Guardianship

GuardianshipA guardianship is a proceeding in which a person handles the affairs of a minor or incapacitated adult. In these situations, the one being cared for is referred to as the ward while the adult becoming responsible is referred to as the guardian. There are two types of wards: minors and adults. In the case of a ward that is a minor, a guardian may be needed for a few different reasons, such as when a child needs to sell real estate or receives $10,000 or more, typically through inheritance or life insurance. This is different in the case of an adult ward. A guardian is needed for an adult ward when they have reached a point in which they cannot handle their own money or cannot make personal decisions.

Along with these two different types of wards, there are two different types of guardianship. The first is referred to as a guardianship of the estate. This type of guardianship is classified as such when it is dealing with handling money, whether this is money inherited to a minor or the financial assistance that is needed for an incapacitated adult.  The second type of guardianship is referred to as a guardianship of the person. This is different than a guardianship of the estate in the sense that, instead of the guardian overseeing the finances of the ward, they are overseeing non-financial affairs. For minors, this could mean that the guardian now acts as a parent, granting them legal permission in times that it is needed. In the case of a guardianship of the person for an adult ward, the role of the guardian may just be to help with the ward’s every day personal decisions as well as helping with legal matters.

There are many cases in which both type of guardianships are at play. This would mean that the guardian is overseeing the finances as well as the personal affairs of the ward. This is a very common occurrence.

How are guardians chosen?

There are a few different ways in which a person gets nominated to be a guardian. In the case of a minor ward that is over fourteen years old, the ward has the ability to nominate a guardian for himself or herself. In many cases of a minor ward, the guardian may have been nominated in the parents’ will. This can also occur through a power of attorney.

In the case of an adult ward, the person who is to be the ward may nominate the guardian for himself or herself. If this is not possible, the court will look to family members first.

What does it take to become a guardian?

It is not an easy process to become a guardian. Prior to every guardianship hearing, applicants must go through a variety of different checks to make sure that they are even fit to be a guardian in general. These procedures happen even before the first appearance in court. The guardian applicant must complete a full background check. If probate court does not approve this background check, the application will not continue. Given that the applicant passes the background check, they must next have a complete home approval. This means that someone from the court will inspect his or her home to make sure that it is a safe environment for the ward to reside. As it was with the background check, if the applicant does not have their home approved, they may not proceed. After these checks have been completed and passed, the applicant must supply annual financial reports.

What are the next steps?

After a guardian has been nominated and passed the background checks, they must file an official application with the courts. It is mandatory that this application is on court-approved forms and returned to the probate court in the county in which the ward currently resides. Upon completion of this application, the guardian nominee is ultimately agreeing to all responsibilities that may be given to them upon granted guardianship.

If the ward is an adult, they will be contacted by the probate court. A probate court investigator will visit the ward’s home. During this visit, the ward will be given notice of the hearing and an assessment of need will be done. This is the chance of the investigator to get a full understanding of what the role of the guardian will need to be.

What are the rights of the ward?

There are some very specific rights that are granted to the ward. These rights include:

  • The right to be present at all related hearings
  • The right to contest any applicant for guardianship
  • The right to present any alternatives to guardianship
  • The right to have a court reporter at all hearings
  • The right to have a friend or family member present at all hearings
  • The right to have an independent evaluation by a court appointed doctor
  • The right to be represented by an attorney

Upon granted guardianship, how much court supervision remains in place?

All guardians must regularly (schedule based on specific case) participate in the following actions:

  • They must provide a comprehensive list of all of the ward’s assets.
  • They must file an annual report of all of the expenses of the ward by providing receipts and expenditures.
  • A guardian of an adult must file a health report annually describing the physical state of the ward.
  • If the guardian fails to complete any of the steps listed above, they may be cited. This citation can result in a fine, jail sentence, or termination of guardianship.
  • An investigation by a government agency may need to be completed surrounding the administration of the guardianship.
  • If the guardian wants to use the ward’s money, they must get prior approval from the courts.

The guardianship may be terminated at any point upon failure to complete these tasks.

Probate courts oversee guardianships with much scrutiny, thereby making the proceedings complex and virtually assuring that an attorney is needed to represent the guardian.

Our office 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.

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