Guardianship For A Minor

A guardianship of a minor is a legal relationship where an individual is given the authority and the duty to care for the minor's person and/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 and/or property is called the “guardian.”  

There are three types of Guardianships for a Minor:   

  1. 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.
  2. Guardianship of the Minor's Estate - This is typically granted when the ward has obtained more than $25,000 in property and by law, legally authorized assistance with finanical administration is required.
  3. Guardianship of the Minor's Person and Estate- This is typically granted when joint control of the ward and their assets becomes 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 or designation, except for good cause shown or  other disqualification of the nominee.

By statute, the Probate Court is always the superior guardian of a minor ward, and all guardians must obey all orders of the Court.  The Court exercises the supervisory authority through required financial accountings, reports, citations, investigations, Court Visitors activities, and removal proceedings.  At any time, the Court may request that the court investigator or a Court Visitor perform a follow-up investigation and file a report with the Court.

As a condition of being appointed as a guardian, an applicant who is not an attorney, will be required by the Court to attend a free guardian training program preseted at designated intervals by Court personnel.

The signing and filing of the Affidavit (Form 16.1) is a jurisdictional pre-requisite in every minor's guardianship.  It must be completed fully and accurately and list the prior 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 tendered Order or Entry is written in a foreign language, the Applicant should provide a certified 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.

The Court has no jurisdiction to accept a guardianship case for a minor until the child has lived in Ohio for at least 6 consecutive months immediately prior to the filing, unless the minor faces a medical emergency, has been abandoned (no contact or visits with a parent for at least 90 days), or the minor's "home state" declines its jurisdiction in writing.  In applicable cases, the proof of the exception to the 6 month residency requirement must be provided with the initial case filing.  

Items necessary to file a Guardianship for a Minor:

  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 minor’s birth certificate;
  4. The base court cost deposit is one hundred and twenty-five dollars ($125.00) for a Guardian of the Estate, two hundred twenty-five ($225.00) for a Guardian of the Person or for the Person and Estate; and
  5. Complete the applicable Probate Forms listed to the right.

Terminating Guardianship of a Minor

A guardianship for a minor terminates upon the minor becoming eighteen (18) years of age, upon an eariler death, or a finding that the minor's interst is no longer promoted by a guardianship.  If the value of the minor’s estate is less than $25,000, the guardian may apply for termination of the guardianship and an approval of a  approved alternative statutory means of handling the money.  If the ward moves to another county in Ohio the guardianship may be transferred to the probate court in that location.  If the ward moves to another state, the approval of this Court is required, and with the consent of the new state, the guardianship may be transferred to, re-filed in, that state.

 

RESIDENT GUARDIANS FOR NON-RESIDENT WARDS

When a minor is a non-resident of Ohio having a real or 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 minor’s Ohio property.  The appointment may be made even if there is a guardian or trustee in the home state of the ward.  The appointed Ohio resident guardian shall have superior control of all of the minor’s property located in Ohio. The Ohio resident guardian for a non-resident minor is subject to the same laws as a guardian of the estate of a resident minor.

A foreign non-resident guardian may apply to the Probate Court for a directive that the Ohio assets be paid over to the foreign non-resident guardian after a hearing and 30 days notice.  The Court will determine what is in the best interests of the non-resident minor.

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

Frequently Asked Questions

A guardianship for a minor is a relationship established by the Probate Court between an individual (referred to as “the minor”) who is incompetent by reason of age (under 18) and another adult, association, or corporation.  A guardians is appointed for a minor who is not able to care for themself or their property, as a result of minority.  The guardian assumes responsibility for the care and management of the person, the assets, or both, of the minor.  While the Court will not micro-manage the guardianship, the guardian is accountable to the Probate Court which serves as the superior guardian for all guardians.  A corporation can only serve as the guardian of a person’s assets (referred to as “the estate”), not the person.

Which Minors need a Guardian?
The Ohio law permits the Probate Court to appoint guardians for minors:
When a child is under 18 years of age and the parents are dead, are unsuitable persons to have custody, or when the best interests of the minor would be otherwise served. If a minor has a claim for personal injuries, or inherits assets, a guardian also may be appointed to receive, preserve and invest those assets until the minor attains 18 years of age, even if a parent is living and fully capable of caring for the minor.

Who Chooses or Selects the Guardian and Can a Non-Resident of Ohio be Appointed?
The Probate Court appoints and selects all guardians.  Both the minor who is age 14 or older and a minor’s parent (through a will or durable power of attorney) may nominate or suggest a guardian for a minor.  The nominations are suggestions or preferences to be considered by the Court.  Nominations are consideered, but are not binding on the Court.

The Court may only appoint an Ohio resident as a guardian of the estate of a minor.   A non-resident family member may be appointed a guardian of the person of the individual.  If an Ohio guardian of the estate moves from Ohio, the appointment of that guardian as to the minor's estate will be revoked and a successor resident guardian for the estate will be appointed.

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

Where is the Minor's Residency?

Residency essentially determines the existence of jurisdiction.  A minor's "home state" is the state in which the minor most recently resided  with one or more parents, or a person acting as a parent, for six consecutive months prior to the filing of the guardianship proceeding.  This Court does not have juridiction to appoint a guardian for a minor living in this county unless (a) Ohio is the home state, (b) the home state has declined to exercise jursdiction, (c) the minor has been abandoned (no parental contact for at least 90 days), or (d) there is an immediate medical emergency.  The jurisdictional prerequisites cannot be waived by the minor's parents, 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 Ohio Uniform Child Custody Jurisdiction and Enforcement Act and they are intended to reduce child snatching and avoid the creation of conflicting orders in different jurisdictions. 

What Are the Rights of a Prospective Minor?
The minor has a right:

  1. to be notified of the time and place for the hearing, if over age of 14,
  2. to have each parent whose name and address is known or with reasonable diligence can be ascertained notified of the time and place of the hearing, provided the parent is not also under a disability other than minority, and
  3. to be present, to have the parents who can be notified, be present at the hearing.

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

A guardian of the estate is responsible for securing, reporting, accounting for, managing and investing the financial assets and property of the minor.  This is done for the exclusive benefit of the minor and the guardian may not self-deal with the minor’s assets. The guardian of the estate may not commingle the minor’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 minor’s assets.

Guardians 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 Guardian agrees, under oath, to perform the duties of the guardian.

How Does the Court Supervise the Guardians?  
A guardian of the person must file annually a Guardian’s Report which identifies the minor’s current status and verifies the continued need for the guardianship.  

A guardian of the estate is required to file an initial Inventory of the minor’s assets and an annual Accounting reflecting the income and expenses of the minor’s assets 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 Minor’s name, (b) expending any of the assets of the minor, (c) selling the minor’s personal property or real estate, (d) mortgaging the minor’s property, or (e) settling claims of the minor.


The Court is the superior guardian for all minors under guardianship.  The Court may order that its own Court investigator, or a Court Visitor to visit the minor and/or the guardian and then report to the Court whether the guardianship is functioning properly and to offer referrals and guidance to the Guardian.

How is a Guardianship Terminated?
A guardianship for a minor terminates when the minor attains age 18 or when otherwise ordered by the Court.  If the Court determines the minor is not receiving proper care, the Court may certify its findings to the Juvenile Court for further proceedings.  The Probate Court also may remove the guardian.

Marriage of a minor will terminate the guardianship of the person, but not the estate of the minor.

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, and 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.  The resigning guardian of the estate is required to file a final accounting within 30 days and transfer all of the assets to the successor guardian. The resigning guardian is required to facilitate the transition of all of the information regarding the minor’s personal care, health and needs to the successor and to deliver all of the minor’s personal records to the successor.  When accepting the initial appointment the guardian committed to act in the best interests of the minor and that obligation extends through the date the resignation is approved.

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

How Is a Guardian Compensated?
The family member serving as a guardian for a minor child will not be compensated for the services as guardian.  Compensation for a non-family third-party guardian of a minor shall not be approved unless the minor has assets from which payment may be made.

Can a Guardian establish a STABLE Account for a Minor with the Minor's Assets or Income?  

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 a 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 website 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 especially if they are 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, sanction and even criminal charges.  The attorney fees for services to the guardianship are generally approved 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. 

 

SETTLEMENT OF CLAIMS FOR PERSONAL INJURIES
(Minors and Incompetents)
Probate Court approval is required for the settlement of any claims for personal injuries to an incompetent person or a minor.  Any settlement for an incompetent or a minor attempted without prior court approval is a nullity.  Parents and guardians may file suit on behalf of the ward or child, and may negotiate proposed settlements, however the actual settlement, authority to execute releases, and receive proceeds for the incompetent or the minor requires probate court approval.

Who Applies For the Authority to Settle the Claim?
If there is a guardian already appointed for the incompetent or the ward whose claim is being settled, then the guardian makes the application.

What if there is no Guardian Appointed?
If the net amount of the claim that will pass to a minor is $25,000 or less and the proceeds are other than from the settlement of a wrongful death claim, then the custodial parent may apply for the settlement approval without the appointment of a guardian.  If there is no guardian for an incompetent, no living parent for a minor, or if the net settlement amount exceeds $25,000, then a guardian must be appointed.  If expedient, the application for appointment of the guardian and the application to settle may be filed and heard contemporaneously.

Who Protects the Minor’s Interest if there is No Guardian or the Guardian has a Conflict of Interest?
The Court has the discretion of appointing counsel to represent the minor and to present the minor’s position on the adequacy and terms of the settlement.  The Court may also, or alternatively, appoint a guardian ad litem to advocate what the guardian ad litem believes is in the minor’s best interest.  The source for payment of the compensation and fees of the appointed attorney and guardian ad litem will be determined by the Court and those potential sources include, but are not limited to, the settlement proceeds, the parents, and the guardianship assets.

Where Can I Read More About Funds Passing to A Minor?
Helpful information about handling funds passing to a minor is available on this website under the separate Minor’s Claims/Funds Account tab as Frequently Asked Questions.

Additional information