Guardianships: A Brief Overview

What is a guardianship?

A guardianship is a legal relationship established by the court because of (1) age of the ward; or (2) incapacity of the ward.    In cases where a person is under the age of eighteen and in the absence of parent(s), the law requires a person be appointed to be a guardian over the minor.  A guardianship is also ordered In the event that a person is adjudged to be incompetent per the Code:

(D) “Incompetent” means any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide, or any person confined to a correctional institution within this state.

Who may be a guardian?

In both Ohio and Florida, guardians may be related parties, professional persons, and or just persons  interested in the welfare and care of the ward.  In each instance, the court will consider the background of the nominated guardian to ensure that the individual is of good character and has not been convicted of certain crimes.

Who may be a ward?

A ward, or principal, is anyone who fits the criteria of an incompetent party or a person of minority status.  This is where the process gets interesting. Although minor status in Ohio and Florida is easily determinable (you are either under the statutorily prescribed age or you are not), incapacities are not always so easily determinable.  The starting point for a guardianship process is usually an evaluation conducted by a physician.  However, and in instances where the potential ward simply does not go to the doctor for an evaluation, the starting point may simply be ‘strange behavior’.  In any event and upon reasonable belief, the court may order an involuntary civil commitment, whereby a potential ward is subject to hospitalization for review and determination on whether or not a guardianship is necessary.  Any interested party may petition the court for this commitment and expert evaluation.

Cultural Considerations:

With the continual drawing and redrawing of societal norms and acceptable behavior, the guardianship process is not a black and white step by step procedure.  Knowing when to file a guardianship or request often falls to those persons who are closest to the Ward, i.e. the family and friends.  This may be a painful but necessary process, as the interested party does not want to be seen as encroaching upon the independence and desires of the Ward.  In many cases, potential ‘wards’ are being privately cared for by family and friends without court supervision and largely through the principal’s powers of attorney.  In the absence of faithful and trusted caregivers, a principal may be in a dangerous situation either through elder abuse or self neglect.

A guardianship may be an extreme result and should be weighed against the rights of the principal whom the guardianship is sought.  In all cases, persons should approach the action with care and reverence for the principal and the process.

 

 

This article was written by Jessica B. Moon, Attorney licensed in Ohio and Florida.   David Bacon; Jeffrey Roth; and Jessica Moon are members in Roth & Bacon Attorneys, LLC.  The Offices are located in Upper Sandusky, Marion, and Port Clinton, Ohio, and Fort Myers, Florida. They have focused their practice to provide estate and business planning concepts to their clients. Nothing in this article is intended for, nor should be relied upon as individual legal advice. The purpose of this article is to help educate the public on concepts of law as they pertain to estate and business planning.  Copyright @ Jessica B. Moon 2015.

Leave a Reply

*

captcha *