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What
is a guardian?
A guardian is a person appointed by a probate court to be legally responsible
for another person and/or for another person's property. While individuals are
usually appointed to serve as guardians, a corporation or association may
also serve in that capacity. A person for whom a guardian has been appointed
is called a "ward."
Why
are guardians appointed?
A guardian is appointed by the court to oversee the legal and financial
affairs (and/or the personal care) of a minor, or of an adult who is not able
to manage his or her own affairs because of advanced age or some other
physical or mental disability. A guardianship may be voluntary, which
means the guardian is appointed at the request of the ward, or it may be
involuntary if family members or others ask the court to act to protect
someone who appears to be incompetent. Once appointed, a guardian is
answerable to the court for providing proper care and management of the ward's
affairs in the ward's best interest.
What
are the general powers and duties of a guardian?
The control that a guardian has over a ward is limited to the authority
granted by Ohio statutes, relevant decisions of Ohio courts, and orders and
rules of the probate court. All guardians must obey the orders and
judgments of the probate court by which they were appointed. The probate
court may confer broad and far-reaching powers on a guardian, or it may limit
or deny any power granted under Ohio statutes or Ohio case law. Ohio law
provides for different types of guardianships (listed below).
What
are the types of guardianships?
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A "guardian of the person" is appointed to protect and have
physical custody of a ward to provide for the ward's day-to-day
maintenance, paid from the ward's assets. Maintenance means providing
food, shelter, clothing, health care and other necessities. It includes
responsibility for the education of a minor ward as required by law, and making
decisions about medical treatment and other professional services the ward may
require. A guardian of the person also serves as guardian of an
incompetent adult's minor children, if no other guardian has been appointed
for them. Only a "natural person" (not a bank or a company)
can be appointed as a guardian of the person.
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A "guardian of the estate"
is appointed to manage the property and financial assets of the ward for
the ward's best interests. Specifically, the guardian of the
estate must: |
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pay
all debts owed by the ward; |
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collect
all money owed to the ward; |
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settle
and adjust any assets received from the executor or administrator of an
estate; |
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deposit
all funds of the ward into an account in the name of the guardian as
fiduciary; |
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invest
any of the ward's funds not needed for current obligations according to
legal guidelines; |
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file
an official inventory and accounts of the ward's estate with the court
on a regular basis; |
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file
or defend lawsuits on behalf of the ward if necessary to protect his or
her interests. |
(Note:
Unless the court order appointing a guardian specifies otherwise, the same
person is normally named as both guardian of the person and the estate.)
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A "limited guardian" is a
guardian whose powers are specifically limited by the probate
court. A ward for whom a limited guardian has been appointed
retains all rights in all areas not covered by the Order of Limited
Guardianship. |
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An "interim guardian" is a
guardian appointed after a former guardian has been removed or resigns
when the welfare of the ward requires immediate action. |
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An "emergency guardian" is
a guardian appointed by the probate court without formal hearing when an
emergency exists and a guardian is necessary to prevent injury to the
person or estate of the ward. |
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A "conservator" is a
person appointed by the probate court at the request of a mentally
competent adult who is physically unable to manage certain aspects of
his or her life. The person requesting the appointment of a
conservator specifies the powers requested on the Petition for
Conservatorship. |
What
is included in a guardian's inventory?
A guardian of the estate of a ward must file an inventory of the ward's
assets within three months after appointment. The inventory must list
all real and personal property of the ward and the annual value of the rental
of any real estate.
The
probate court may require that the inventory be supported by evidence and that
the guardian produce prior income tax returns, bank statements, Social
Security records of the ward or any other relevant documents. In
addition, the probate court may appoint an examiner or assign court employees
to conduct an investigation to verify the accuracy of the inventory. At
the time he or she is appointed, a guardian may not open a ward's safety
deposit box until it has been audited by the county auditor of the appropriate
county involved.
What
is a guardian's account?
Every guardian, except a guardian of the person only, must file an account
in the probate court at least once every two years, or more often if local
court rules require it. A final account must be filed within 30 days
after the termination of the guardianship. This account must include an
itemized statement of all receipts, disbursements and distributions made from
the ward's estate. All transactions must be verified by vouchers or
proof, unless a corporate fiduciary is involved. The accounting must
also contain an itemized statement of all funds, assets and investments in the
guardian's hands at the end of the accounting period, and any changes in
investments since the last account was filed. Actual securities and
passbooks or bank statements must be exhibited to the probate court for
examination, and the account must be made on the signature and oath of the
guardian.
A
"guardian of the person only" may also be ordered to provide an
accounting from time to time for good cause shown on the court's own motion or
on motion by any interested party.
What
is a guardian's report?
A formal guardian's report to the probate court is now required of all
guardians of incompetent persons. This report must be filed two years
after the date of a guardian's appointment, and every two years
thereafter. It is generally filed with the guardian's account. The
probate court, on motion or by rule, has the authority to require such a
report at any time.
The
guardian's report must be made on a court-prescribed form, and must contain a
great deal of specific information, including a list of the number and nature
of contacts with the ward over the period covered by the report; any major
changes in the ward's physical or mental condition observed by the guardian;
the guardian's opinion as to the necessity for continuing the guardianship and
the adequacy of the care that the ward is receiving; and the date that the
ward last saw a physician. The purpose of the report is to assist the
probate court in determining if the guardianship should be continued.
The court may appoint an investigator to verify the report.
How
can I be an effective guardian?
The key to being an effective guardian is to have as much knowledge about
and direct contact with the ward as possible. The guardian should make
every attempt to have a positive relationship with the ward, visit and
communicate with the ward often and generally demonstrate personal concern for
the ward and his or her well being.
It is
also important to establish and maintain a positive relationship with all of
the ward's family members. A guardian will find that he or she can avoid
problems and complications by keeping all family members informed of what is
going on with the guardianship, and actively inviting them to participate to
the extent practical. Problems rarely arise in those guardianships where
the guardian makes both the ward and his or her family members feel that they
are important members of a team.
If I
am named as guardian, what help should I seek?
No sensible person would engage "just anyone" to fill a loved
one's tooth or remove an appendix. Likewise, a guardian should be
careful in taking advice regarding his or her duties to the ward. A
lawyer can help you understand and fulfill your legal duties as a guardian,
and avoid mistakes or oversights that could result in serious harm to your
ward or his or her family. Ohio's laws regarding the appointment and
conduct of guardians are not simple. Understanding and complying with
them calls for professional expertise.
Where
can I get more information?
If you or someone close to you needs information on how to set up a legal
guardianship, contact the probate court in your county and ask friends and
family members for the name of an attorney who is knowledgeable about probate
matters. If necessary, contact the lawyer referral service operated by
your local bar association or one nearby. Check the Yellow Pages under
"associations" or "attorney referral services".
The
information contained in this pamphlet is general and should not be applied to
specific legal problems without first consulting your own attorney.
(Updated
10/15/2003)
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Judge Jack R. Puffenberger