Guardianships / Conservatorships
Guardianship takes away a person’s ability to make choices. Because the appointment of a guardian takes away a person’s ability to make decisions about his or her life, other options which place fewer restrictions on the person with a disability should be considered first. One of these less restrictive options may be able to meet the person’s needs without the appointment of a guardian.
What is a Guardian?
A guardian is a person, corporation or an association appointed by a probate court to be legally responsible for another person and/or for another person’s property (estate) when that person is unable to manage his or her personal needs or property because of a mental disability. Only a “natural person” (not a corporation) can be appointed as a guardian of the person.
What is a Ward?
A ward is the person for whom a guardian has been appointed.
Why are Guardians Appointed?
A probate court will appoint a guardian to direct the legal, financial affairs and/or the personal care of a person who is not able to manage his or her own affairs because of a mental disability. Family members or others can ask the court to act to protect someone who appears to be lacking ability to do so for him or herself and is therefore “incompetent.” If the court finds that the person is incompetent and a guardianship is necessary, the court will appoint a guardian. Once appointed, a guardian is accountable to the probate court for providing proper care and management of the ward’s affairs in the ward’s best interest.
What are the General Powers and Duties of a Guardian?
The control that a guardian has over a ward is limited to the authority granted by Ohio statutes, decisions of Ohio courts, and orders and rules of the probate court. All guardians must obey the orders and judgments of the probate court which appointed them. The probate court may give broad and far-reaching powers to a guardian, or it may limit or deny any power granted under Ohio statutes or Ohio case law. Ohio law provides for different types of guardianships.
What are the Types of Guardianship?
Limited Guardianship - Limited guardianship allows a probate court to appoint someone as guardian over only the portion of a person’s life where he or she is both incompetent and has a need. Thus, there can be a limited guardian for medical purposes only (to provide consent for medical procedures), or for placement purposes only (admission to a group home), or for the limited purpose of approving behavior plans and/or psychotropic medications. This less restrictive form of guardianship should be used instead of full guardianship whenever possible. A ward for whom a limited guardian has been appointed retains all rights in all areas not covered by the court’s order.
What Rights are Taken Away When a Guardian Is Appointed?
The rights taken away depend upon the type of guardianship established by the probate court.
If a guardian of the estate is appointed, the guardian’s decisions can not be contested. However, even if the ward has a guardian of the estate, the ward can make contracts for necessary items.
If a guardian of person is appointed, the ward may make any decision that is not contrary to the authority of guardian. Also, the ward can contest the presumption that he or she does not have the ability to make a decision.
The loss of personal rights is why guardianship is a very serious step that should be taken as a matter of last resort. A limited guardianship that identi.es and limits a speci.c area in a person’s life, and does not affect any other rights, is preferred if guardianship is necessary. Less restrictive alternatives to guardianship should be considered before guardianship because these options allow the person to keep as many personal rights as possible while providing protection in those areas the person needs.
Does the Ward Retain Any Rights?
Some areas of the person’s life may involve fundamental rights or a right of privacy. There may be speci.c medical procedures, such as those that implicate reproductive rights, for example abortion or sterilization, that should be decided by the person whenever possible. If this is not possible, the law may require the guardian to ask the probate court to review the guardian’s decision. In addition, voting is a fundamental right. Unless a court speci.cally rules, after a hearing, that a person is incompetent for purposes of voting, the person retains the right to vote even if the person has a guardian of the person and the estate.
Also, some rights are personal to the ward and cannot be exercised by a guardian. A guardian cannot make a will or execute a power of attorney for the ward. The ward may be able to exercise these rights if he or she has the capacity to do so.
What are Some Less Restrictive Alternatives to Guardianship?
A person may have significant deficits in life, but the person’s support network (for example, families, friends, service providers) may be so effective that guardianship is not necessary. Other options exist that can effectively address a person’s needs without the appointment of a guardian:
What happens at a guardianship hearing?
The court will set the matter for hearing, often before a magistrate instead of the judge. If everyone is in agreement that the guardianship is needed, or if no one appears to object, then a letter of guardianship is awarded. If anyone objects, including the person who would receive the guardian, then the hearing becomes more like a trial where witnesses will be examined and cross-examined.