Summit County Common Pleas - Probate Division

This online publication is designed as a service to the public in order to provide a general understanding of the duties and procedures of the Probate Court in reference to Guardianship and Alternatives. This should not be considered as a legal reference. If you have a legal question dealing with Guardianship and Alternatives, an attorney should be consulted.

A guardianship is an involuntary trust relationship in which one party, called a guardian, acts for an individual called the ward. The law regards the ward as incapable of managing his or her own person and/or affairs.

A guardian is an individual appointed by the Probate Court to protect, make decisions for, and act for a person in need of a guardian. The person who needs a guardian is known as a ward. A guardian of an adult ward receives Letters of Authority to act as guardian after the Probate Court has determined at a hearing that:

A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
Incompetent: 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 he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state.
Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.
Minor Settlement: Natural parents do not have inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $10,000, the Court will require the appointment of a guardian of an estate.

The Court appoints the guardian. However, a minor over 14, or the parents by will, may suggest a guardian for a minor. In addition, an adult, while competent, may nominate a guardian to serve in the event of incapacity.

Application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion.
Application must include a statement of the guardian's willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.
The prospective ward, as well as the adult next-of-kin, are notified of the impending guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator.
An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator, which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship.
Formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands his duties.

The prospective ward has the right to be present at the hearing, to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.

The Probate Court is the superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:
Accountings: A guardian of the estate must file a written account with the Court annually as to the income and expenses of the ward's estate.
Reports: Guardians of minors and guardians of incompetent wards must file a written report annually. The report concerns the status of the ward and continued need for the guardianship.
Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian's fee, or remove the guardian.
Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.
Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvements to real estate, mortgaging real estate, selling assets of the ward, or settling any personal injury claim for the ward.
Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.

Person and/or Estate: A guardian may be appointed either a guardian of the person, a guardian of the estate, or both. A guardian of the person has custody of, controls, and protects, the person of the ward. A guardian of the estate controls and protects the assets or property of the ward.
Limited: A guardian may be appointed with limited powers to make restricted or specific decisions of the ward. The ward retains all powers not granted to the guardian.
Emergency: In an emergency in which significant injury to a prospective ward may occur unless immediate action is taken, the Court may appoint an emergency guardian for 72 hours.

A guardian's compensation and attorney's fees are set by Court rule, and must be approved prior to fees being paid.

A Court order will terminate a guardianship upon the death of a ward, upon the ward being adjudged competent or, in the case of a minor, upon reaching the age of majority eighteen (18). A Motion for termination of a guardianship of an incompetent may be filed 120 days after an appointment of a guardian, and once every year thereafter.

The law requires that no guardian should be appointed if less restrictive alternatives to a guardianship exist. Except for Representative-Custodial Payee, all alternatives involve a person who has capacity, or is competent, to grant powers. If the person does not have capacity when the powers are granted, they are subject to challenge and may be void.

A conservatorship is a voluntary trust relationship using guardianship laws and procedures as its basis, in which one party, known as a conservator, acts with Court supervision of a competent, physically-infirm adult, who is called a conservatee.

A conservatorship is based on the consent of the person for whom the conservatorship is to benefit. Thus, the conservatee decides who will serve as conservator, and what property and powers of the conservatee will be included in the conservatorship. In addition, the conservatee decides which of the guardianship duties and procedures the conservator follows and the Court enforces.

After a petition is filed, and the matter heard, the Court will determine if the petitioner is infirm, the petition is voluntary and the conservator is suitable. If the petition is granted, the Court, while the conservatorship exists, will apply the laws and procedures of Ohio pertaining to guardianship, except those excluded by the conservatee.

A conservatorship is terminated by judicial determination of incompetency, the death of the conservatee, the Order of the Probate Court, or the execution of a written termination notice by the conservatee.

A Power of Attorney is a written authorization for an agent to perform specified acts, either personal (health care) or estate (property) on behalf of a principal.

Durable: A Power of Attorney in which the powers granted remain in effect in the event of the grantor's incapacity or on being adjudged incompetent.
Springing: A Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent.
Health Care: A durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity.

Certain Powers of Attorney, such as those involving transfer of real property, required recording, and must be executed in a specific manner. It is recommended that legal advice be obtained before executing Powers of Attorney as an alternative to guardianship. In addition, there are few safeguards or protections from abuse or misuse of Powers of Attorney. For that reason, before execution, the agent of the Power of Attorney should be of good character, and be very carefully chosen.

An Intervivos trust is a confidential relationship involving a trustee, usually a bank, who manages only the property of a living person for the benefit of that person or someone else. Banks often require a minimum trust amount.

A Representative-Custodial Payee is an individual authorized to receive and expend Social Security, Supplemental Security Income, or Veteran's benefits, on behalf of the recipient, based upon a Court finding of mental incompetence or on submission of evidence to the Social Security or Veterans Administrations of mental or physical incapacity which impairs the ability to manage funds.

Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and therefore are limited in the advice they are permitted to give.