Foreword
This booklet offers a brief but comprehensive, non-legalistic
overview of guardianship in Ohio, especially for families who
have a child with mental retardation. Much of the information
is also relevant concerning someone with mental illness, or concerning
someone who has lost competence as the result of an injury or
the effects of aging.
About the Author
David Zwyer, Esq., is Executive Director of the Ohio Developmental
Disabilities Council. He has been speaking to parents about guardianship
and estate planning issues for more than 20 years. Dave is also
a past Chairman of the Disability Law Committee of the Ohio State
Bar Association.
About the Ohio DD Council
The Ohio Developmental Disabilities Council is a planning and
advocacy group of 35 members appointed by the Governor. ODDC receives
and disseminates federal funds in the form of grant projects to
create visions, influence public policy, pilot new approaches,
empower individuals and families and advocate for systems change.
Contents
Parents as Guardians
Who needs a Guardian?
Types of Guardianship
Less restrictive forms of Guardianship
What rights are taken away when a Guardian is appointed?
Alternatives to Guardianship
Residency requirement for Ohio Guardians
Immunity for Ohio Guardians
Conflict of interest provision concerning providers of services
Choosing a Guardian
Guardianship agency for those without available family
Naming Guardians in a Will
The application process/fees
What happens at the hearing?
Do I need an Attorney to apply for Guardianship?
Reporting Requirements
Rights/duties/responsibilities of Guardians
What if a Guardian does not appear to be doing a good job?
Guardianship in a Medicaid world
Terminating Guardianship
Resource
Parents as Guardians
The natural guardianship of parents – that is their
parental rights and control over their child – ends when
their children reach the age of 18 in Ohio. At that point, they
no longer have the legal ability to make decisions and sign consent
forms for their child, and they may be excluded from participating
in decisions their child makes. Many parents who have a child
with a disability struggle to decide if they need to remain the
decision-makers in their child’s life. If they decide to
seek guardianship when their child turns 18, they must go to their
local probate court, fill out and submit an application for guardianship.
Who needs a Guardian?
Two prerequisites should exist before a court appoints a guardian.
The first is that the individual must be incompetent
in at least one important area of his/her life. That decision
is often easy to determine as a result of real-life experiences.
Can the person take care of himself and his property, or is he
at risk if left on his own?
Second, there must also be a present need for
the guardianship. A person may have significant deficits in his
life, but his support network – families, friends, service
providers, etc. – may be so strong that guardianship is not
necessary. The expression, "If it ain’t broke, don’t
fix it" may be applicable. If guardianship does become necessary
at a later point in the individual’s life, it can be sought
at that time.
There are some situations where guardianship may be an asset
to protecting someone’s health and safety, to asserting their
rights, and even to helping someone express himself. An individual
who is nonverbal and who has profound mental retardation, may
well need a guardian, especially if he resides in an institutional
setting without family support and monitoring. An individual may
well need a guardian if his mental capacity is in doubt and if
he at the same time has significant medical issues that require
frequent consent to medical procedures.
In accord with the principle of self-determination, it may
also be useful – in assessing whether or not person needs
a guardian – to evaluate the extent to which the individual
can participate in the decisions that affect his own life.
Types of Guardianship
There are several types of guardianship in Ohio:
Guardianship of the Estate – Gives the guardian
the ability to make all financial decisions for the subject of
the guardianship (i.e., the ward).
Guardianship of the Person – Gives the guardian
the ability to make all decisions of a more personal nature (i.e.,
all decisions except financial decisions) on behalf of the ward.
Such decisions would include such things as medical consents,
consents to IHPs (individual habilitation plans), consent to
participate in Special Olympics, to have a photo of the individual
used, etc.
Plenary Guardianship, or Guardianship of Person
and Estate – Gives the guardian the ability to make
nearly all decisions for the individual, and combines the authority
of Guardianship of Person and Guardianship of Estate.
Emergency guardianship – allows a court to intervene
to appoint someone on short notice. Probate courts are often
reluctant to appoint emergency guardians.
Interim guardianship – allows a court to appoint
someone on a temporary or interim basis because the former guardian
is no longer available.
Guardian ad litem – is a different type of guardianship
where a guardian is appointed for the very specific purpose of
representing a minor or someone who is allegedly incompetent
during the course of a particular type of litigation. A guardian
ad litem’s authority ends when the litigation ends.
Co-Guardianship – is where two people are appointed
to act as guardian for someone at the same time. In other words,
two people share the guardianship responsibilities. Co-guardianship
is probably not a good idea in a divorce situation, or a situation
where there is animosity between the potential co-guardians.
Less restrictive forms of Guardianship
Finally, there is limited guardianship that allows a
probate court to appoint someone as guardian over only the portion
of a person’s life where he is both incompetent and has a
need. Thus, you might have a limited guardian for medical purposes
only (i.e., to provide consent for medical procedures), or for
placement purposes only, or for the limited purpose of approving
behavior plans and/or psychotropic medications. This is the least
restrictive form of guardianship and should be utilized whenever
possible. (See O.R.C. Section 2111.02.)
What rights are taken away when a Guardian is appointed?
The rights taken away depend upon the type of guardian who
is appointed. If a Plenary Guardian (i.e., Guardian of Person
AND Estate) is appointed, then nearly all of an individual’s
rights are taken away and given to a guardian to exercise on his
behalf. The person has, in essence, been determined by a court
to be totally incompetent in the eyes of the law.
The loss of personal rights is why guardianship is a very
serious step, and one only to be taken as a matter of last resort.
That is why a Limited Guardianship that identifies and limits
a specific area in an individual’s life, and does not affect
any other rights, is much to be preferred if guardianship is necessary.
That is also why the alternatives to guardianship listed below
should be considered before guardianship.
Although it is a serious thing to take one individual’s
rights away and give them to someone else to exercise, we need
to recognize that many parents and other guardians end up doing
this for their children/wards not to punish or control them, but
to speak and advocate for/with them, to protect their health and
safety, and to help them exercise rights they never could have
exercised on their own. Often the Guardian is the person who knows
the individual the best, and is best situated to speak for and
advocate for him – even more so if the guardian is a parent
or sibling. In addition, the guardian may be the one person who
is a constant in the ward’s life as direct care staff and
professionals come and go.
Other areas of the individual’s life may touch upon fundamental
rights or a right of privacy. There may be certain medical procedures
that a probate court will not allow a guardian to give consent
to such as abortion, sterilization or sex change. However, despite
some reluctance, courts may terminate the natural guardianship
of a parent over his/her minor children when the parent has a
mental disability if the court believes it is necessary to do
so for the welfare of the child. Likewise, courts may prevent
or nullify the marriage of a ward, especially if the marriage
takes place without the guardian’s consent.
It is also important to recognize that some rights are personal
to the individual and cannot be exercised by a guardian. A guardian
cannot make a Will or execute a Power of Attorney for his ward.
In addition, voting is a fundamental right. Unless a court specifically
rules that a person is incompetent for purposes of voting, an
individual retains the right to vote – even if he has a Plenary
Guardian.
Alternatives to Guardianship
1) Representative Payeeship – If the only significant
income an individual receives is his monthly SSI check, it may
not be necessary for a person to have a Guardian of the Estate
or a Plenary Guardian. A Representative Payee may be able to handle
all relevant financial matters. A Guardian of the Person (perhaps
the type of guardian most commonly appointed by Probate Courts)
or a Limited Guardian could handle all other matters. A Guardianship
of the Estate involves a lot of "red tape" and is to
be avoided, if possible.
A Representative Payeeship or Authorized Representative may
also be available for other state and federal benefit or entitlement
programs including but not limited to regular Social Security,
SSDI, VA benefits, Railroad Retirement Benefits, welfare benefits,
and Black Lung benefits.
2) Trust – A Trust might be used instead of a Guardianship
of the Estate, to handle funds for the individual.
3) Conservatorship – If an individual is mentally
competent but has a physical disability, he can ask the Probate
Court to appoint a Conservator for him. He can select the Conservator,
discharge the Conservator if he is unhappy with him or if his
physical disability decreases; and he can specify to the Court
just what authority he wants the Conservator to have.
4) Adult Protective Services – A Court may order
a County Board of MR/DD to provide protective services for a short
time to an adult with mental retardation or other developmental
disability who is being abused or neglected, if that adult lacks
the capacity to make decisions to protect himself. (See Revised
Code Section 5126.30 et seq.)
If the individual who needs assistance is over age 60, he might
also be eligible for other protective services available to the
elderly.
5) Protection Orders – An individual may also be
able to ask that a Court order someone who is hurting him or threatening
to hurt him to stay away from him and not have any contact with
him. Why take away an individual’s rights through a guardianship
in order to keep him safe, when it might be possible to accomplish
the same thing with a Court order of protection.
6) Powers of Attorney – In theory, a power
of attorney is of limited usefulness when given by a person with
an ongoing mental disability such as mental retardation. A person
must be competent himself in order to give valid authority to
act to someone else in a legal document known as a Power of Attorney.
In reality, however, many people, including parents
of adult children with mental retardation, often claim authority
to represent the individual though a Power of Attorney. Such claims
would probably not withstand a legal challenge.
An example of a more appropriate use of a power of attorney
would be when a competent, healthy person gives someone else the
power to make health care decisions for him at a later time if
he becomes unable to make decisions for himself as a result of
an accident, aging, etc., through a Durable Power of Attorney
for Health Care.
To sum up, a Power of Attorney is clearly an alternative to
guardianship if made by a person when they were competent. It
is much less valuable as an alternative if the competency of the
maker of the Power of Attorney has always been in doubt, such
as when the maker is a person who has always had mental retardation.
7) Circle of Support/Volunteer Advocate/Good Programs &
Services – An alternative to guardianship might be to
rally those people important to an individual around him to make
sure he has a support system that meets all his needs and advocates
in his behalf.
8) Microboard – A new concept that originated in
Canada and is in use in a few states such as Tennessee, Maryland
and Missouri, is for an individual’s circle of support to
formalize their involvement by incorporating, with the individual
as the Chairman of the Board! Such a legal entity can be of benefit
in our complex Medicaid world, including in the hiring and firing
of staff, and negotiating with the service delivery system. Microboards
are being explored in several Ohio counties at the present time.
Residency requirement for Ohio Guardians
Guardians are not required to live in the same state to be
appointed as guardian for minor children pursuant to a parent’s
Will. However, in order for one person to serve as guardian for
an adult in Ohio, he must live in the same state. A reason for
that requirement is that it is difficult for a guardian to carry
out his duties if the guardian does not have frequent face-to-face
contact with his ward (i.e., the subject of the guardianship).
[See O.R.C. Section 2109.21(C) which states that "A guardian
... shall be removed on proof that he is no longer a resident
of this state."] This requirement may not make sense when
the proposed guardian lives just across the state line. Some probate
courts appear to interpret this requirement more strictly than
others. Some may even allow a local person to be appointed as
a co-guardian with someone who lives out of state, such as a parent
who has retired and moved to Florida.
Immunity for Ohio Guardians
Ohio law also provides personal immunity for a person while
he is acting as guardian, as long as he does not act negligently
or outside the scope of his authority as guardian. To have protection
under this section of the law, it is only necessary that the person
make it clear that he is acting in his official capacity as guardian.
(See O.R.C. 2111.151.) For example, he should sign all documents
with his name, and write "as guardian" immediately after
his name. As a result of this provision, a person should not have
to worry about exposing his personal assets when he considers
becoming a guardian.
Conflict of interest provision concerning providers of services
A recently enacted provision prohibits someone who is providing
services to an individual from also serving as his guardian. (See
O.R.C. 5123.93 which states, "In no case shall the guardianship
of a person with mental retardation be assigned to ... a person
or agency who provides services to the person with mental retardation.")
The rationale for this provision is that it would be impossible
for a person who is providing services to also be an effective
advocate against the service provider (himself). There is an exception
to this prohibition where there is a relationship of blood or
marriage between the proposed guardian and ward.
Choosing a Guardian
Parents of an individual with mental retardation should not
automatically assume that one of the individual’s siblings
is willing to become guardian for the individual when they (i.e.,
the parents) can no longer serve in that capacity. The willingness
of the sibling to serve as guardian should be thoroughly discussed
with the parents, and the wishes of the individual should be considered.
When possible, a family member who knows the individual well and
is interested in his welfare should be selected. For someone to
be considered for Guardianship of the Estate, that person should
have some skill in managing finances and business affairs. If
a person needs a guardian and no family member is willing to serve,
a Court may appoint a local attorney to carry out that role. Sometimes,
such an appointment can be a real disservice to the individual.
Even if he handles matters professionally, the attorney doesn’t
have the personal interest to prompt him to really get to know
and get involved with the individual.
Guardianship agency for those without available family
The Ohio Department of MR/DD also provides the services of
a nonprofit agency to act as guardian for those who need it and
have no one else available in their lives. For more information,
contact Advocacy and Protective Services, Inc. (APSI) at 1-800-282-9363.
Naming Guardians in a Will
Nominating someone in a Will to serve as guardian doesn’t
make it happen automatically, unless the ward is a minor. The
person nominated needs to go to probate court and file an application
to be appointed as guardian by the Court.
If you are going to nominate guardians in a Will as a way of
expressing your wishes, consider nominating the guardians 3-deep
– a primary and 2 backups. The individual with the disability
may outlive his parents by 30 – 40 years, and it is really
hard to anticipate who will be around during his lifetime. At
least one of those nominated should be the same age or younger
than the individual. Even in situations where the parents did
not serve as guardians, they may wish to nominate guardians in
case guardianship would ever become necessary.
The application process/fees
Each county probate court has its own set of application forms
that must be completed to start the process. Included in those
forms is a Statement of Expert Evaluation that must be filled
out by a physician or a licensed clinical psychologist. The forms
and fees vary somewhat from county to county. The application
should be filed in the county in which the individual resides.
It would not be unusual to have fees of $150 with $75 due when
the application is submitted, and the remaining $75 due when the
guardianship is awarded. If the applicant cannot pay the fees,
the applicant can ask that the indigent guardianship fund be used
to cover those expenses. In the alternative, the applicant might
indicate that he cannot afford to pay the application fee and
ask that it be waived. With either alternative, it may be helpful
for the applicant to file an affidavit of indigency with the Court
– a notarized statement in which the applicant swears he
does not have sufficient funds to pay the application fee.
The court will send notice that the guardianship application
has been filed to all next of kin who live in the state, in case
they wish to object to the guardianship. It will also ask a Probate
Court Investigator to interview the prospective ward and people
who know him, and to make a recommendation to the probate court
as to whether the guardianship is necessary.
What happens at the hearing?
Finally the Court will set the matter for hearing, often before
a magistrate instead of the judge himself. If everyone is in agreement
that the guardianship is necessary, or if no one appears to object,
then a letter of guardianship is awarded. If anyone objects, including
the individual himself, then the hearing becomes more like a trial
where witnesses will be examined and cross-examined.
The subject of the application has the right to object to having
a guardian appointed for him, and has several other due process
rights, including the right:
- To have an attorney represent him, even if he cannot afford
one himself;
- To be present during the hearing;
- To prevent his personal physician and certain other parties
from testifying against him, and
- To have an independent evaluation.
Do I need an Attorney to apply for Guardianship?
In some counties, it will be necessary to have an attorney
to file the guardianship application in probate court. That is
especially true where the application is for a Guardianship of
the Estate where a bond will also have to be posted. It is also
true in some of the larger urban counties where it can be a formidable
task to negotiate the probate court system. However, it is often
worthwhile to contact the Clerk of the probate court. He/she knows
what is going on and can be very helpful.
Reporting Requirements
The law requires a guardian to file a report with the probate
court at least every 2 years, but some courts require the Guardian’s
Report on an annual basis. Not only will guardians be required
to state whether or not there is a need for the guardianship to
continue, but they also have to submit another Statement of Expert
Evaluation signed by either a physician, a licensed social worker,
a licensed clinical psychologist, or the person’s mental
retardation team.
Guardians of the Estate are required to report on an annual
basis as to how they spent the funds of the ward on his behalf
during the prior year. (Guardians of the Estate are required to
get permission from the Probate Court prior to making such expenditures,
unless such authority is specifically granted in their Letter
of Guardianship or other order of the court.) Guardians are required
to do an accounting and submit receipts for all such expenditures.
Guardianship of the Estate is enough of a hassle that it should
be avoided when possible, perhaps though use of a Trust or a Representative
Payee.
Rights/duties/responsibilities of Guardians
Guardians owe a fiduciary duty – a special duty –
to act in the best interest of their ward. In order to do that,
they should see their ward often, and ask the ward what he wants
in a given situation.
A guardian’s authority derives from the probate court,
the Superior Guardian. As such, the guardian should be able to
seek advice from the probate court as to his duties. The guardian
may need to submit a Motion to ask the Court what to do in a given
situation.
The authority of a guardian is restricted to that given to
him in his Letter of Guardianship. If the guardianship awarded
is a Plenary Guardianship (Guardianship of Person and Estate),
the authority of the guardian has very few limits, but is as complete
as allowed by Ohio law and the probate court with jurisdiction
of the guardianship.
Ohio law also indicates that a guardian "shall be the
guardian of the minor children of his ward" unless the court
appoints someone else. (Revised Code Section 2111.02)
What if a Guardian does not appear to be doing a good job?
Anyone may question whether or not a person is carrying out
his duties as guardian, either by contacting the Judge, the Probate
Court Investigator or the Clerk of the court. However, it may
be necessary to bring the matter to the Judge’s attention
formally with a Motion to Review the Guardianship, or a Motion
to Instruct the Guardian.
Guardianship in a Medicaid world
The MR/DD service delivery system is increasingly turning to
Medicaid to pay for many services. Medicaid often likes to deal
with someone they consider to be a legally responsible party.
If Medicaid officials doubt the competence of someone with mental
retardation, for example, to speak for himself, they may insist
that the person be represented by a guardian. Medical providers,
too, often will refuse to accept consent from someone with a disability.
Terminating Guardianships
Sometimes it becomes apparent that a guardianship never should
have been granted for a certain individual, even for some individuals
with mental retardation. In such cases, it is appropriate to approach
a Probate Court with a Motion to Terminate a Guardianship, or
a Motion to Reduce a Guardianship to a Limited Guardianship. There
are also provisions in the law where the ward may submit a motion
to the Court asking that the guardianship be terminated. However,
a Court may be reluctant to terminate a guardianship where the
underlying condition that justified the guardianship (e.g., mental
retardation) has not been cured.
When a guardian resigns, moves out of state or dies, the ward
is left in legal limbo – still determined incompetent by
a probate court in at least some areas of his life, but with no
one who can legally act for him. That is why it is important to
notify a probate court, the superior guardian, when a guardian
is no longer available.
Also, note Section 2111.45 of the Revised Code that indicates
that, "The marriage of a ward shall terminate the guardianship
as to the person, but not as to the estate, of the ward."
This law is based on the assumption that a spouse will now oversee
the personal needs of the individual.
Resource
In case an individual would need legal assistance in order
to contest a guardianship, or in case an individual would want
information about his legal rights in a guardianship matter, he
might contact the Ohio Legal Rights Service at 1-800-282-9181.