GUARDIANSHIP AND MENTAL HEALTH LAW
Watching a loved one's physical or mental health deteriorate can be very scary. You’re likely concerned about their well-being and quality of life. If your loved one is struggling to manage their own affairs, guardianship is one of many tools you can use to protect their best interest.
A guardian is a person who has been appointed by the Probate Court to make decisions on behalf of another person, called a ward. A person may need a guardian when they are no longer able to care for themselves and/or manage their own affairs. The elderly and the disabled are among the most common adult groups that need a guardian. If you are concerned about your loved one, and their ability to manage their own affairs, the experienced guardianship attorneys at DuPont and Blumensitel in Dublin, Ohio can help. Call our office at 614-389-9711 to discuss your options.
WHEN IS A GUARDIANSHIP NEEDED?
An adult may need a guardian if they become unable to manage their own affairs due to physical and/or mental incapacity. A person may also need a guardian if they are unable to care for themselves and require assistance with their daily activities. This includes things like eating, bathing, dressing, taking medications, and managing finances.
TYPES OF GUARDIANSHIP
There are many different types of guardianships in the state of Ohio. The following are the most common.
A guardian of the person is assigned physical custody of the ward. They are tasked with protecting the ward, making healthcare decisions for them, and generally providing for their daily needs.
A guardian of the estate is tasked with managing the ward's property and financial assets.
A guardian of the person and the estate is tasked with protecting the ward's best interests, making healthcare decisions for them, providing for their day-to-day needs, and managing their financial affairs.
A limited guardian is appointed to make decisions on behalf of the ward in specific areas where they are unable to do so themselves. For example, a limited guardian may be appointed to only make healthcare decisions for the ward. Their powers are limited by the Probate Court.
An emergency guardian is assigned by the probate court without a formal hearing and only when necessary to prevent immediate harm to the ward and their property.
HOW DO I APPLY TO BE GUARDIAN?
Any adult family member can apply with the county Probate Court to be guardian. However, the court will ultimately decide if a guardianship is necessary, and who the guardian should be. In some instances, no family member or friend is available to serve as guardian. In that case, there are many charities and volunteer programs available throughout Ohio that can help.
Obtaining a guardianship can be a difficult process, as there are several steps that must be taken. You will need to provide evidence that your loved one is unable to make sound decisions. A physical and/or mental evaluation done by a medical professional will be necessary. You will also need to file several documents and forms with the Probate Court and attend hearings.
WHAT ARE THE RESPONSIBILITIES OF A GUARDIAN?
The responsibilities of a guardian will differ depending on the type of guardianship.
A guardian of the person will need to go through court-ordered training on a regular basis. They will also need to report back to the court annually about their interactions with the ward, and about how the ward is doing. This is helpful in determining if a guardianship is still necessary.
A guardian of the estate has other responsibilities. They are responsible for managing the ward's assets and finances. They will need to report to the court about all transactions that have been made on the ward's estate each year.
ALTERNATIVES TO GUARDIANSHIP
If possible, it's best to put plans in place before incapacity happens and avoid the need for guardianship. There are several alternatives to guardianship you can use that are less restrictive. The following are just a few examples.
A living trust can be constructed and changed during your lifetime. This trust can be used to financially provide for loved ones with special needs.
A healthcare power of attorney allows someone to make medical decisions on your behalf when you are unable to make them yourself.
A conservatorship, in Ohio, is essentially a voluntary guardianship. It gives the conservator the power to make decisions on the other person's behalf.
WHAT ARE THE RIGHTS OF A POTENTIAL WARD?
The court recognizes that guardianships can be very restrictive. Because of this, one of the first steps in obtaining a guardianship is sending a court representative to the prospective ward. This person is called a Probate Court Investigator. They will perform an assessment and notify the prospective ward of their rights. These rights include, but are not limited to:
A right to attorney representation
A right to be present at the hearing for guardianship
A right to prove that there is a less restrictive option available
A right to contest the application for guardianship
IS GUARDIANSHIP PERMANENT?
A guardianship does not have to be permanent. A guardianship ends when the ward has restored competency, a less restrictive alternative is found, or when the ward passes away.
WHEN DO I NEED TO SEE AN ATTORNEY?
Here at DuPont & Blumenstiel, we've seen many situations where people try to start guardianships themselves, and things don't go as planned. On the surface, it may seem easy to just file the paperwork yourself. But the deeper you get into it, the more confusing it becomes. Oftentimes, hiring an attorney at the start is much cheaper than trying to bring one in after mistakes have already been made.
Call 614-389-9711 to schedule a consultation.
GREGORY S. DUPONT, GUARDIANSHIP ATTORNEY
Greg DuPont, JD, CFP®, is a well-respected estate attorney, financial advisor, public speaker, and published author. He has been serving clients as an estate and tax planning attorney since graduating from Capital University Law School in 1992 and added a wealth component to his practice over 15 years ago. He designed his firm to be the place where finance and law meet. He has been named one of Ohio’s Top 100 lawyers and was also recently named an Ohio Super Lawyer. Greg has been featured on WTVN radio and WCMH television.