How is a Guardian Appointed for a Child When a Parent Dies?

Ohio parents usually intend to create a will and name a guardian in it for their minor children. Unfortunately, we all know someone who has died suddenly and unexpectedly, long before their time. When that happens, and the person who died leaves behind a minor child who does not have a surviving parent, a guardian must be appointed. Even if a guardian is named in a will, the court must approve that selection.

This article discusses the process that must be followed in Ohio probate courts to appoint a guardian for a child whose parents are deceased or otherwise incapacitated.

Guardian of the Person and of the Estate

At this point it should be noted that there are two types of guardian for a minor child in Ohio. You probably think of a guardian as someone who stands in the place of the parent: taking care of the child's day-to-day needs, choosing their school and doctor, getting them to appointments and extracurricular activities, and so forth. This type of guardianship is known as guardianship of the person.

However, if a child's parents have died, it's likely that the child has inherited assets and possibly the proceeds of a life insurance policy on the parents' lives. In this case, a legal adult needs to be appointed to safeguard and manage the minor child's assets. This person is known as the guardian of the estate. It is possible for the guardian of the estate and the guardian of the person to be the same person.

This has some advantages, not least of which is convenience for the guardian. Under some circumstances it may be better to have a separate guardian for the person of the child and his estate, such as a situation in which a child's uncle is a skilled money manager, but works 70 hours per week and can't care for a child, and another uncle is a stay-at-home parent. The probate court will typically appoint separate guardians only if this is deemed necessary.

Petitioning for the Appointment of a Guardian for a Minor in Ohio

If the deceased parents of the minor child have named a guardian in their will, that person will be given priority to serve as guardian, but is not guaranteed to be appointed. If the minor child is 14 or older, he or she may also request a specific person to serve as his or her guardian.

Several documents must be filed with the probate court for the county in which the child resides in order to begin the process of appointment of a guardian. These include an application for the appointment of a guardian, a complete listing of the minor child's next of kin with addresses, and a form identifying the child on which the magistrate can set a hearing on the application. Any interested person can initiate the proceedings.

After the necessary forms are filed a magistrate will be appointed and a hearing date set. The minor's next of kin must be properly served with notice of the hearing. If no one is contesting the appointment of the proposed guardian, Letters of Guardianship will be granted at the close of the hearing. If the appointment is contested, the magistrate may issue a decision at the hearing or may issue a written opinion later after having heard evidence from the parties.

If you need to pursue or contest a guardianship of a minor whose parents are deceased, you should contact an experienced Ohio probate and estate planning attorney without delay. To minimize the risk of a contested guardianship action for your own children, make sure to appoint a willing and able guardian for them in your will or in your durable power of attorney.