216.242.6054

FREE CONSULTATION | Call 216.242.6054

Blog

Ohio Guardianship Lawyer

November 18, 2021, by Daniel McGowan, on Probate Law and Procedure |

The Important Role of Guardians

Guardians of adults are legal decision makes responsible for making health or economic decisions on behalf of someone else.  The reasons for a guardianship vary considerably from person to person but they always involve physical or mental conditions that impair a person's ability to make decisions on behalf of him/herself.  Guardianship is considered by many to be a part-social, part-legal relationship.  While a guardianship can only be established through a legal proceeding, the duties of the Guardian are usually carried out in a social service context.

If you or a loved one have questions regarding the process for establishing an adult guardianship in Ohio, or need representation to either establish or oppose a guardianship in Ohio, you may call our office for a free consultation 216-242-6054 in Ohio and 954-400-5034 in Florida.

Less Restrictive Alternatives to Guardianship

A Power of Attorney (POA) is a directive authorized by statute.  (Revised Code Chapter 1337 et seq.). A POA will often be specific to finances or health care.  A POA will often be specific to finances or health care.  A POA allows an individual, called the principal, to delegate to a third party the authority to become his/her agent and make decisions regarding matters that the principal is unable to make.  For a POA to be effective as an alternative to guardianship, the POA must be "durable."  That means the principal (who created the power of attorney) specifically intends for the agent to have authority to act on his/her behalf after the principal becomes incapacitated or incompetent. 

The scope of power delegated to an agent may be broad or narrow depending on how the POA was drafted.  It is imperative that all POA documents be carefully read and reviewed to gain a clear understanding of how they apply in a guardianship setting.  All POAs should be presented to the Court for proper consideration as a less restrictive alternative. 

The Guardianship Hearing Process

The appointment hearing consists of two parts

(a) Is Guardianship necessary? 

(b) Who is a suitable guardian?

Prehearing discovery is allowed.  The burden of proof is on the applicant to convince the court by clear and convincing evidence that the ward is incompetent and that the applicant is a suitable guardian. 

Clear and convincing evidence is the evidentiary standard that must be met.  Clear and convincing evidence is the amount of evidence necessary to instill in the judge a firm belief or conviction.  Cross v. Ledford, 161 Ohio St. 469 (1954).  

Termination/Restoration

Guardianship is always a last resort and accordingly it should be terminated at the earliest opportunity.  Only a probate court can terminate a guardianship and so the guardian must report facts or events supporting termination to the probate court.  Reasons for the termination of a guardianship include:

A.  Less Restrictive Alternatives become known.

B.  Restoration of Competency

If there is a change in circumstances, probate courts can make a finding that competency has been restored to the ward.  If at any time the guardian believes that the guardianship is no longer necessary, then the guardian should report that fact and the basis for the guardian's belief to the probate court.

A ward has the right to request the termination of a guardianship and have a review hearing on an annual basis.