Hickman Lowder

We meet the lifetime legal needs of children and adults with disabilities, the elderly, and their families.

Guardianship Can Be a Helpful Tool

| May 8, 2020 | Guardianship

With all the changes that have taken place due to the COVID-19 pandemic, including social isolation and broken routines, we are finding that some people who were once “stable” and able to manage their daily affairs safely are now unable to do so.   They may be eloping, refusing food or medication, or maybe even having thoughts of suicide.  For some people, guardianship is a helpful tool.

Guardianship is necessary when an adult is incompetent to manage his/her own affairs, perhaps due to mental health issues or some type of cognitive impairment.   If the person over whom guardianship is being sought (also called the Ward) needs help managing money, then you could seek Guardianship of the Estate.   If the Ward needs help making daily, personal decisions, such as housing, food, clothing, medical care, etc., then you could seek Guardianship of the Person.  If the Ward needs help with both, you may request both.

The process is fairly simple.  Someone who knows the Ward, typically a family member, files an application for guardianship with the Probate Court in the county where the Ward resides.  The application must include a Statement of Expert Evaluation, which is a written report from a physician or clinical psychologist who has evaluated the person and believes that he/she is incompetent and in need of a guardian.  The Probate Court sends an investigator to meet with the prospective Ward, to give notice of the impending action and ask if he/she wants legal counsel. The court investigator also prepares a report of his/her observations to provide to the Court.   Next of kin are notified, unless they have waived their right to notice.  Then the Court holds a hearing (which looks more like a meeting in a Magistrate’s office) to determine if there is good cause for guardianship.  If approved, the Court provides the guardian with a Letter of Guardianship, as proof of the legal authority.  Depending on the type of guardianship (Person vs. Estate), there are different reporting requirements placed on the Guardian in order to keep the Court informed, as the Court remains the ultimate Guardian of the Ward.

This process of Court approval takes several weeks.  If there is an emergency situation where “immediate action is required to prevent significant injury” to a person’s health, safety or property, you can ask the Court for an Emergency Guardianship, wherein a decision can be made within a day (Ohio Revised Code 2122.01F).   However, if Emergency Guardianship is granted, it is good for only 72 hours initially.  The Court could extend the Emergency Guardianship for up to 30 days, after the Ward and next of kin have notice and a hearing is held.

Guardianship is not a perfect solution, but it can be a useful tool to help protect and care for people we love.  Depending upon the situation, a Power of Attorney (POA) may meet the need.  POAs don’t require Court approval or regular reporting and can be a less intrusive way to accomplish the same goal.  If your loved one needs some extra help right now, seek guidance as to the legal method that is best suited for your family.