Guardianships

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General Info

Guardianships of Minors and Incompetents who are residents of Erie County are filed in Erie County.

  • A guardian is someone appointed by the probate court to be legally responsible for a person and/or his property. The two bases for institution of a guardianship are because a person is incompetent or a minor (under the age of 18).
  • A guardian of a person is appointed to protect the physical custody of a ward and to provide for the ward's daily needs such as food, shelter, and medical care.
    • Adult Protective Services: Department of Job and Family Services become involved when they are informed that an adult over age 60 is not taking proper care of himself or herself. It is the court's responsibility to determine what is in that person's best interest. Sometimes it is necessary for the court to order admission to a hospital or nursing home.
  • A guardian of an estate is appointed to manage the property and financial assets of the ward for the ward's best interest such as paying bills and making investments. The probate court requires an account to be filed every two years in order to keep track of the ward's funds.

Incompetents

The Probate Division of the Court of Common Pleas has exclusive jurisdiction to appoint guardians. The court acts as an extension of the state for purposes of protecting the person and/or the estate of one who is found incapable of managing his own affairs. All the powers necessary to carry out the court’s appointment order are delegated to the guardian, who is an agent and, thus, under the control of the court.

An “incompetent person” is 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.

An “Emergency Guardian” may be appointed when no regular guardian was ever ordered and an incompetent or minor requires immediate action because of a significant risk to the ward’s person or estate. The emergency guardianship is a form of limited guardianship in that the court must specify in the letters of appointment exactly which powers have been granted. The emergency guardianship may last no longer than 72 hours.

Minors

Pursuant to Revised Code Section 2111.13

A guardian of a minor must protect and control the ward, use the ward’s estate to provide suitable maintenance and education for the ward, and obey the orders of the probate court concerning the guardianship. The court must approve all payments made from the ward’s estate for the support, maintenance, and education of the ward.

The guardian of a minor may authorize medical, health, or other professional care for the ward, unless the ward or an interested party objects to the court or the court orders otherwise.

A guardian of a minor is responsible for “control of such child and shall have the power to exercise parental control and authority over such child.” Revised Code Section 2151.411 describes the circumstances under with a guardian is liable for the acts of a delinquent child, including when the guardian must file bond.

A minor ward must attend school in the school district where the guardian resides. However, a guardianship WILL NOT be granted for school purposes only.

Conservatorships

A conservatorship is handled in the same manner as a guardianship except that the ward consents and can cancel the arrangements. It can be of the person or the estate or both. It is the same as what used to be called guardianship for physical reasons. If a person is unable to take care of himself or his property, he can have a conservator appointed to act for him. Any or all assets may be placed under conservatorship. This conservator must report to the court every two years, the same as guardians.

A conservatorship is a statutory creation that provides assistance in situations where a petitioner is physically infirm but not mentally incompetent. A person thus may voluntarily petition the probate court for appointment of a conservator to manage, for a definite or indefinite time, his person or any or all of his property or both. The petitioner has very broad discretion to define the type and scope of the conservator’s and the court’s powers; however, he may not limit any bond requirements or powers given directly to the probate court by the statute.

Pursuant to O.R.C. 2111.021, the petition for a conservator must state whether the person, the property, or both shall be subject to the conservatorship; it either must grant specific powers to the conservator and the court, or limit those granted by statute that are not desired, and it must name the proposed conservator. The probate court holds a hearing to determine whether the petition was voluntary and whether the proposed conservator is suitable. If it finds suitable proof of these facts, then it will order the conservatorship.

Generally, the rules and procedures of O.R.C. Chapter 2111 applicable to guardians will govern until termination of the conservatorship. Because the adult ward of a conservatorship is a competent person, the ward may ask the conservator to enter into specific transactions or make specific disbursements, including gifts to the conservator.

There are four means by which a conservatorship may be terminated: by a judicial determination of incompetency, by the death of the petitioner, by an order of the probate court, or by a written termination notice from the petitioner. A termination notice must be filed with the court and a copy served upon the conservator. All court records may be made confidential upon a motion and showing of good cause.

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