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Perhaps you are considering a guardianship in Kettering, Ohio. This guardianship could be for a person who is unable to manage his or her affairs without significant levels of assistance. The person could have a mental disability, a physical illness or disability, a mental illness, or a chronic substance abuse problem which would precipitate a guardianship procedure. The person who has a guardian appointed to watch over their finances and physical health, as well as their moral and mental well-being, is known as a ward.
The person appointed to do those things is called a guardian. In the state of Ohio, probate courts have exclusive jurisdiction over guardianship cases, therefore have the authority to appoint or remove a guardian. The guardian appointed must always serve the best interests of the ward—a guardian may be removed for neglect of duty, failing to follow the court’s orders, fraudulent conduct or incompetency.
A guardianship requires an expert evaluation from a licensed clinical psychologist or a physician. There are several types of guardians in the state of Ohio:
- Emergency guardianship—a guardian is appointed without prior notice to the ward and without a formal hearing when there is an emergency situation in which a guardian is necessary to prevent injury to an incompetent person. After a hearing, an emergency guardianship may be extended up to an additional thirty days.
- Limited guardianship—A probate court may appoint a guardian over only a specific part of a person’s life over which there is incompetency as well as need.
- Guardianship of the estate—the guardian has authority to make all financial decisions for the ward.
- Interim guardianship—this situation could occur when a former guardian resigns or is removed, and when the welfare of the ward requires that a guardian be appointed immediately. The interim guardian will serve until a guardian is appointed, or the interim guardian could be appointed as permanent guardian.
- Guardianship of the person—the guardian has the authority to make personal day-to-day decisions on behalf of the ward, other than financial decisions. These decisions can include educational choices, living arrangements, medical care, recreation choices, and choices regarding food and clothing.
- Guardianship of the estate and person—this type of guardianship allows the guardian to make virtually all decisions for the ward, including financial and day-to-day personal decisions.
Limited guardianship should be used whenever possible, instead of full guardianship. Guardians are required to prepare and submit regular reports to the probate court, noting any significant changes in the mental or physical condition of the ward. Every time the ward sees a doctor, this must also be noted in the reports. A corporation cannot be appointed as a guardian, except in the case of the Advocacy and Protection Services, Inc.
How is a Guardian Appointed?
Generally, a family member or other person close to the person who may be in need of a guardian can ask the court to act to protect this person. If the person seems to be unable to manage his or her own affairs, he or she may be judged incompetent, therefore in need of a guardian. It is important to remember that because guardianship removes a person’s ability to make their own choices, other options should be explored before the step is taken to appoint a guardian. There could well be less restrictive options which could protect the person in the same way a guardian would—in other words, guardianship is a very serious step. Some of those less restrictive options might include:
- An authorized representative for the person when their only significant income is derived from government benefits.
- A trust could be used instead of a guardianship to handle finances for a person who has difficulty managing money.
- An adult with developmental disabilities may have the Adult Protective Services ordered to provide protective services if the adult lacks the capacity to protect himself or herself.
- If the person needing protection from harm is over the age of 60, he or she may receive this protection from Adult Protective Services for the Elderly.
- An Order of Protection might be sufficient to protect a person from another person causing them harm.
What Rights Does the Ward Retain?
Once a Kettering, Ohio court has appointed a guardian for a ward, depending on which type of guardianship is determined, the ward may lose many of his or her rights to make decisions. Some areas of a person’s life, however, may involve fundamental rights. This means that, whenever possible, decisions involving the ward’s reproductive rights should be decided by the ward. Further, in most cases, a ward still has the right to vote. A guardian is not allowed to execute a power of attorney or make a will for the ward, and while a guardian may be able to admit the ward to a psychiatric hospital or a development center, the ward has the right to ask a Kettering, Ohio court to review such an admission.
If you are contemplating a Kettering, Ohio guardianship, the experienced estate planning attorneys at Lovett & House Co., LPA can help you navigate the legalities of the situation, answering any questions you may have.