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A guardian is someone appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a ward. The ward could be a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. The guardian could be an individual (usually related to the ward) or a financial institution or an association. Under Ohio law, a guardianship is an involuntary proceeding. Typically it is started by family members asking the probate court to protect someone who appears to be incompetent. Once appointed, a guardian must answer to the court for providing proper care and management of the ward’s affairs in the ward’s best interests.
All guardians must obey the orders of the probate court by which they were appointed. The probate court is referred to as the “superior guardian” because it has ultimate supervision or all aspects of the guardian’s actions. Ohio law provides for different types of guardianships (listed below).
A guardian of the person is appointed to protect a ward and to provide for the ward’s day-to-day maintenance. Maintenance means providing food, shelter, clothing, health care and other necessities. It includes responsibility for the education of a minor ward as required by law, and making decisions about medical treatment and other professional services the ward may require.
A guardian of the estate is appointed to manage the property and financial assets of the ward for the ward’s best interests. These duties can be very complicated and require intense scrutiny from the probate court. Often it is necessary for the guardian to apply to the court to obtain authority to expend money on behalf of the ward.
Before being appointed, an applicant for guardian of the estate must provide the court with a fiduciary bond equal to double the probable value of the personal estate and of the annual real estate rentals that will come into the hands of the guardian. Bonding companies are reluctant to issue bond for the guardian unless the applicant has not been convicted of a serious crime or does not have good credit.
A limited guardian is a guardian whose powers are specifically limited by the probate court. A ward for whom a limited guardian has been appointed retains all rights in all areas not covered by the Order of Limited Guardianship.
An emergency guardian is a guardian appointed by the probate court without a formal hearing when an emergency exists and a guardian is necessary to prevent injury to the person or estate of the ward. It is very unlikely that the court will appoint an emergency guardian without extreme facts to support it.
A conservator is a person appointed by the probate court at the request of a mentally competent adult who is physically unable to manage certain aspects of his or her life. The person requesting the appointment of a conservator specifies the powers requested on the Petition for Conservatorship. Sometimes a conservatorship is referred to as a “court supervised power-of-attorney” because the appointment of a conservator is not considered as evidence of “mental impairment.”
After being appointed by the probate court, the guardian of the estate of a ward must file an inventory of the ward’s assets. This should be done within three months after appointment. The inventory must list all real and personal property of the ward and the annual value of the rental of any real estate.
A guardian of the estate must file an account in the probate court at least once every year. A final account must be filed within 30 days after the termination of the guardianship. This account must include an itemized statement of all receipts, disbursements and distributions made from the ward’s estate. All transactions must be verified by vouchers or proof, unless a corporate fiduciary is involved. The accounting must also contain an itemized statement of all funds, assets and investments in the guardian’s hands at the end of the accounting period, and any changes in investments since the last account was filed. Actual securities and passbooks or bank statements must be exhibited to the probate court for examination, and the account must be made on the signature and oath of the guardian.
A guardian of the person of an incompetent must file a guardian’s report with the probate court at least once a year. The guardian’s report must be made on a court-prescribed form, and must contain a great deal of specific information, including a list of the number and nature of contacts with the ward over the period covered by the report; any major changes in the ward’s physical or mental condition observed by the guardian; the guardian’s opinion as to the necessity for continuing the guardianship and the adequacy of the care that the ward is receiving; and the date that the ward last saw a physician. The purpose of the report is to assist the probate court in determining if the guardianship should be continued. The court may appoint an investigator to verify the report. An updated statement of expert evaluation must accompany the guardian’s report, unless waived by local court rules, further advising the court as to the need for continuing the guardianship.
A probate court guardianship is likely the most complicated legal procedure most people will ever encounter. This is especially true if the guardian is handling the finances of the ward. If you or someone close to you needs information on how to set up a legal guardianship, contact an experienced probate lawyer in your county.