Guardianship is a court-supervised relationship, established to protect the legal rights and interests of the person in need of protection called the "ward." A guardian can be a family member or a friend.
Two Types of Guardianship:
An adult person, who is eighteen years of age or older, who cannot make decisions about his/her legal rights due to illness, a mental condition, or injury, is referred to by the law as an "incompetent" person. For example, an elderly person who suffers from dementia may be adjudged an incompetent who is in need of a guardian, or a person who sustained severe injuries in an accident and is unable to manage his/her affairs for a time may need a guardian.
Minor guardianships are court-supervised procedures which permit a grandparent or other concerned individual to become a child's guardian. The court may appoint a guardian for a person under the age of eighteen years, who is need of an adult, other than the parents, to make legal decisions for the care of a minor. Applicants must be screened for suitability, but once established, the guardianship ends only upon the child's reaching eighteen years of age, or if the court determines that the need for guardianship has ended.
Particulars of Guardianship:
Legal Status of the Guardian
For legal purposes, it is as if the guardian were standing in the shoes of the ward. The guardian must act in the best interests of the ward.
Guardian of Person and/or Estate
A guardian of the person of the ward protects the physical needs of the ward. A guardian of the estate of the ward controls and protects the financial assets of the ward.
In an emergency, the court may appoint a guardian without notice to the ward or the ward's family in order to protect the ward from immediate, irreparable harm to the ward's person or estate (finances/property). A guardian appointed on an emergency basis may serve for a very short time, and the court must conduct a hearing on whether the guardianship should continue. An emergency guardian may be appointed in either a minor or incompetant guardianship situation.
Termination of a Guardianship
A minor guardianship ends when the ward attains the age of eighteen years, if the minor dies, or when the court determines there is no longer a need for the guardian.
An incompetent guardianship ends upon the death of the ward, if the ward regains competence, or when the court determines there is no longer a need for the guardian.
The Court may appoint a guardian of the person only, estate only, or person and estate of an alleged incompetent when the Court finds that an adult is mentally incompetent and the situation is life threatening or there is significant threat of a loss or damage of the individual's personal property. The Court may consider the information submitted by Applicant regarding the emergency on an ex parte basis, without notice to the ward or the ward’s family. If the Court determines the information justifies the emergency action and also determines the applicant is suitable to serve, the appointment may be made. The emergency guardian serves for a short period of time to protect the ward against significant injury to the person and/or the estate, if appropriate.
If an emergency guardian is appointed through an ex parte hearing the appointment is valid for a maximum of 72 hours. At the ex parte hearing, the Court also will set a date and time within the 72 hours period for a further hearing to determine if the emergency guardianship should be extended for a maximum of an additional 30 days. Notice of this hearing will be given to the ward and all other interested parties.
Items necessary to file an Emergency Guardianship:
- The ward must be a Wayne County resident;
- It is necessary to apply for full guardianship within the the 30 day period prior to the appointment expiring
- If the applicant is applying to be an emergency guardian of the estate, the applicant must be bondable and a bond may be required before the appointment is made;
- The base court cost deposit is $220;
- The Court will perform a record check of the proposed emergency guardian before making an appointment; and
- Complete the Probate Forms listed below.
A guardianship is a legal relationship established by the Probate Court where an individual (referred to as “the guardian”) has the authority and duty to care for another’s person or property (referred to as “the ward”) due to the other person’s disability or incapacity. RC 2111.01 (d) defines "Incompetents" as adults who are 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 they are incapable of taking proper care of themselves, their property or their family. Persons who are confined to a penal institution within Ohio are also subject to having a guardian appointed for their assets.
Any interested person may apply to be guardian or an adult may nominate a guardian through a durable power of attorney. The Court will make the ultimate selection of guardian for the ward.
The guardianship process for an Ohio redident is started by filing an application in the Probate Court of the county where the proposed ward resides. Unless certain conditions have been met, the proposed ward must have been a resident of Ohio for six months prior to the filing of the application. The applicant must agree to perform the responsibilities of the guardian and on occasion secure a bond. A Probate Court Investigator will visit the proposed ward and will provide the proposed ward with notice of the hearing and provide an independent assessment of the person alleged to need guardianship. Additionally, the applicant must obtain an evaluation by an appropriate expert, such as the proposed ward's physician, and file a completed Statement of Expert Evaluation with the application. A hearing will be scheduled and a determination will be made regarding the necessity of the guardianship and the suitability of the guardian.
The person alleged to be in need of the guardianship has the right to be present at the hearing on the application for guardianship to show that a less restrictive alternative is available, to have a friend or family member join them at the hearing, to have an independent evaluation performed by a court appointed expert, and to be represented by an attorney.
There are three types of Guardianships of an Incompetent Adult:
- Guardianship of the Person—This is typically granted when the individual needs assistance meeting their personal needs.
- Guardianship of the Estate—This is typically granted when the individual only needs assistance managing their assets.
- Guardianship of the Person & the Estate—This is typically granted when the individual needs assistance with their personal needs as well as their assets.
The Probate Court is always the superior guardian, and all guardians must obey the orders of the Court. The Court exercises the supervisory authority through the several means: accountings, annual reports, citations, investigations, Court Visitors, hearings and sanctions when appropriate.
As a condition of being appointed as a guardian, any applicant who is not an attorney, or is not serving under Wayne County Guardian Assosiation, will be required to attend a free guardian training program taught by Court personnel within 6 months of being appointed and every year after.
Items necessary to file a Guardianship for an Incompetent:
- Application for guardianship is filed in the county where the proposed ward resides;
- The base court cost deposit is two hundred and $220; and
- Complete the applicable Probate Forms listed below.
Items that may be required once a guardianship is established
A guardianship of a minor is a legal relationship where one person is given the authority and duty to care for the minor's person or property. RC 2111.12 governs guardianships for any person less than eighteen (18) years of age who has neither a father nor a mother, whose parents are unsuitable to have custody of such minor, or whose interests will be promoted by a guardianship. Alternatively, a guardianship is granted to assure that the needs of the ward are met. The person who is a minor and is receiving guardianship services is referred to as the “ward.” The person who is appointed by the court to be responsible for the minor ward’s person or property is called the “guardian.”
There are three types of Guardianships of a Minor:
- Guardianship of the Minor's Person- This is typically granted when the ward’s parents are unable or unwilling to provide care and guidance for the ward or when the minor's interest will be otherwise promoted through a guardianship.
- Guardianship of the Minor's Estate - This is typically granted when the ward has obtained more than $25,000 in property and needs assistance with administration.
- Guardianship of the Minor's Person and Estate- This is typically granted when joint control of the ward and their assets are necessary.
The Court will appoint the guardian. A minor over fourteen (14) may nominate a guardian and a child’s parents may nominate a guardian by leaving instructions in a last will and testament, or including them in a durable power of attorney. A durable power of attorney containing a nomination of a guardian for the maker's minor children may be filed with the Court for safekeeping and be designated a nomination of a standby guardian. The Court will appoint the nominee set forth in the power of attorney, except for good cause shown or disqualification.
The Probate Court is always the superior guardian, and all guardians must obey all orders of the Court. The Court exercises the supervisory authority through accountings, reports, citations, investigations, Court Visitors, and removal proceedings. The Court may request that the court investigator or Court Visitor perform a follow-up investigation and file a report with the Court.
The signing and filing of the Affidavit (Form 16.1) is jurisdictional in every minor's guardianship. It must be completed fully and accurately listing the required addresses and all prior court proceedings involving the minor. If there have been any prior case filings in any court involving the minor's custody or visitation, those proceedings must be described and a certified copy of the Order or Entry in that case must be provided to the Court with the initial filings. If the Order or Entry is written in a foreign language, the Applicant should provide a translation. If a case is opened and the Court thereafter determines the filed Affidavit is untrue or that the Court otherwise lacks jurisdiction to proceed, the initial cost deposit will not be refunded.
Items necessary to file a Guardianship for a Minor:
- Application for guardianship is filed in the county where the proposed ward resides;
- A copy of the minor’s birth certificate;
- The base court cost deposit is $145;
- Complete the applicable Probate Forms listed tbelow.
The information contained on this web site is not legal advice, nor should it substitute for the assistance of a qualified attorney. Good legal assistance can speed up the court process and prevent costly legal errors.