Ohio Guardianship Proceedings

guardianship lovettguardianship lovett 2According to Chapter 2111.01 of the Ohio Revised Code, a guardian is “any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or both of an incompetent or minor.” A guardian acts in a fiduciary capacity and has a duty to act in the best interest of the adult or minor (referred to as the “ward”) who needs a guardian.

The probate court appoints guardians and monitors the activity of the guardian to ensure they fulfill all of the duties under Ohio’s guardianship laws. Probate courts oversee guardianship with much scrutiny thereby making the proceedings complex and virtually assuring that an attorney is needed to represent the guardian.

Lovett & Lovett Co., LPA has handled guardianships for adults and minors in several counties in Ohio. If you believe that someone you care about needs a guardian, contact us. We can help.

Why is a guardian needed?

For adults, the need for a guardian arises when the adult can no longer handle his or her money or make personal decisions. For persons younger than eighteen, a guardian may be necessary to sell real estate but in most cases, a guardian is appointed when a child receives $10,000 or more.  The source of these funds is usually an inheritance or a benefit paid by an insurance company.  By law, a minor over the age of 14 may suggest to the probate court a guardian but the ultimate decision remains with the probate court.

Types of Ohio Guardianships

There are three types of guardianships in Ohio.  They type of guardian that is appointed depends on the circumstances and the needs of the person to be protected.

Guardianship of the Estate

A guardianship involving money is called a “guardianship of the estate.”  The guardian handles the financial affairs of the ward including paying the ward’s bills and living expenses, making necessary purchases for the ward, and protecting the ward’s money in safe investments or trusts.

Guardianship of the Person

A guardian who handles a person’s non-financial affairs is called a “guardian of the person.” The ward is either a minor who is not of legal age or an incapacitated adult who is unable to make decisions on his or her behalf.  The guardian makes personal decisions for the ward including, but not limited to, decisions regarding healthcare, where the ward resides, decisions about education, and extra-curricular activities.

Guardianship of the Person and Estate

In some cases, the probate court will appoint a guardian to make personal decisions for the ward in addition to managing the finances of the ward.

Duties of the Guardian

The duties of the guardian depend on the type of guardianship granted.

In general, a guardian of the person:

  • Is responsible for the personal needs of the ward including making decisions for the ward and providing for the ward’s needs (i.e. food, shelter, clothing, etc.);
  • Must communicate and visit the ward on a regular basis;
  • If the ward is incompetent, the guardian must file a Guardian’s Report with the probate court every two years reporting the details of the ward’s condition;
  • The guardian must obey all orders of the Court;
  • The guardian must deposit the ward’s Will with the Court; and,
  • The guardian must act in the best interest of the ward and allow the ward to participate in personal decisions if the ward is capable.

A guardian of the estate has additional duties due to the financial aspect of the appointment.  These duties include:

  • Locate and preserve the ward’s assets;
  • File an inventory of the ward’s assets with the court within 90 days of the appointment;
  • Must be bonded;
  • File applications for authority to spend the ward’s assets prior to spending the money;
  • Maintain accurate books and records;
  • File annual accountings with the court;
  • File the ward’s income tax returns, if applicable;
  • Invest any surplus guardianship funds as allowed by law; and,
  • Sign all documents as guardian of the estate to limit personal liability.

Application Process to Appoint a Guardian

In order to be appointed as a guardian, you must file an application with the appropriate probate court.  The ward and any other interested party will receive notice of the application and the hearing date.  At the hearing, the court will hear testimony and make a decision regarding the appointment of a guardian.

Lovett & Lovett Co., LPA has helped many families as they go through the process of appointing guardian.  Our attorneys also represent guardians to ensure the guardians understand their duties and fulfill those duties according to Ohio guardianship laws.