Emergency Guardianship

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.  To appoint an emergency guardian for a minor, the minor must be facing an immediate medical emergency. 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 personally served upon the ward and given to other interested parties.  


Items necessary to file an Emergency Guardianship:

  1. The ward must be a Delaware County resident or the filings must include nformation regarding the home state or home county of the individual;
  2. If the ward is a non-resident of Ohio, the filier must provide the identities, relationships and addresses for the persons who would be required to be notified if the case had been commenced in the home state;
  3. Copy of Driver’s License or Government issued picture ID of the applicant;
  4. It is necessary to apply for full guardianship within the initial 72 hours of being appointed emergency guardian;
  5. 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;
  6. The base court cost deposit is eighty-three dollars ($83.00);
  7. The Court will perform a record check of the proposed emergency guardian before making an appointment; and
  8. Complete the Probate Forms listed to the right.

Frequently Asked Questions

What Can be Done if there is an Immediate Risk of Significant Injury to the Ward or the Ward’s Property?

Under RC 2111.02(B) (3) an appointment of a guardian may be made by the Court in an emergency without notice to the individual (ward) or the family to serve only for a limited period of time and only for the protection of the ward from injury to the ward or the ward’s assets.  There must be reasonably demonstrated certainty that immediate action is required to prevent significant injury to the person or estate of the minor or alleged incompetent person.  When a need for the emergency guardian is determined to exist the Court may issue any order it considers necessary to prevent the threatened injury or mitigate the emergent situation.

Can the Emergency Guardianship be Extended?

The ex parte appointment is effective only for a maximum of 72 hours.  A copy of the Court’s order must be served upon the individual as soon as possible after it is issued.  With notice to the individual and other interested parties and with a hearing, the emergency guardianship may be extended for an additional 30 days.

What are the Powers of the Emergency Guardian?

The emergency guardian has only those powers set forth in the Court’s appointing order and those will be limited to the powers that are necessary to prevent the threatened injury to the individual’s person or property.  The emergency guardian does not have the full powers held by a general guardian.

What if the Emergency Continues?

If there is a perceived need for a permanent guardian, an application for a full (or limited) guardianship should be commenced simultaneously with the filing of the emergency guardianship to permit timely processing and a full hearing before the expiration of the emergency appointment.

When does the Emergency Guardianship Terminate?

The emergency guardianship terminates on the earlier of the expiration of the effective period of the Court’s order (72 hours/30 days), the issuance of an order appointing a general Guardian for the individual, or upon other order of the Court.  

Dispensing with a Guardianship

FOR A MINOR-

An Application to Dispense with Appointment of Guardian may be filed in the Probate Court of the County where a minor resides if the funds the minor is expected to receive do not exceed $25,000.  The funds might be received from an insurance policy on which the minor is named beneficiary, from an estate where the minor is entitled to inherit, or from a wrongful death settlement where the net proceeds do not exceed $25,000.00.  Only one minor may be listed on an Application. 

The Attorney, the applicant, and the minor child must appear at the hearing.  The attorney or applicant must give at least seven (7) days notice of the hearing to any non-custodial parent of the minor who has not waived notice of the hearing.  

While there are alternatives available for handling the funds, the most common approach is for the Court to order the funds to be sequestered in a custodial deposit at a financial institution under the minor's sole name.  No access is given to the funds until age 18, or upon a court order.

Pursuant to Ohio Rule of Superintendence 67(C), after the entry is approved the attorney and the applicant shall be responsible for providing the financial institution with a certified copy of the entry and depositing the funds.  The attorney and/or applicant must obtain a Verification of Receipt and Deposit (Form 22.3) from the financial institution and file it with the Court within seven (7) days of the entry being issued. 

The funds are being held in a custodial account in the minor’s name until the age of majority (18).  They must be deposited in a depositary authorized to hold fiduciary funds and be located in Ohio.  

If (a) the funds passing to the minor result from a settlement of a minor's claim for which there is a separate probate case filed for approval of the settlement, and (b) the net sum passing to the minor is less than $10,000, then the filing of an Application to Dispense is not required.

Items necessary to file a Dispensing with Guardianship of a Minor:

  1. Application - Minor is to be filed in the county where the minor resides;
  2. Copy of Driver’s License or Government issued picture ID of the applicant, natural parent(s) or person having custody of the minor;
  3. A Narrative Statement of the Event giving rise to the funds or other source of the funds;
  4. A certified copy of the minor’s birth certificate;
  5. The base court cost deposit is seventy dollars ($70.00); and
  6. Complete the applicable Probate Forms listed to the right. 

FOR AN ADULT INCOMPETENT-

An Application to Dispense with Appointment of Guardian for Adult Incompetent may be filed with this Court if the adult incompetent is a resident of Delaware County and the assets do not exceed $25,000.00, including the annual rental receipts.   

While there are alternatives available for handling the funds, the most common approach is for the Court to order the funds to be sequestered in a custodial deposit at a financial institution under the adult incompetent's name, with a restriction imposed upon the funds that there be no access to them without a specific court order.  When appropriate, the Court may establish a pre-approved periodic withdrawal schedule.

After the entry is approved the attorney and the applicant shall be responsible for providing the financial institution with a certified copy of the entry and depositing the funds.  The attorney and/or applicant must obtain an Initial Verification of Receipt and Deposit (Form 22.3A) from the financial institution and file it with the Court within seven (7) days of the funds being received. 

The custodial depositary must be authorized to hold fiduciary funds and be located in Ohio.  

Items necessary to file a Dispensing with Guardianship of Adult Incompetent:

  1. Application - Adult Incompetent is to be filed in the county where the adult incompetent resides;
  2. Copy of Driver’s License or Government issued picture ID of the applicant;
  3. A statement identifying the source of each asset;
  4. A photocopy of the adult incompetent's birth certificate;
  5. A Statement of Expert Evaluation supporting the allegation of incompetency;
  6. Social Security Information form (confidential) as to the adult incompetent;
  7. The base court cost deposit is seventy dollars ($70.00), cash or check only; and
  8. Complete the applicable Probate Forms listed to the right.

 

Application for Conservatorship

A conservatorship is a voluntary court supervised relationship in which a person who is mentally competent, but physically infirm, can apply to have someone appointed to care for the applicant’s Person, the applicant's Estate, or both the Person and Estate.  

A bond may be required in cases where a conservator of the estate is appointed.

After the application is filed, the Court will hold a hearing to determine whether (1) the applicant is physically infirm, (2) the application was voluntarily submitted, and (3) the conservator is suitable to serve.  The applicant and the proposed conservator must both appear in Court at the hearing.

Upon Motion and for good cause shown, the Court may make confidential any file, record, application, account or paper in the possession of the Court that pertains to the conservatorship, except the index, docket and journal.


Items necessary to file a Conservatorship:

  1. Application for conservatorship is filed in the county where the applicant resides;
  2. Copy of Driver’s License or Government issued picture ID of the applicant and proposed conservator;
  3. The base court cost deposit is one hundred and two dollars ($102.00); and
  4. Complete the applicable Probate Forms listed to the right.

Termination of a Conservatorship

A conservatorship can be terminated if the Court determines that the conservatee has become mentally incompetent, dies, or has submitted written notice of termination.  A resignation by the conservator will also terminate the case. 

 

Frequently Asked Questions

What is a Conservatorship?

A conservatorship is voluntary, unlike an involuntary guardianship. It is established by a mentally competent individual who is physically infirm and wants an individual (the “conservator”) chosen by the applicant (the “conservatee”) to assist with making decisions regarding the care for the person or the assets of the conservatee.  The conservatee wants the conservator to the have the accountability provided through Court supervision.

How does it differ from a Durable Power of Attorney?

The durable power of attorney creates an agency relationship that extends beyond incompetency and is not directly supervised by the Court.  The conservator is monitored by the Court as a guardian would be monitored and the conservatorship terminates if the conservatee becomes incompetent.

How is a Conservatorship Commenced and Terminated?  

It is opened in the Probate Court of the county of residence of the conservatee by filing an application naming the conservator.  A hearing will be held to determine if the physical infirmity exists and whether the selected appointee is suitable to serve.  The conservatorship ends when the conservatee dies, becomes incompetent, the conservatee voluntarily requests that it be terminated, or the conservator resigns.

What Guidelines Apply to the Conservatorship?

Once the appointment is made, all of the laws and procedures applicable to a guardianship apply to the administration of a conservatorship.

Are there Standard Probate Forms Issued by the Supreme Court of Ohio for Use in Conservatorships?

There were three forms in the #20 series of the Supreme Court of Ohio Standard Probate Forms; however, those forms were withdrawn by the Supreme Court of Ohio effective September 1, 1991 and their use is no longer mandatory.  Local forms are available on the right side of this page.

Does the Applicant need an Attorney?

Due to the technical aspect of the legal process, the language, and the importance of the outcomes, the Probate Court strongly recommends that all Applicants seek legal counsel.  Good legal advice will hasten the probate process and prevent costly mistakes.