The issue of involuntary guardianship and conservatorships has been often in the news in recent years.
Celebrities like Britney Spears, Amanda Bynes, Casey Kasem, Mickey Rooney and Zsa Zsa Gabor have brought to light a number of issues that can occur when a conservatorship or guardianship is forced upon someone against their will, or when there is disagreement over who should be appointed to control a protected person’s financial affairs.
Other issues that commonly arise involving issues of incapacity, incompetence or undue influence, occur during estate settlement and involve changes made to a Last Will and Testament, or changes to beneficiaries named in assets that are Payable on Death or Transferable on Death, both of which are designed to transfer ownership of assets outside the supervision of probate court.
While an experienced probate lawyer in Cleveland can help you at any stage of your journey, these matters are always best handled as early as possible in the legal process. Waiting until after a court decision regarding guardianship or conservatorship, or after an estate is settled unsatisfactory, makes protecting your legal rights that much more difficult.
Under Ohio law, a guardianship is awarded involuntarily to care for the health and financial affairs of a person determined to be incapacitated or incompetent. A conservatorship is essentially a guardian who is appointed voluntarily.
Proper estate planning can be the surest way to ensure that your wishes are being followed and that, in the event a guardian becomes necessary, the role is filled by the person of your choosing. You can choose who to name as part of a Last Will and Testament or as part of a financial power of attorney or health care power of attorney. The court will appoint your chosen guardian unless the person is determined unfit or refuses to serve.
Because appointment of a guardian is by definition done involuntarily, the court will typically be provided a “statement of expert evaluation” by a physician who has determined the person is unable to make such decisions as a result of incapacitation or incompetence.
Issues that most often arise include arguments over who should be appointed guardian, contesting a ruling that a person is incompetent, or allegations that undue influence was used in cases where a ward has chosen a guardian in advance.
These issues can also arise during estate settlement. In some cases, a new Last Will and Testament may have been drafted during a time when a person was believed to lack the capacity or competence to do so.
Undue influence is also often alleged in cases where one or more family members has groomed an elderly loved one, through caretaking, living arrangements or by other means, that results in an outsized bequeath or alleged loans or gifts made during a decedent's lifetime. Named beneficiaries on assets that are payable on death or transferable on death may also be accused of using undue influence.
Because probate court is designed to settle an estate, there are very strict timelines for contesting an estate – typically six months or less. Early consultation with an experienced Cleveland probate attorney is the best bet for protecting your rights.
he most common challenge to the validity of a will or trust is undue influence. According to Ohio law, if all or any portion of a will or trust is proven to be the product of undue influence, then the whole will or trust (or that portion procured by undue influence) is invalid. Undue influence is also grounds for invalidation of pay-on-death beneficiary designations and lifetime transfers and gifts.
Undue influence is a cause of action used to challenge the validity of a testamentary document, such as a will, trust, deed, and other transfers. As Ohio courts have consistently noted, the conduct of a person charged with "undue influence, as it is required for invalidation of a will or trust, must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is the destruction of the free agency and will power of the one making the will or trust.
Undue influence is a species of fraud that is proven through circumstantial evidence. Since undue influence is not usually exercised openly in the presence of others, it can be proved by indirect evidence of facts and circumstances from which it may be inferred. No one set of facts or circumstances, when considered alone, may be of much weight, but when combined with other facts, they might be sufficient to establish the issue.
Undue influence cases in Ohio are proven through circumstantial evidence and involve a shifting burden of proof. Extensive discovery of estate planning records, medical records, and financial materials is usually required to prove undue influence cases.
Daniel McGowan represents clients in probate and estate matters throughout the Cleveland area, including Lakewood, Rocky River, Fairview Park, Shaker Heights, Cleveland Heights, South Euclid, East Cleveland, Linndale, Brooklyn, Parma, Brook Park. Newburgh Heights, Cuyahoga Heights, Brooklyn Heights, Warrensville Heights, Maple Heights, Garfield Heights, Bratenahl and Euclid.
Call 216-242-6054 today for a free and confidential consultation.