Legal guardianship is an important tool that can assist adults who cannot make important life decisions on their own. By filing for legal guardianship, a family member or another responsible adult is granted the legal authority to make decisions regarding the residential, medical, and financial needs of a mentally incompetent adult.
Guardianship creates a legal relationship where one person (the guardian) has legal authority over another adult (the ward) due to incapacity. The guardian is legally responsible for caring for the ward and their property.
Filing for Guardianship in Ohio
In Ohio, legal guardianship is obtained by filing an Application for Guardianship in the probate court of the county where the proposed ward resides. Generally, the proposed ward must have been a resident of Ohio for at least six months prior to the filing of the application for adult guardianship. The applicant may be required to obtain a bond and must agree to perform the responsibilities of a guardian.
A probate court investigator will visit the proposed ward to perform an independent assessment to determine whether the proposed ward needs legal guardianship. The applicant must also obtain an expert evaluation, which is often performed by the proposed ward’s physician, who must file a Statement of Expert Evaluation. The court will then schedule a hearing to determine whether guardianship is necessary and whether the applicant is suitable.
Exploring Alternatives to Adult Guardianship
Because guardianship significantly limits the ward’s freedom, courts are required to explore less restrictive options before granting adult guardianship. Becoming a legal guardian represents a significant time commitment, and the guardian will be closely monitored by the courts. Therefore, it is wise to consider the following less restrictive alternatives to guardianship for adults.
Power of Attorney
If the older adult can still understand the decisions they are making, a power of attorney might be a more flexible option.
A power of attorney is a written authorization that allows an appointed person to act as an agent on behalf of the principal. The older adult can execute a power of attorney that authorizes someone to make financial, legal, and medical decisions on their behalf if they are unable or unwilling to do so. A power of attorney creates a fiduciary relationship, and the agent is legally required to make decisions that are in the best interest of the principal. A power of attorney can be revoked at any time.
Trusts
A trust is another alternative to adult guardianship. When a trust is formed, the grantor gives property to a trustee to hold on behalf of a beneficiary.
An older person can create a trust and name the trustee of their choice. Different types of trusts are available that can be tailored to your unique situation and used as a less restrictive alternative to adult guardianship.
Shared Accounts
If you are primarily concerned with managing the financial decisions of an older relative, shared bank accounts are another alternative that allow you to monitor financial transactions and place limits on withdrawals while avoiding the expense and need for the court oversight required in a guardianship.
By sharing account ownership, the older adult gives another person authority to make decisions regarding the use of jointly owned property. The older adult retains substantial rights and control over their property while avoiding the reporting and financial requirements of a guardianship.
Conservatorship
Conservatorship is another alternative to adult guardianship. Unlike guardianship, which is an involuntary process, in a conservatorship, the ward must be mentally competent and asks the probate court to appoint a conservator to manage certain aspects of their life. Once a conservator is appointed, they generally have the same power and duty to act in the best interest of the ward as in a guardianship.
Contact RKPT to Explore Alternatives to Adult Guardianship
If you have an aging relative who is becoming less mentally capable and needs help making important life decisions, you may be considering guardianship or conservatorship. But there are drawbacks to consider, such as a loss of independence, frustration by the ward, and significant expense and court oversight.
Our lawyers have extensive experience helping families navigate the complex needs of aging relatives. We have offices in Cincinnati and Blue Ash, and invite you to contact us for more information and to schedule a consultation to discuss your situation and how we can help.
