Guardianships

Guardianships

Although proper estate planning with the use of power of attorney documents usually eliminates the need for guardianships, under certain circumstances, a guardianship cannot be avoided.  In these circumstances, we can walk you through the process from application to appointment and can help you fulfill your continuing obligations to the Probate Court.

One is a guardianship appointment for a minor.  The other is a guardianship appointment of an incompetent adult.  A guardianship for a minor may be necessary if a minor inherits money directly or receives money from a settlement or a court case.  A guardianship may also be necessary if the child’s parents are deceased or unable to properly care for the child.  A guardianship for an adult may be necessary if the adult is no longer physically or mentally able to care for himself/herself or his/her affairs.  Even if an adult has the appropriate powers of attorney, if he or she needs assistance and refuses, a child or other family member or friend may need the individual to be legally declared incompetent.  This can occur if an elderly individual needs care and refuses to accept this reality.  This is a last resort, but, unfortunately, sometimes necessary.

A guardianship begins with an application to the Probate Court.  The applicant must be a resident of the State of Ohio, assuming the proposed ward is an Ohio resident.  The applicant can ask the court to appoint the applicant guardian of the person(responsible for the ward’s care, safety and welfare), guardian of the estate (responsible for managing  the ward’s assets) or, most likely, guardian of both the person and estate of the proposed ward.  Along with the application, a statement from the ward’s physician must be included recommending that a guardianship be granted.  A hearing is scheduled, next of kin located within the state must be notified, and the proposed ward must be notified of the hearing as well as his or her rights.  A court investigator appointed by the court also visits the proposed ward and presents his or her own independent findings to the court.  A background check is also done on the proposed guardian.  A hearing is then held to determine if a guardianship is necessary.  If the court finds that this is so, the court makes a determination if the applicant is an appropriate individual to serve as guardian.

Once appointed, the guardian must file an inventory with the court listing the ward’s assets.  The guardian then must file biannual reports with the court documenting the status of the ward’s funds and the continuing necessity for the guardianship.  The guardian cannot under any circumstances spend the ward’s money without the court’s prior written approval.  If the ward has assets, the guardian must be bonded in order to protect those assets for the ward.  Once the guardianship is no longer necessary, the court will terminate the guardianship.

We do everything possible to assist our clients in proper planning so that a guardianship is never necessary.  However, as stated above, certain events may occur that necessitate the appointment of a guardian.  If so, proper representation is necessary to ensure that the ward is protected and, also, that an appropriate guardian is appointed to take care of the ward and his or her affairs and assets.

The majority of the guardianship matters at Holzfaster, Cecil, McKnight &  Mues are overseen by Attorney Joseph E. Balmer, who is one of only 20 Dayton area lawyers certified by The Ohio State Bar Association as a specialist in estate planning, trusts and probate administration.  Click here to read Joe’s biography page.

Please don’t hesitate to call us at (937) 293-2141 or email us by using our form below if you want to discuss a guardian or any elder law issues.  Additionally, we have an emergency phone number, (937) 760-4357, that is answered by one of our lawyers around-the-clock.