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Frequently Asked Question About Guardianship:

Alternatives To Guardianship

 The following are common questions that have often been posed to our office:

Conservatorship

Power of Attorney

Other

NOTE: Except for Representative-Custodial Payee, all alternatives involve a person who has capacity, or is competent, to grant powers. If the person does not have capacity when the powers are granted, they are subject to challenge, and may be void.

What is a Conservatorship? back to top

  • A conservatorship is a voluntary trust relationship using guardianship laws and procedures as its basis, in which one party, known as a conservator, acts with Court supervision for a competent, physically infirmed adult, who is called the conservatee.
  • Click here to access forms for a Conservatorship

    Who Chooses the Conservator? back to top

    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 conservatee 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? back to top

    After a petition is filed, and the matter 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? back to top

    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? back to top

    A Power of Attorney is 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 Powers of Attorney back to top

    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.

    Springing: A Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent.

    Health Care: A durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity.

    What are the Execution of Powers of Attorney? back to top

    Certain Powers of Attorney, such as those involving transfer of real property, require recording, and must be executed in 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 very carefully chosen.

    What is an Intervivos Trust? back to top

    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 back to top?

    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 submission of evidence to the Social Security or Veterans Administrations of mental or physical incapacity which impairs management of the funds.

    Prepared by the Ohio Association of Probate Judge