How Elder Guardianship Works
How Ohio courts assign decision-making authorities when an elder can no longer tend to their needsBy Judy Malmon, J.D. | Last updated on August 22, 2022
The aging of our parents can present many thorny questions, and at times there’s a fine line between what we think is helping and what’s perceived as meddling or taking control. And yet, leaving things go for too long can leave an incapacitated parent without assistance when it’s needed. When is the right time for your dad to stop driving? When does mom need someone to balance her bank account and pay her bills for her?
How you handle a loved one’s incapacity will depend on whether steps have been taken in advance, or a situation is upon you and it’s too late to apply earlier options. Legal tools like durable powers of attorney and health care directives (which includes living will and health care power of attorney) allow someone to designate, while still competent, a caregiver to manage finances or make medical decisions for them in the event they become unable to do so themselves. Sometimes, however, we don’t have as much time as we think, or circumstances change overnight.
If you have a parent who now needs someone to make decisions on their behalf, but they no longer have the ability to name someone, you may need to seek an appointed guardian. Guardianship is an involuntary proceeding in an Ohio probate court, intended to protect an incompetent or incapacitated person. Incompetence is defined as “so mentally impaired, as a result of a mental or physical illness or disability … that the person is incapable of taking proper care of the person’s self or property.”
There are several categories of guardianship. Because appointing a legal guardian deprives the ward (person over whom the guardianship is granted) of significant individual rights, courts have a strong preference for the least restrictive option that will meet the person’s needs. Options are:
- Guardianship of the Estate: provides the authority to make financial decisions, including paying or collecting debts, managing investments and making purchases
- Guardianship of the Person: authority to manage the ward’s personal needs, including where they live, medical care decisions and choices about food, clothing, recreation and personal care
- Guardianship of the Person and Estate: comprehensive guardianship, with legal authority to make all decisions on the ward’s behalf
- Limited Guardianship: restricts the powers granted to the guardian to only those areas where there is a need, such as for a medical care decision
- Co-Guardianship: more than one individual may serve equally as guardians
- Emergency Guardianship: allows the probate court to issue an order without a hearing where circumstances require swift action to prevent injury to either the person or the estate of someone who is incompetent. An emergency order lasts for up to 72 hours, and may be extended, but for no longer than 30 days.
- Conservatorship (or “voluntary guardianship”): there is no requirement or finding of incompetency here, merely an individual who has difficulty managing certain aspects of their life requesting the court to appoint someone to assist them and assign specific powers. A conservatorship will terminate upon a finding of incompetency.
While powers of attorney and advance directives may be completed without the assistance of an attorney, seeking a guardianship is a fairly complicated process, requiring court filings and a hearing. Talk to an Ohio attorney experienced in elder law for assistance with your situation. For more information on this area, see our overview of elder law.
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