Guardianship Litigation & Disputes

The court appointment of a guardian under Ohio law is often an emotional and contentious issue.

A guardian can be appointed for a minor child (in situations where there is no parent or the parent is incapable of acting as guardian) or for an adult who in incapacitated or has been judged to be incompetent to handle their own affiars.

A guardian is a person, association or corporation appointed by a probate court to be legally responsible for an incompetent person and/or the person’s property. Most commonly, individuals are appointed to serve as guardians. The person for whom a guardian has been appointed is called the ward.

In most cases, this will be a close relative. However, another individual, such as an attorney, or even a corporation, may be awarded guardianship. You may also nominate someone to be your guardian via a Last Will and Testament, or other legal document, including a financial power of attorney or healthcare power of attorney. Appointment of a guardian is an involuntary action taken by the court, which must be supported by a statement of expert evaluation. This is usually completed by a physician and attests to the fact that the ward is incapcitated or incompetent by other means, including dementia or substance abuse.

Conversely, a conservator is someone appointed by a competent adult to handle some or all of his or her affairs, as outlined by the parameters of the conservatorship.

Those who disagree with the need for a guardian, or an apparent choice of guardian, should seek the immediate assistance of a Cleveland guardianship attorney with significant probate court experience. Once appointed, a guardian is typically granted broad powers, including:

• Paying debts owed by the ward.
• Collect all money owed to the ward.
• Managing all assets of a ward.
• Deposit all funds of the ward into an account in the name of the guardian.
• Invest any of the ward’s funds.
• File with the court an official inventory of the ward’s assets and how those assets are being utilized.
• Selling ward assets.
• Defending the ward’s interests in court.

With such responsibility comes significant liabilities and guardians are required to be bonded and insured for twice the amount of a ward’s assets, excluding real estate. This typically means the guardian will have to have good credit.

Common disputes involving guardianships include:

• The need for a guardian in cases where there is disagreement by the ward or other family members that the ward is incompetent or unable to handle his or her own affars.
• The selection of a particular person to act as a guardian.
• Undue influence by a guardian.
• Self-dealing or fraud on the part of the guardian.
• Failure to file periodic accounting and other paperwork as directed by the court.
• Failure to act in a ward’s best interests.
• Failure to competently execute guardianship duties, often involving timely payment of debts and handling of assets.

Unfortunately, an experienced guardianship attorney in Cleveland is often not contacted until after substantial improprieties are uncovered. Whether you are applying for guardianship, or have concerns about the appointment or performance of a guardian, seeking qualified legal help as early as possible in the process is always the best course of action.

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.