Guardianship

Aler Stallings

If an individual becomes incapacitated, it may be necessary for the court to appoint someone to act as their legal guardian.

This process is called obtaining guardianship.  Doing so allows the named guardian to make legal decisions for the incapacitated person (the “ward.”). If you find yourself dealing with a loved one who suffers from dementia, Alzheimer’s, or another condition that makes it impossible for them to manage their affairs, you may need to obtain guardianship.

What Can a Guardian Do?

The control that a guardian has over a ward is limited to the authority granted by Ohio statutes, relevant decisions of Ohio courts and orders and rules of the probate court.  All guardians must obey the orders and judgments of the probate court by which they were appointed.  The probate court may confer broad and far-reaching powers on a guardian, or it may limit or deny any power granted under Ohio statutes or Ohio case law.

What are the Types of Guardianship?

When it comes to elder law, there are two primary types of guardianship.  A guardian of the person is appointed to protect and have physical custody of a ward and to provide for the ward’s day-to-day maintenance.  Maintenance includes providing food, shelter, clothing, health care and other necessities.  It includes making decisions about medical treatment and other professional services the ward may require.  A guardian of the person also serves as guardian of an incompetent adult’s minor children, if no other guardian has been appointed for them.  Only a “natural person” (not a bank or a company) can be appointed as a guardian of the person.

A guardian of the estate is appointed to manage the property and financial assets of the ward for the ward’s best interests.  Specifically, the guardian of the estate handles collecting income, paying debts, and investing assets.  A guardian of the estate must also file an inventory and account for the ward’s assets with the probate court on a regular basis. Often, the same person is named as guardian of the person and the estate, if both are required.

How is Guardianship Different from Power of Attorney?

Both power of attorney and legal guardianship grant someone the ability to make legally binding decisions for another. The main difference is how the person is granted this authority. With a power of attorney document, the person is knowingly appointing someone to act on their behalf if he or she cannot make decisions. In the absence of a power of attorney, the court determines that a person is incapacitated and appoints a guardian.

Do you believe a loved one needs a guardian? If so, contact AlerStallings today for help with the legal process.