Guardianship
A guardian may be appointed for either an incompetent individual or a minor if the court determines that certain conditions are met:
- 1. Incompetent
- This includes any person who is mentally impaired due to a mental or physical illness, disability, or chronic substance abuse and is therefore incapable of taking care of themselves or managing their property or family. Additionally, anyone confined to a correctional institution within the state is considered to have a legal disability and may also be deemed incompetent. A guardianship can be established for the personal care and/or estate of an incompetent individual.
- 2. Minor
- A minor is defined as anyone under the age of 18 who lacks a father or mother, or whose parents are considered unsuitable for custody. A guardianship can be created for a minor’s personal care and/or estate. When it comes to minor settlements or inheritance, natural parents do not automatically have the right to manage their children's finances or settle personal injury claims on behalf of their minor child without court approval. If a settlement exceeds $25,000, the law requires the appointment of a guardian for the minor's estate.
While the court ultimately appoints a guardian, a minor who is 14 years or older may nominate someone to be their guardian. Additionally, a child's parents can nominate a guardian by including instructions in their last will and testament. A competent adult may also nominate a guardian to take over in the event of their future incapacity.
To initiate guardianship, an application must be filed in the probate court of the county where the proposed ward resides.
The application should include a statement affirming the guardian's willingness to serve in that capacity. Additionally, a bond may be required. If the proposed ward is deemed incompetent, the application must also contain a statement regarding the ward’s mental and physical condition from a physician, psychiatrist, or licensed psychologist.
The proposed ward and their family members will be notified about the guardianship proceedings, including the date and time of the hearing. For cases involving incompetency, the court’s investigator will also serve notice to the proposed ward. The investigator helps the court assess whether a guardianship is necessary.
During the hearing, the court will determine whether guardianship is needed, evaluate the suitability of the proposed guardian, and ensure that the guardian understands their responsibilities.
The proposed ward has the right to be present at the hearing, contest any application for guardianship, have a record of the hearing created, invite a friend or family member to be present, and to have legal representation. Additionally, a proposed incompetent ward has the right to present evidence regarding less restrictive alternatives to guardianship. If the ward cannot afford an attorney and requests one, the court may appoint an attorney and an independent expert at the court's expense.
The probate court is the ultimate authority over guardianship matters, and all guardians must comply with the court's orders. The court maintains its supervisory power through various legal procedures, many of which involve fees.
- Accountings
- A guardian responsible for the ward's estate must submit a written account to the court every 2 years detailing the income and expenses related to the ward's estate.
- Reports
- A guardian of an incompetent ward is required to file a written report every two years regarding the status of the ward and the ongoing necessity of guardianship.
- Citations
- If a guardian fails to submit an accounting, inventory, or report on time, the court may issue a citation compelling the guardian to appear in court. The court may also impose fines, reduce the guardian's fees, or remove the guardian from their position if necessary.
- Investigations
- Court investigators may conduct periodic follow-up investigations. Any issues or concerns identified during these investigations can be addressed and resolved.
- Removal
- The court may remove a guardian at any time if it is in the best interest of the ward. Guardians are also required to report any change of address for either themselves or the ward.
A guardianship will terminate upon the death of the ward, when the ward is declared competent, or in the case of a minor, when the ward reaches the age of majority (18 years old). If the ward relocates to another county within Ohio, the guardianship may be transferred to the probate court in that new county.