A number of high-profile guardianship cases in recent years have highlighted some of the concerns that come with placing someone into an involuntary guardianship. Celebrities like Brittany Spears, Amanda Bynes, Casey Kasem, Mickey Rooney and Zsa Zsa Gabor have brought to light guardianship or conservatorship abuses that can result from relinquishing the rights to make financial or medical decisions.
In Ohio, a
guardianship is involuntarily established by the court after a finding that an adult is incapciated or medically incompetent to handle his or her own affairs. A court-appointed guardian is then empowered to handle the affairs of the “ward.” Typically, the court will choose a close relative to be guardian, but a friend or professional, such as an attorney, may also be chosen. Even a corporation can be awarded guardianship under Ohio law. A ward may choose in advance who they would like to have appointed guardian, by identifying the person as part of a
Last Will and Testament or other estate-planning document, such as a financial power of attorney or health care power of attorney.
Establishment of a guardian requires 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.
Guardianship Alternatives and Ward Rights
Limited guardianships, interim guardianships and emergency guardianships are all alternatives that may better suit specific purposes while better protecting the rights of a ward. Health care powers of attorney or financial powers of attorney may also more narrowly surrender ward rights, although these come with their own drawbacks, primarily that they typically do not fall under the supervision of the court.
In any case, wards are owed a number of protections under Ohio law, including:
- To object to the guardianship
- To legal representation, even if a ward cannot afford an attorney
- The right of the ward to be present at any hearings
- The right to receive notices and written records of any hearings or court proceedings
- The right to have a friend or family member of his or her choice present
- The right to prevent his or physician, and certain other professionals, from offering testimony against a ward’s wishes.
- The right to have an independent medical evaluation.
Terminating an Ohio Guardianship
Under Ohio law, a guardianship is terminated whenever need for it no longer exists. However, this can be deceptively complex. What if, for example, the ward never thought the need existed in the first place, as has been the case with several high-profile celebrity guardianships in recent years?
A Cleveland guardianship attorney will be in the best position to advise you of your rights depending on the facts and circumstances of your particular case. However, it’s worth noting that if a ward is intent enough on fighting guardianship to speak to an attorney, that is usually a pretty good sign of a level of competence that may speak to the court. After all, the vast majority of guardianships are put in place for wards who are very clearly incapcitated or otherwise unable to handle their own affairs, such as those who are comatose, or those suffering from severe dementia, or other end-of-life issues.
There are a number of ways a guardianship is terminated in Ohio:
- A ward is judged no longer incompetent.
- A ward dies.
- A ward’s estate is depleted.
If a ward marries, guardianship would be terminated over a ward’s person, but not over the estate.
Of course a guardian can also be removed for incompetence, improper or fradulent conduct, or
for other cause. However, typically that would not undermine the underlying need for a guardian and so another person or entity would be assigned guardianship.
The Law Offices of Daniel McGowan, LLC is a full-service law practice, with extensive experience in the areas of litigation and trial practice, elder law, and probate law and trust law. Daniel McGowan is well known for his experience with the probate process and Florida, Pennsylvania and Ohio and probate courts. He has a reputation for being accessible and for his thoughtful and innovative manner he solves probate problems and other civil disputes.
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.
