Frequently Asked Questions
What is Guardianship?
Guardianship is the legal process utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
What are other alternatives?
Some of the other alternatives that may be considered before guardianship are Health Care power of attorney, Power of Attorney, Representative Payee, etc.
What is a Guardian?
A guardian is any adult appointed by the Probate Court to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person. The guardian makes major life decisions for the ward who is otherwise unable to make his or her own decisions.
Where is information about guardianship found?
In Union County information about guardianship can be found by calling the Clerk of Courts office at 937-645-3029. Additional information is available on the Union county Volunteer Guardian’s website at www.ucvgp1.org. Your attorney can also provide information on guardianship.
Why might a person need a guardian?
A person is placed under guardianship if they are declared incompetent by the Probate Court. This could be due to mental illness, dementia, alcoholism, medical issues, traumatic brain injury (tbi), autism or other debilitating conditions.
Who can be a guardian?
In Ohio anyone over the age of 18 can be a guardian.
What does the word “ward” mean?
Ward is a legal term for “person under guardianship”.
TYPES OF GUARDIANSHIP
What is full Guardianship?
A full Guardianship is when a Guardian of the Person or a Guardian of the Estate or both is appointed by the court, and the court does not limit the powers of the guardian in the area in which they are appointed.
Who appoints a Guardianship?
In Ohio guardianships are appointed by the Probate Court. It is a legal appointment. The Probate Court Judge is the superior guardian in all guardianship cases. All Guardians must report annually to the Judge on the status of their wards. If the situation merits it, the Judge can rescind a guardianship appointment.
What is Guardian of the Person?
A person appointed by the court to manage the health and personal affairs of an incapacitated person.
What is Guardianship of the Estate?
A person appointed by the court to manage the financial affairs of an incapacitated person.
What is a Successor Guardian?
A person appointed by the court to succeed a guardian of an incapacitated person.
What is an Emergency Guardian?
An emergency guardianship allows the court to appoint a temporary guardian quickly if the person may be harmed during the time it would take for a regular guardian to be appointed.
What is the difference between a guardian and a Representative Payee for Supplemental Security Income (SSI) or Social Security Disability Income (SSDI)?
The Social Security Administration (SSA) can appoint a Representative Payee for someone who receives SSI or SSDI benefits if this would be in the person’s best interests due to mental or physical incapacity. Appointing a Representative Payee avoids a finding of legal incompetence and is limited to only handling the funds from the government benefits.
What is Power of Attorney (POA) for Health Care and how does it affect guardianship?
The POA is a document that a person can complete while they are still competent regarding future medical treatment and care. In the document, he/she names another person to make healthcare decisions when and if he/she becomes incapable of making his/her own decisions. He/she can also direct the types of decisions made, including short-term admission to a nursing home, end of life healthcare decisions, types of medications and other treatments to be administered. This is a formal document, which requires witnesses. A person under guardianship generally does not need a POA for Healthcare.
What is incompetence?
It is when a person is incapable of making decisions about some or all areas of life. Because of certain medical conditions, a developmental disability, mental retardation, dementia, mental illness, or the inability to communicate a person may not be able to take care of his or her own finances, make medical decisions, or understand the need for assistance with the activities of daily living.
Who decides if a person is incompetent?
A medical doctor (M.D.) or a Ph.D. level psychologist must conduct an evaluation of a person’s competence. After the probate court hears the medical testimony and reviews other reliable evidence, it may declare a person to be “incapacitated” and appoint a guardian to make decisions on the person’s behalf.
Can person regain competency after guardianship?
Yes, the individual, or any interested party, may request that the Court reconsider the person’s competency to make his/her own decision about his/her life. The ward should provide evidence of his/her competency.
The Guardianship Process
How does a person apply for guardianship?
A person applies for guardianship by filing a petition with the Union County Probate Court. There are several forms to be completed including the Statement of Expert Evaluation which is usually completed by a medical doctor (M.D.) or a Psychologist.
What does the guardianship process entail?
Once the paperwork is filed with the Probate Court, next of kin are notified of the application and a hearing is scheduled. The Court then sends an investigator out to meet with the Ward and make sure that the Ward understands what’s occurring and his/her right to contest the application for guardianship. The court will make a determination on guardianship at the hearing.
What rights does the proposed ward have during the guardianship process?
The Ward has the right to a hearing to his/her own attorney if contesting the application. The right to their own independent medical evaluation and to call and cross examine witnesses.
Is an attorney necessary to apply for guardianship?
An attorney is recommended, though not legally required.
Can a person who lives out of Union County be appointed guardian?
A person living outside of Union County could be appointed, although they would have to reassure the Court that he/she will remain involved and be available for important decision-making.
How does a person bring concerns about a guardianship before the Court?
Anyone may request the Court review specific issues or concerns about a guardianship and/or the actions of a guardian. We recommend that any concerns should be put in writing to the specific county probate court where the guardianship was originally granted. In Union County concerns should be addressed to the Probate Clerk of Courts located at 128 South Main St., Marysville, OH 43040. However they can be reached at 937645-3029.
Rights of a Ward under Guardianship
What rights does the ward retain under guardianship?
Wards under guardianship retain basic constitutional and civil rights. Limitations or restrictions on these rights can occur when there is a well-documented significant risk of harm to self or others.
Can a person challenge a guardianship?
Any interested party may challenge a guardianship and/or ask the Court to review a guardianship.
Can a person under guardianship sign a rental lease, contract to buy a car, or any other contract?
If Guardianship of the Person and Estate has been granted, the ward should not sign any legal contracts.
Can a person under guardianship admit or discharge himself from a hospital or any other health related facility?
Guardians, advocates, families, support staff, case managers, and friends all have a role in supporting and advocating for the ward’s interests and assisting him/her with decision-making. But legally the Court appointed the Guardian to make the final decision for the person under guardianship and should be involved in any plans for discharge.
Responsibilities and Rights of a Guardian
What is the standard of care for a guardian?
In Union County we follow the principal of substituted judgement which requires that the Guardian attempt to reach the decisions the incompetent person would make if that person were able to choose. This allows the guardian to make decisions in accordance with the incompetent person’s own definition of well-being.
What is the guardian’s role on any support team?
The guardian should play a key and active role on any support team and participate in finding solutions and compromises when differences occur. A guardian should be supportive of the ward and make sure that the team understands the desires and choices of the ward.
Does a Guardian of the Estate incur expenses of the ward?
No, expenses of the ward are paid out of his/her income and/or government benefits.
What is the role of the guardian in medication and healthcare issues?
Medical providers require informed consent from the Guardian of the Person before medications, admissions to a hospital or other healthcare procedures, such as surgery, are administered.
Guardians of the person should be involved any decision when discharging the ward. If a hospital discharges a patient who lacks capacity to an unsafe plan, they can face liability as to the results of the plan.
Medical providers are required to provide treatment for emergencies and life threatening medical situations with or without guardian approval. This is the same standard that applies to a person who does not have a guardian and they are unable to give consent.
The Guardian of the Person should be available for routine and acute healthcare decisions as they arise and should leave a contact number with the provider.