GUARDIANSHIPS: What is it, When is it necessary, and How to become one

Senior citizens are inherently at a higher risk of fraud and financial abuse.  Fraud and financial scams targeting seniors are widespread.  Estimates put it at up to $3 Billion a year.  While it may seem like con artists and thieves are the common perpetrators of heartless crimes targeting senior citizens, it often is someone else, someone much closer.  In order to protect against the elder against close friends and family trying to take advantage, a guardianship may be needed.

Watching an elderly parent or relative struggle with everyday tasks can be extremely difficult.  When elderly individuals are unable to care for themselves, whether it is their basic personal, financial, or medical needs, and a “friend” or family member swoops in like a vulture, it may be time to seek appointment of a guardian.  While complicated at times, this article will guide you through the Ohio guardianship process.

I. What is a Guardianship?

First, it is important to note some basics about guardianships in Ohio.  Guardians are appointed by the probate court.  Each county has their own specific probate court that will appoint a guardian, upon application and approval.

There are three types of guardians in Ohio: (1) guardian of the person, (2) guardian of the estate, and (3) guardian of the person and the estate.  Each category is quite different from another with different duties and requirements.

While the probate court remains the “superior guardian” of the ward, the guardian has many responsibilities.  A guardian of the person handles the ward’s personal affairs, including but not limited to their medical affairs and personal needs.  These responsibilities can also include decisions regarding where the ward will live or what kind of medical treatment they will seek.  On the other hand, the guardian of the estate specifically handles the ward’s finances, including the allocation of the ward’s funds for bills and providing money for the ward to spend.  The guardian of the person and the estate is in charge of handling both the personal affairs of the ward, along with the financial affairs as well.  In all guardianships, regardless the kind, the guardian is the fiduciary of the ward, meaning that they are responsible for protecting the ward’s interest, maintaining the ward’s wellbeing, and supporting the ward’s wishes when they are feasible and not harmful to the ward.[1] A guardian is not allowed to use the ward’s assets for anything but the ward.

II. When is a Guardianship necessary?

When an elder is unable to take care of their own personal, financial, or medical needs, and a “friend” or family member swoops in like a vulture, a guardian should be appointed.  A less restrictive method of assistance is a power of attorney.  A power of attorney is a written authorization giving one person the legal authority to act for another person, typically regarding financial affairs like bank accounts and investments.  But often it is the greedy friend or family member who acquires the power of attorney!  A guardianship is much more expansive and covers a broad range of duties, including the responsibility of dealing with personal affairs, and protects against someone using a power of attorney to benefit themselves.

III.  How to Become a Guardian?

Before becoming a guardian, there are many hoops to jump through.  First, regardless of the county, the probate court will conduct a criminal background check on the applicant, which may have a fee attached.[2]  In some counties, the court will go even further and require a credit check as well.

The most common way to become a guardian is by filing an application with the probate court in the county which the elderly person resides.  In Columbus, the Franklin County Probate Court.  In Cleveland, the Cuyahoga County Probate Court.  In Cincinnati, the Hamilton County Probate Court.  In Dayton, the Montgomery County Probate Court.  In Toledo, the Lucas County Probate Court.

First, the applicant must fill out a guardianship application in the county in which the ward lives.  These applications are usually available online on the counties’ court’s website.  Usually courts prefer that the guardian and ward both live in Ohio and even in the same county to make things easier between the ward and guardian.  To be guardian of the estate, the guardian must reside in Ohio.  On the application, the applicant must also include a list of the ward’s relatives, so that the court can alert the ward’s next of kin that an application has been filed and when the hearing will be scheduled.

Next, the ward must be proven incompetent.  An expert evaluation by an appropriate medical professional is necessary.  Incompetence means “any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide, or any person confined to a correctional institution within this state.”[3]  The burden is on the applicant to prove that the elderly individual is incompetent.

To demonstrate incompetence, a medical professional, such as a medical doctor or a psychologist or psychiatrist, will meet with the elderly individual in order to evaluate their physical and mental condition.  After completion of the exam, the medical professional will determine whether or not the elderly individual is competent or incompetent.  If the medical professional decides that the individual is in fact incompetent, they must then complete the Statement of Expert Evaluation and submit that completed form to the probate court.  Upon submission, the court will then conduct its own investigation of the individual by sending a court investigator out to speak with the proposed ward.

At the hearing, the court will listen to testimony, and review the application and other relevant documentation submitted to the court, including medical reports and investigation reports.[4]  After reviewing all of the information, the court will decide whether incompetence has been proven.  If that occurs, the court then will determine if “less restrictive means” are available to assist the elderly person, other than by ordering the appointment of a guardian.  The existence of a power of attorney can be such a “less restrictive means”.  But if the applicant proves that the power of attorney is held by a person who is using it for their own benefit, then the court usually will appoint a guardian.

If the guardian is appointed, the guardian shall take the Oath of the Guardian for the court record and the court will send the guardian Letters of Guardianship detailing the appointment.[5]

There is also annual training required for all guardians.  This training is a six-hour course and is mandatory.[6]  The training is hosted by the Supreme Court of Ohio and boasts the fundamentals associated with guardianship.  After the initial training, guardians must attend three hours of continuing education every year and report completion of the course to their local probate court by the first of each year.[7]

While some guardians can charge a fee, these fees must be reasonable and approved by the probate court prior to payment.[8]  Additionally, an individual who is already an employee of a nursing home, a transportation provider, or nurse and other caregivers cannot become a guardian to the ward, due to conflicts of interest.  To avoid undue influence, service providers cannot become guardians of a ward.[9]

IV.  Conclusion

Watching an elderly parent or relative struggle with everyday tasks can be extremely difficult.  While complicated at times, guardianship may be the best route for you and your loved one.