Expert Evaluation Requirement in Ohio Guardianships
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.
Who Can Complete an Expert Evaluation in an Ohio Guardianship?
A Statement of Expert Evaluation in support of an application for an Ohio guardianship needs to be completed by either a licensed clinical psychologist or a licensed physician. A statement can be completed by any qualifying professional who has examined the proposed ward, but it is preferable to have it filled out by a doctor or psychologist who has a long history of working with the proposed ward and can speak more knowledgeably about their capacities.
When Does the Statement of Expert Evaluation Need to Be Completed?
The Statement of Expert Evaluation needs to be completed prior to the filing of an Application for Guardianship and should be filed with, or attached to, the application.
Does the Statement of Expert Evaluation Declare Someone Incompetent?
The statement itself does not declare someone legally incompetent such that they must have a guardian. It is evidence that is considered, and typically strongly relied upon, by the probate court in making that determination.
How Recent Does the Statement of Expert Evaluation Need to Be?
The Statement of Expert Evaluation must be filed with the probate court within 90 days of its completion by an eligible doctor or psychologist. If you get a statement, then decide not to apply for guardianship, and change your mind four months later, you will need to have a new statement completed.
Do I Have to Update the Statement of Expert Evaluation?
Yes. Once the ward is declared incompetent and you are appointed guardian, you will need to periodically submit additional Statements of Expert Evaluation to the probate court. Some courts require an annual statement; others require them only every other year. Ask your probate attorney about your local requirements, or check directly with the probate court. As with an initial statement, subsequent statements need to be filed with the court within 90 days of completion by a professional and must be attached to the guardian’s report. The court can suspend in writing the requirement for subsequent reports, depending on the circumstances.
Statements of Expert Evaluation attached to a guardian’s report can be completed by a licensed doctor or licensed clinical psychologist, but may also be completed by a licensed independent social worker, a licensed professional clinical counselor, or a mental retardation team.
What Must the Statement of Expert Evaluation Contain?
The Statement of Expert Evaluation should be completed by a specialist in the area of the incompetency, such as a psychiatrist for a person with schizophrenia. The statement must:
- Identify the professional completing the evaluation and the date and place of the evaluation, as well as how long he or she has been treating or working with the proposed ward;
- Disclose the amount of time spent on the evaluation;
- Give the professional’s opinion on whether the patient is mentally impaired and describe the reason for that impairment;
- Indicate whether the patient is on any medication, the names and dosages, and whether the professional believes that the medication itself may be contributing to impairment;
- Describe the professionals observations during the examination, including the patient’s orientation, thought process, memory, and judgment;
- Indicate whether there are any physical impairments or indications of abuse, neglect, or exploitation;
- Provide the professional’s opinion as to whether the patient is capable of managing their activities of daily living or medical and personal decisions;
- Provide the professional’s opinion as to whether the patient is capable of managing their finances and property;
- Indicate whether the patient’s condition is stabilized or reversible;
- Give the professional’s opinion as to whether guardianship should be established or continued, or denied or terminated.
In general, probate courts prefer to have as much information as possible on which to base their decision, so there is room on the form for the professional to provide additional comments.
What if the Proposed Ward Won’t See a Doctor?
This is a frequent challenge for families; in some cases, the very condition that causes a patient to need a guardian also makes them incapable of seeing that need. Patients with dementia, for example, may become very defensive and insist there is nothing wrong with them.
If a patient has been evaluated and disagrees with the evaluation, they have the right to an independent evaluation.
What if the Proposed Ward is a Danger to Self or Others?
Ohio law provides for emergency guardianship if you can prove to the court that the proposed ward is an immediate danger to self or others. As a practical matter, meeting this burden is very difficult to do, and courts almost never grant emergency guardianships. In the very few instances when they do, the emergency guardianship is for a very brief period, often only 72 hours.
If you have further questions about the expert evaluation requirement in Ohio guardianships, contact an experienced Ohio probate attorney.
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