Guardianship for an Adult Incompetent

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:  

  1. Guardianship of the Person—This is typically granted when the individual needs assistance meeting their personal needs.
  2. Guardianship of the Estate—This is typically granted when the individual only needs assistance managing their assets.
  3. 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, if not serving through Adult & Protective Services, Inc. or the COAAA Volunteer Guardian Program, the guardian will be required to attend a free guardian training program (a) taught by Court personnel, or (b) through the Supreme Court of Ohio training for adult guardians.  

 

Items necessary to file a Guardianship for an Incompetent:

  1. Application for guardianship is filed in the county where the proposed ward resides;
  2. Copy of Driver’s License or Government issued picture ID of the applicant;
  3. A certified copy of the proposed ward’s birth certificate;
  4. The base court cost deposit is two hundred and twenty-five dollars ($225.00); and
  5. Complete the applicable Probate Forms listed to the right.

Terminating Guardianship of an Incompetent:

By court order, a guardianship for an incompetent may be terminated upon the Court determining that a guardianship is no longer necessary because the ward has been restored to competency, upon findng a less restrictive alternative, or upon the death of the ward.  A ward may file a motion to evaluate the continued necessity of the guardianship 120 days after the appointment of the guardian and once a year thereafter.  If the ward moves to another county in Ohio or to another State, the guardianship, in most cases, may be transferred to the probate court in that location. 

RESIDENT GUARDIANS FOR NON-RESIDENT WARDS

When a minor, an incompetent, or a person confined in a penal institution is a non-resident of Ohio, but has real and personal property in Delaware County Ohio, the Probate Court may appoint a resident guardian to manage, collect, lease and take care of all of the individual’s Ohio property.  The appointment may be made even if there is a foreign guardian, trustee or conservator in the state of residence of the ward and the appointed resident guardian for the non-resident ward shall have superior control of all of the Ward’s property located in Ohio. The resident guardian for a non-resident ward is subject to the same laws as a guardian of the estate of a resident.

Assets may be paid over to the guardian as necessary to provide for the welfare and maintenance for the non-resident.

A foreign guardian may apply to the Probate Court for a directive that the Ohio assets held by resident guardian be transferred to the foreign guardian after at least 30 days notice and a hearing.  The Court will the best interests of the non-resident ward or his estate when making the decision on the transfer request.

If the non-resident incompetent ward becomes an Ohio resident and an Ohio general guardian is appointed for the ward, the previous resident guardianship for the former non-resident shall end and the funds will be paid to the new Ohio general guardian.

 

Frequently Asked Questions

A guardianship of an adult incompetent is a relationship established by the Probate Court between an individual needing guardianship services (referred to as “the ward”) and another adult (or in limited situations a state-wide contracted non-profit corporation for developmentally disabled individuals) appointed by the Court to serve as the guardian.  An individual requiring guardianship is not able to care for themselves or their property as a result of a physical or mental illness or disability.  The guardian assumes responsibility for the care and management of the person, the assets, or both, of the individual as specified in the appointing order of the Court.  The guardian is accountable to the Probate Court which serves as the superior guardian for all guardians.  A corporation can serve as the guardian of a person's assets (referred to as “the estate”), but not of the person.

Who needs a Guardian?
The Ohio law permits the Probate Court to appoint guardians for 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.

Who Chooses or Selects the Guardian and Can Non-Residents of Ohio be Appointed?
The Probate Court appoints and selects all guardians.  An adult may nominate a guardian for themself or for their incompetent adult child through a will, a power of attorney, or a specially prepared document.  The nominations are suggestions or preferences to be considered by the Court; however, they are not binding on the Court.

The Court may only appoint Ohio residents as guardians of the estate.   A non-resident family member may be appointed a guardian of the person.  If an Ohio guardian of the estate moves from Ohio, the appointment will end and a resident successor guardian for the estate will be appointed.

Where is the Proposed Ward's Residency?

Residency essentially determines the existence of jurisdiction.  A proposed Ward's "home state" is the state in which the adult most recently resided for six consecutive months prior to the filing of the guardianship proceeding.  This Court does not have juridiction to appoint a guardian for an adult living in this county unless (a) Ohio is the home state; (b) the home state has not exercised jursdiction, a peson required to be notifeid has not objected to jurisdiction, and this Court is a more convenient forum; or (c) there is an emergency granting this Court special jurisdiction.  The jurisdictional prerequisites cannot be waived by the applicant, the proposed Ward, the parties, or this Court.  The home state may, by specific order, waive jurisdiction and defer to early action being taken in Ohio.  The operative statutes are contained in the Adult Guardianship and Protective Proceedings Jurisdiction Act (RC Chapter 2112) and they are intended to reduce granny snatching and avoid the creation of conflicting orders from different jurisdictions. 

Sup.R. 66.04(B) provides that for an adult ward, the last county of residence in Ohio in which the ward resided prior to losing the cognitive ability to choose shall be the ward's county of residence for purposes of establishing a guardianship, unless otherwise determined by the Court establishing the guardianship.


How is a Guardianship Commenced?
An application by an interested party is made to the Probate Court in the county of residence of the person for whom the guardianship is needed.  The applicant is assumed to be seeking to be appointed as the guardian and indicating a willingness to assume the responsibility, unless clearly indicated otherwise.  The Court may also commence a guardianship on its own motion.

The application must recite the facts necessitating an adult guardianship and be accompanied by a statement from a physician, psychiatrist or licensed psychologist attesting to the ward’s mental and physical condition.  Another assessment of the proposed ward will be performed by the court’s investigator.  These assessments are intended to assure that a guardianship is necessary.  The prospective ward, as well as the adult next of kin (persons who would inherit from the ward if the ward were to die without a will) who reside in Ohio, are notified of the proceedings and of the hearing date.  Non-resident next of kin are provided a courtesy notice.  The applicant must file with the application the Guardianship Service Information form to assist the Court with perfecting service of notice upon the proposed ward.

A formal hearing is held before the Court to determine (a) the guardianship is necessary, (b) there is no less restrictive alternative available, (c) the proposed guardian is suitable, and (d) that the guardian understands the duties that are being assumed by accepting the appointment.  The Court must find that there is clear and convincing evidence of incompetence if incompetence is alleged as the basis for the appointment.  Guardians must agree to serve and cannot be involuntarily appointed.  The Court will determine the amount of the surety bond, if any, that the guardian of the estate must deposit with the Court before the appointment is made.

An adult for whom a guardianship is being sought must have been a resident of Ohio for at least 6 months prior to the finling of the application unless there is a medical emergency or the proper court in the "home" state has consented to this Court exercising jurisdiction. 

What Are the Rights of a Prospective Adult Ward?
The prospective adult ward has a right:

  1. to be notified of and be present for the hearing,
  2. to contest the application,
  3. to suggest a less restrictive alternative (power of attorney, conservatorship, limited guardianship),
  4. to have a record made of the hearing,
  5. to have a family member or a friend present at the hearing,
  6. to have evidence of an independent expert evaluation introduced,
  7. if indigent and it is requested, to have an independent attorney and an independent expert appointed at court expense, and
  8. if appealed and indigent to have counsel appointed and necessary transcripts prepared for appeal at court expense.

What Are the Guardian’s Responsibilities?
Often the person appointed to be the guardian of the person is a family member or a friend.  The guardian of the person is responsible for overseeing the general health and welfare of the ward and assuring that the everyday needs of the ward are met.  The guardian of the person makes decisions about the ward’s housing, medical care, transportation and personal care.  In every instance the decisions must be made in the best interests of the ward, not the guardian’s personal best interest.  The guardian is not expected to spend any of the guardian's personal assets for the benefit of the ward, unless the guardian is otherwise obligated to support the ward under applicable law (spouse).

A guardian of the estate is responsible for securing, identifying, accounting for, managing, and investing the financial assets and property of the ward.  This is done for the exclusive benefit of the ward and the guardian may not self-deal with the ward’s assets. The guardian of the estate may not commingle the ward’s assets with the guardian’s personal assets and must annually account to the Court for each item of income and expenditure.  There are limitations on the type of investments that a guardian may make with the ward’s assets.

The guardian of the person is required to file an Annual Guardianship Plan with the identifying the goals and objectives of the guardian for the person under guardianship for the coming year.

A guardian must obey the orders of the Court.  Before being appointed, each guardian must execute a Guardian’s Oath in the presence of the Judge or Magistrate whereby the proposed guardian agrees to perform the duties of the guardian.

Is Training Required?

A guardian of an adult must be familiar with the fundamental training and continuing guardianship training requirements.  Unless exempted by a specific order from the Court, the adult guardian must assure that the requirements are met and reported to the Court in a timely manner.

How Does the Court Supervise the Guardians?  
A guardian of the person must file annually a Guardian’s Report which identifies the ward’s current status and verifies the continued need for the guardianship.  This must generally be accompanied by a Statement of Expert Evaluation unless the Court waives it because of the ward’s chronic condition.  Additionally, the guardian of the person must file with the Guardian's Report the Annual Guardianship Plan.  

A guardian of the estate is required to file an initial Inventory of the ward’s assets.  The guardian of the estate is required to file annual Accounts reflecting the income and expenditures of the ward’s assets.  The accounting must be accompanied by receipts for each expenditure and proof of the existence of the remaining assets.

A guardian of the estate must obtain prior approval, before (a) taking possession of accounts held in the ward’s name, (b) expending any of the assets of the ward, (c) selling the ward’s personal property or real estate, (d) mortgaging the ward’s property, or (e) settling claims of the ward (see FAQ below).

The Court may request that Adult Protective Service, a Court Investigator, or a trained Court Visitor meet with the adult ward and/or the guardian to determine whether the guardianship is functioning properly and to offer assistance or guidance to the guardian.  The Court will request a report if the Court Investigator or Court Visitor conducts the review.

Does a Guardian have authority to settle a claim for an adult Ward?

With prior approval from the Court, a Guardian may settle a claim on behalf of an adult Ward pursuant to RC 2111.18.  The Guardian must apply for approval to settle a claim for the Ward if the Ward has "suffered personal injury and/or damage to property by wrongful act, neglect or default that entitles the person to maintain an action to recover damages".  Effective January 1, 2015, a Guardian applying for settlement authority on behalf of an adult Ward must use the Standard Forms 22.5, 22.6 and 22.7 accompanied by the supporting documentation referenced therein and required by Sup. R. 69 and the local rules.

How is a Guardianship Terminated?
A guardianship for an adult terminates when the ward dies, or by court order when there is satisfactory evidence that need for the guardianship no longer exists and reasonable notice has been given to the guardian, the ward and the original applicant.  Within certain time restrictions, the ward or the guardian can request that the Court conduct a review to determine if continuation of the guardianship is appropriate.

What are Less Restrictive Alternatives to Guardianships?
Conservatorships may be opened when an individual is mentally competent, but physically unable to care for their person or property.  The conservator is selected by the individual applicant, is appointed by the Court, and is accountable to the individual as well as the Court.  The conservatorship ends when the person dies, becomes incompetent, or requests that it be terminated.

Limited Guardianships can be established for specific purposes, for specific assets, for making specific decisions, or for limited periods of time.

Durable Powers of Attorney for financial matters, Health Care Powers of Attorney and Living Wills (advanced medical directives) are documents that may serve to reduce the need for a guardianship. The existence of either or both of these instruments does not preclude the appointment of a guardian.

What Happens if a Guardian is Unwilling to Continue to Serve?
A guardian who wants to resign must provide the Court 15 days advance written notice.  The Court may hold a hearing.  During the period following the notice, the guardian remains responsible for continuing to perform the responsibilities of being guardian.  Within 30 days of the resignation becoming effective, the resigning guardian of the estate is required to  transfer all of the assets to the successor guardian and file a final accocunting. The resigning guardian is required to facilitate the transition of all of the information regarding the ward’s personal care, health, and other needs to the successor.  The resigning guardian must deliver all of the ward’s personal records to the successor.  When accepting the initial appointment the guardian committed to act in the best interests of the ward and that obligation extends through the resignation.

What if the Guardian Dies?
Upon learning of the death of a guardian, the Court will appoint an interim guardian without notice to the ward or family.  The appointment is effective for a maximum of 15 days.  The Court will then serve the ward with a copy of the order.  With notice to the ward and interested parties and after a hearing, the interim appointment may be extended for an additional 30 days while the Court determines an appropriate successor guardian.

What Happens to the Will of a Person under Guardianship?  
When an individual having a guardian has a last will and testament, the person having possession of the will is required to deposit it with the Probate Court for safekeeping.  A receipt for the deposited will is given by the Court to the person depositing the will.  A notation is made in the guardianship case file that the will has been deposited.

How Is a Guardian Compensated?
A guardian may make an application to the Court for allowance reasonable guardianship compensation.  If approved the compensation may be paid by the guardian of the estate from estate assets.  If the ward is indigent,  guardian's compensation may also be made from the very limited funding available for payment through the Court’s Indigent Guardianship Fund.  Family guardians may not be compensated from the Indigent Guardianship Fund.

How Does the Existence of A Guardianship Change a Ward’s Right to Contract and Gift?
From the date of service of the notice of the filing of the Application for Guardianship until the hearing on the Application no sale, gift, conveyance or encumbrance of the property of the alleged incompetent ward is valid as to persons having notice of the proceeding.  For this reason, persons seeking to protect and preserve the assets of the Ward may determine to serve, and document service upon, persons other than those required to be notified.

Once a guardian is appointed the ward’s authority to contract, gift, encumber, sell and convey property is then suspended for the duration of the guardianship.

Can a Guardian Establish a STABLE Account with the Ward's Income or Assets?

A Guardian may find that they have a ward who qualifies for the establishment of an Ohio ABLE account (referred to by the administering Treasurer of Ohio as a STABLE account).  These accounts are authorized by federal law and corresponding Ohio implementing legislation (RC 113.50, et esq.) for individuals with disabilities arising prior to age 26 and who meet other requirements.  The assets/income in the account are not countable resources for purposes of several governmental benefit programs.  A guardian can establish a STABLE account for the qualifying ward, using assets and/or income of the ward, with prior court approval.   A local probate form has been created for use in applying to the Court for such authority.  It is included on this webpage as a post-hearing form and also on the Local Forms tab.  The Treasuer's website for STABLE accounts is www.stableaccount.com.

Does the Applicant need an Attorney?
Due to the technical aspect of the legal process, the language, and the permanency of the outcomes, the Probate Court strongly recommends that all applicants for appointment as a guardian seek legal counsel.  This is especially true if the applicant is seeking to be appointed guardian of the estate.

Having an attorney is critically important for guardians of an estate of an individual because of the complexity of the accounting, investment and expenditure laws.  Failing to follow the proper laws can result in contempt citations, sanctions, and even criminal charges.  The attorney fees for services to the guardianship are subject to approval by the Court as allowable expenses to be paid from guardianship assets.

Good legal advice will hasten the probate process, prevent costly mistakes, and lessen the chances that the Applicant will be faced with suits by other heirs, creditors, or family members.  Deputy Clerks of the Probate Court are prohibited by Ohio law from assisting in the preparation of the required forms.

Additional information