If you were suddenly to become so ill that you couldn’t make healthcare decisions for yourself, who would make them on your behalf? This question has taken on a greater urgency than usual during the COVID-19 pandemic, in which people who have no symptoms on one day can be grievously ill less than a week later.
Many people assume that their next of kin, such as a spouse or an adult child, would make important healthcare decisions for them if the need arose. But what if you are in a blended family? Or if a spouse and adult child disagree, who takes priority?
Unfortunately, this is not an uncommon scenario, especially in second or subsequent marriages when the patient’s spouse is not the parent of the patient’s adult children. In that case, the question of who gets to make a decision about a patient’s health can be a thorny one. The consequences may literally be life-and-death; even if not, the dispute can cause a permanent rift in a family.
Any family can have conflicts over healthcare dec… Read More
Becoming the guardian for another adult is a serious matter. A guardian is appointed for an adult when they are deemed legally incompetent: in other words, they are so mentally impaired that they are incapable of taking care of themselves or their property. This mental impairment might be the result of a mental or physical illness; Alzheimer's or other dementia; severe developmental disability; or chronic substance abuse. Someone who is so impaired needs a legal guardian to step into their shoes and make decisions about their finances, their personal business, or both. Granting these powers to a guardian, of course, removes them from the incompetent person (also known as the ward). Ohio courts do not make this transfer of power lightly; there is an expert evaluation requirement in Ohio guardianships.
It stands to reason that a court would not create a guardianship without documentation that it is necessary. Here are the answers to some of the most common questions we get about the expert evaluation requirement.
A Statement of Expert Evaluation in support of an application for an Ohio guardian… Read More
If you are serving as the guardian over the property of a legally incapacitated adult, you are well aware of the responsibilities involved in managing your ward's property. Under Ohio law, guardians are now able to enter into consent sales of real estate in guardianship cases, if the sale of the ward's interest in real property is in the best interest of the ward. This ability facilitates the process of selling real estate for the ward's benefit.
There are four requirements to allow a consent sale to take place. First, the ward's spouse, if any, and any person entitled to inherit the real property from the incapacitated person must consent to the sale of the property. This consent must be in writing and filed with the probate court. Most county probate courts have specific forms for this purpose.
Second, when all necessary consents are filed, a bond must be executed in an amount that the probate court deems sufficient. Third, the sale of the real property must be at least 80% of the appraised value of the property as determined within the two years prior to the sale.
Lastly, in order for a consent sale of real estate to take place in a guardianship case, nei… Read More
In Ohio, a guardianship of the estate is terminated whenever the need for the guardianship no longer exists; this may be because the ward has regained the legal capacity to manage their own finances, because the ward has passed away, or because the assets in the ward's estate are so minimal that it is no longer necessary to have a guardian administer them. While marriage of a ward would terminate guardianship over the ward's person, it does not terminate guardianship over the estate.
If a ward's estate contains less than $25,000 in value, the Probate Court may determine that termination is appropriate. At that point, the court may direct that cash be deposited in a bank or other depository that is authorized to accept fiduciary funds in the name of an appropriate person the court has designated. If the assets in question do not consist of funds, the Probate Court may order that they be delivered to a suitable person that the court designates. That person must then follow the court's order as to disposition of the assets.
For whatever reason the court deems the guardianship no longer necessary, the guardian must file a final account before the guardianship will be t… Read More
Assuming guardianship of an adult's finances can require significant work on the part of a guardian, and guardians are entitled to be compensated for their work on behalf of their ward's estate. The Rules of Superintendence for the Courts of Ohio, specifically Sup.R. 73(A), dictate that fees in an Ohio Guardianship, including compensation for Ohio guardians, is to be set by local rule.
In Montgomery County, Local Rule 73.1 establishes provisions for guardian compensation. This rule permits guardians to take fees without application or a court order provided that those fees are equal to, or less than, the sum of:
You've been appointed guardian of a loved one's estate due to their legal incapacity. Your primary obligation to your ward is to manage their estate for their best interests, but what exactly does that mean? Are there any actions you're specifically required to take? How much discretion do you have, and under what circumstances are you required to ask for probate court permission to take an action on behalf of your ward?
These are questions many Ohio residents have when they suddenly find themselves responsible for another person's finances. Whether you are taking charge of the estate of an elderly parent with dementia or a sibling or adult child with a traumatic brain injury, here are some things you must understand about managing the estate of a ward in Ohio.
If your ward has cash assets, you are required to deposit those funds into an interest-bearing account in a bank or savings and loan association located within the state of Ohio. If your ward is fortunate enough to have money in excess of what is needed to pay current obligations, you must invest those funds on their behalf. There is a varie… Read More
What is a "guardian of the estate"? A guardian is a person (or, in some cases, an association or corporation) appointed by an Ohio probate court to take responsibility for a legally incompetent person, known as a ward, and/or the ward's property, or estate. Legal incompetence can arise in a number of ways. A child who is not yet an adult is legally incompetent, no matter how bright they may be. For the purposes of this article, though, when we talk about someone who is legally incompetent, we are referring to an adult, perhaps someone who has developed dementia or suffered a traumatic injury that makes them incapable of tending to their own business.
A person can nominate someone to serve as their guardian in the event that they become incapacitated, but only the Probate Court can appoint a guardian. If you are appointed as a guardian of the estate, what are your duties?
First and foremost, you mus… Read More