a guardian
to serve in the event of incapacity.
What Is the Appointment
Procedure? back to top
- 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 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, are notified of 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.
- 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 duties.
What Are the Rights
of the Ward? back to top
The prospective ward has the right to be present
at the hearing, to contest any application for guardianship, to
have a record of the hearing taken, to have a friend or family member
present at the hearing, and to be represented by an attorney. A
prospective incompetent ward has the additional right to present
evidence of a less restrictive alternative, and, if indigent and
requested, to have an attorney and independent expert appointed
at Court expense.
Does the Probate Court
Have a Supervisory Role in the Guardianship?
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The Probate Court is the Superior guardian, and
all guardians must obey all orders of the Court. The Court exerts
its supervisory authority through the following:
- Accountings: A guardian of the estate
must file a written account with the Court annually or biennially
as to the income and expenses of the ward's estate.
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- Reports: A guardian of an incompetent
ward must file a written report annually or biennially. The report
concerns the status of, and continued need for, the guardianship.
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- Citations: If a guardian fails to timely
file a report, inventory, or accounting, the Court may cite a
guardian to appear, and may fine, reduce the guardian's fee, or
remove the guardian.
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- Investigations: To determine if a guardianship
is functioning properly, the Court may order an investigation
by a Court Investigator, Law Enforcement Agency, Adult Protective
Service, or other County Agency.
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- Prior Approval: The guardian must first
obtain approval of the Probate Court before entering into contracts
or leases, making improvement to real estate, mortgaging real
estate, selling assets of the ward, or settling any personal injury
claim for the ward.
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- Removal: The Court may, at any time,
in the best interest of the ward, remove the guardian.
What Are The Types
of Guardianships? back to top
- Person and/or Estate: A guardian may
be appointed either a guardian of the person, a guardian of the
estate, or both. A guardian of the person has custody of, controls,
and protects, the person of the ward. A guardian of the estate
controls and protects the assets or property of the ward.
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- Limited: 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.
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- Emergency: 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.
What are the Fees for
Guardians and Attorneys? back to top
A guardian's compensation and attorney's fees
are set by Court rule, and must be approved prior to fees being
paid.
How Do I Proceed With
Terminating a Guardianship? back to top
A Court order will terminate a guardianship upon
the death of a ward, upon the ward being adjudged competent, or,
in the case of a minor, upon reaching the age of majority (18).
A Motion for termination of a guardianship must be filed with the
Court.
What
are the differences between custody through Domestic Relations or
Juvenile Court and guardianship through Probate Court? back
to top
Domestic relations court, juvenile court, and
probate court can all make decisions concerning the care and custody
of children. A domestic relations court can issue orders with respect
to the custody of children as part of a divorce or dissolution.
A juvenile court has exclusive jurisdiction over juvenile traffic
offenders, and delinquent, unruly, abused or neglected children
and the custody of children who are not wards of another court.
A probate court may appoint guardians for children without parents
or whose parents are unsuitable. A guardian would then have the
custody of the child and provide for the child's support.
The court to first obtain jurisdiction invalidates
the power of another court to issue a custody order. Therefore,
if there is a domestic relations order or existing juvenile court
order, an individual may not seek guardianship through probate court.
Prepared by the Ohio Association
of Probate Judges
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