What is a Guardian, Ward and a Guardianship?
A guardian is a person or entity appointed by probate court. A guardian acts on behalf of an incompetent person or a minor, called a ward. A guardian can oversee legal and financial matters or the personal care of a ward or both. The relationship between the guardian and ward is a guardianship. Family members often are appointed as guardians. An agency or bank may be appointed as guardian of the estate if no family member is able to step in.
Probate court decides if a guardian is necessary. The court decides what powers the guardian should have to protect to the ward. Probate court will determine if a person cannot handle their own affairs. Guardians are appointed only for incompetent persons or for minors.
An incompetent person is mentally impaired as the result of a physical or mental illness, disability or chronic substance abuse. And either:
is incapable of caring for himself or his property; or
fails to provide for his family or other persons as required by law.
Any person confined to a correctional institution in Ohio is also considered an incompetent.
A competent adult whose physical health is failing can request another type of a guardian called a conservator. The adult can grant specific powers to a conservator to help with personal care or financial management. This is a voluntary matter. Probate court must decide if the conservator is suitable.
Types of Guardianships
A guardian of the person is responsible for the day to day needs of the ward. This includes providing food, shelter, clothing, health care and necessities.
A guardian of the estate manages the property and financial affairs of the ward. This includes paying debts, investing assets and managing property of the ward.
A guardian appointed with specific limited powers is a limited guardian. The ward keeps all rights that have not been granted to the guardian by the probate court.
An interim guardian can be appointed by probate court if a guardian is removed or resigns.
Probate Court can appoint an emergency guardian if immediate action is required to prevent significant injury to the person or estate of a minor or incompetent. An emergency guardianship lasts only three days.
Appointment of a Guardian
A person or the court can begin a guardianship proceeding. The prospective ward has certain rights:
to have an independent attorney of his choice;
to have a friend or family member of his choice present at the hearing;
to have an independent expert evaluation;
if the ward has low income, to have the attorney and expert evaluator appointed at court expense.
A probate court investigator will make a recommendation to the court. The burden of proving incompetence is by clear and convincing evidence.
Alternatively, a person can name another person to be his/her guardian in a durable power of attorney or similar document.
Usually, a person seeking to be guardian must file a bond in probate court. The bond is like insurance to protect the ward’s property. The bond protects the property from unlawful action by the guardian. The amount of the bond is fixed by the court. The bond can be waived, depending on the ward’s assets.
Powers and Duties of a Guardian
Probate court sets the powers and duties of guardians under law. Guardians must act in the best interest of the ward. Guardians must seek approval from probate court for certain actions. Probate court is called the ‘superior guardian’.
Duty to File Reports and Accounts
Every two years the guardian of an incompetent person must file a report with the probate court giving specific information about the ward and the guardianship. The court must determine that the guardian is acting in the ward’s best interest and that there is a need for the guardianship to continue.
An account must be filed by a guardian of the estate or conservator every two years. The account shows all receipts and disbursements by the guardian. It includes a statement of all of the ward’s property held by the guardian.
Termination of the Guardianship
Probate court can end a guardianship if it is no longer needed. Probate court can set a hearing to take evidence about changes to the ward’s physical and mental condition. The guardianship of a minor ends when the ward turns 18 years old. The marriage of a minor ends the guardianship over the person but not over the property.
This article is meant to give you general information and not to give you specific legal advice.
Prepared by Community Legal Aid Services, Inc. Updated May 2012.