Guardianships And Conservatorships

What is a Guardianship?
A guardianship is an involuntary trust relationship in which one party, called a guardian, acts for an individual called the ward. The law regards the ward as incapable of managing his or her own person and/or affairs.

What is a Guardian?
A guardian is an individual appointed by the Probate Court to protect, make decisions for, and act for a person in need of a guardian. The person who needs a guardian is known as a ward. A guardian of an adult ward receives Letters of Authority to act as guardian after the Probate Court has determined at a hearing that: 1. The proposed ward is incompetent, that is "so mentally impaired that he is incapable of taking proper care of himself or his property"; and 2. The proposed guardian is a suitable person for appointment as guardian.

Who needs a Guardian?
A guardian may be appointed for either an incompetent or minor, which are defined by statute as: Incompetent: 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 he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state. Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted. Minor Settlement: Natural parents do not have inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $10,000, the Court will require the appointment of a guardian of an estate.

Who chooses the Guardian?
The Court appoints the guardian. However, a minor over 14, or the parents by will, may suggest a guardian for a minor. In addition, an adult, while competent, may nominate a guardian to serve in the event of incapacity. Appointment Procedure 1. Application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion. 2. Application must include a statement of the guardian's willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist. 3. The prospective ward, as well as the adult next-of-kin, are notified of the impending guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator. 4. An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator, which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship. 5. Formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands his duties.

Rights of the Ward
The prospective ward has the right to be present at the hearing, to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.

Court Supervision
The Probate Court is the superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:

Accountings: A guardian of the estate must file a written account with the Court annually as to the income and expenses of the ward's estate.

Reports: Guardians of minors and guardians of incompetent wards must file a written report annually. The report concerns the status of the ward and continued need for the guardianship.

Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian's fee, or remove the guardian.

Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.

Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvements to real estate, mortgaging real estate, selling assets of the ward, or settling any personal injury claim for the ward.

Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.

Types of Guardianships Person and/or Estate: A guardian may be appointed either a guardian of the person, a guardian of the estate, or both. A guardian of the person has custody of, controls, and protects, the person of the ward. A guardian of the estate controls and protects the assets or property of the ward.

Limited: A guardian may be appointed with limited powers to make restricted or specific decisions of the ward. The ward retains all powers not granted to the guardian.

Emergency: In an emergency in which significant injury to a prospective ward may occur unless immediate action is taken, the Court may appoint an emergency guardian for 72 hours.

Fees
A guardian's compensation and attorney's fees are set by Court rule, and must be approved prior to fees being paid. Termination A Court order will terminate a guardianship upon the death of a ward, upon the ward being adjudged competent or, in the case of a minor, upon reaching the age of majority eighteen (18). A Motion for termination of a guardianship of an incompetent may be filed 120 days after an appointment of a guardian, and once every year thereafter. Alternatives To Guardianship The law requires that no guardian should be appointed if less restrictive alternatives to a guardianship exist. Except for Representative-Custodial Payee, all alternatives involve a person who has capacity, or is competent, to grant powers. If the person does not have capacity when the powers are granted, they are subject to challenge and may be void.

Conservatorship - What is a Conservatorship?
A conservatorship is a voluntary trust relationship using guardianship laws and procedures as its basis, in which one party, known as a conservator, acts with Court supervision of a competent, physically-infirm adult, who is called a conservatee.

Who chooses the Conservator?
A conservatorship is based on the consent of the person for whom the conservatorship is to benefit. Thus, the conservatee decides who will serve as conservator, and what property and powers of the conservatee will be included in the conservatorship. In addition, the conservatee decides which of the guardianship duties and procedures the conservator follows and the Court enforces.

What is the Court's Role?
After a petition is filed, and the matter heard, the Court will determine if the petitioner is infirm, the petition is voluntary and the conservator is suitable. If the petition is granted, the Court, while the conservatorship exists, will apply the laws and procedures of Ohio pertaining to guardianship, except those excluded by the conservatee.

How is the Conservatorship Terminated?
A conservatorship is terminated by judicial determination of incompetency, the death of the conservatee, the Order of the Probate Court, or the execution of a written termination notice by the conservatee.

Power of Attorney - What is a Power of Attorney?
A Power of Attorney is a written authorization for an agent to perform specified acts, either personal (health care) or estate (property) on behalf of a principal.

Types of Power of Attorney Durable: A Power of Attorney in which the powers granted remain in effect in the event of the grantor's incapacity or on being adjudged incompetent.

Springing: A Power of Attorney in which the powers granted become effective when the grantor becomes incapacitated or is adjudged incompetent.

Health Care: A durable Power of Attorney that may be used to authorize health care decisions in the event of incapacity. Execution of Powers of Attorney Certain Powers of Attorney, such as those involving transfer of real property, required recording, and must be executed in a specific manner. It is recommended that legal advice be obtained before executing Powers of Attorney as an alternative to guardianship. In addition, there are few safeguards or protections from abuse or misuse of Powers of Attorney. For that reason, before execution, the agent of the Power of Attorney should be of good character, and be very carefully chosen. Intervivos Trust An Intervivos trust is a confidential relationship involving a trustee, usually a bank, who manages only the property of a living person for the benefit of that person or someone else. Banks often require a minimum trust amount. Representative-Custodial Payee A Representative-Custodial Payee is an individual authorized to receive and expend Social Security, Supplemental Security Income, or Veteran's benefits, on behalf of the recipient, based upon a Court finding of mental incompetence or on submission of evidence to the Social Security or Veterans Administrations of mental or physical incapacity which impairs the ability to manage funds.

ADOPTIONS

Who May Adopt? 1. A husband and wife jointly. 2. Step-parent. 3. Single Adult.

Who May be Adopted?
1. Minor child.

2. An adult person determined to be totally and permanently disabled or mentally retarded.

3. An adult may adopt another adult provided a parent-child relationship existed during the adoptee's minority.

What are the Types of Adoption?
1. Agency: When an agency licensed by the State of Ohio originates and handles the adoption process, Probate Court involvement is limited to the final stages of the adoption. It is the agency who approves the placement, conducts the home study, and recommends the adoption to the Court. Adoption agencies have trained, professional staff, and use legal counsel to insure that adoptions are legally, effectively, and efficiently handled.

2. Independent Adoption: In this instance, a licensed adoption agency is not involved. It is generally handled by a private attorney, working directly with the Court. On occasion, the child may be related to persons seeking to adopt, such as a grandchild, niece, nephew, etc. Other times, there is no relationship between the child to be adopted and those adopting.

3. Step-parent: The person seeking to adopt is either a step-father or step-mother. The parent whose right is being terminated must consent unless his or her consent is not required.

4. Interstate Adoptions: Where a child is born in one state and the adopting parents are residents of another state, both State's Departments of Human Services must be involved through the interstate Compact. The Probate Court will supervise these proceedings.

5. Foreign Adoptions: If an Ohio family adopts a child born in another country, the adoption is considered a Foreign Adoption. Adoption may occur in the country of birth or in Ohio. All foreign adoptions must be processed through the U.S. Department of Immigration and Naturalization.

Who Must Consent?
The parents of the child to be adopted, a minor being adopted who is over the age of twelve (12) years, and an adult adoptee must consent to adoption. However, under certain circumstances, consent may be waived. Therefore, questions concerning consent should be directed to an agency or attorney.

What are the Rights of an Unwed Father?
An unwed father, known as a putative father, may preserve his rights to consent to an adoption of a child born after January 1, 1997, by registering with the Ohio Department of Human Services, Putative Father Registry. Registration must occur either prior to birth, or no later than thirty (30) days after birth. As to the rights of a putative father prior to January 1, 1997, contact an agency or attorney. See the section titled Where can I Obtain Information About Adoptions for address of Putative Father Registry.

What is an Open Adoption?
As an alternative to a traditional closed adoption where identities are not disclosed, an open adoption occurs when both the natural and adopting parents, prior to the adoption, voluntarily disclose their identities to each other. Open adoption law applies only to non-relative adoptions, and may involve a non-binding agreement for contact between the adopted child and the natural parent(s). However, all parental control of the adopted child remains with the adopting parents. For more information on open adoptions, contact an agency or attorney.

Where Should I File for Adoption?
Since the Probate Court has exclusive jurisdiction over Adoptions, you are required to file in the Probate Court of the County where any one of the following apply: 1. The Agency having custody of the child is located. 2. The child was born. 3. The person or persons seeking to adopt reside. 4. Person is stationed in Military Service. 5. In an independent placement: where the natural parent resides.

Is a Home Study Necessary?
Yes. Regardless of the type of adoption, a home study is required. An individual known as an assessor, who is qualified and trained for the task, will complete the home study.

Must I have an Attorney?
Yes. Only an attorney or agency may arrange an adoption. However, in the case of a step-parent adoption, check with your local Court to determine if an attorney is required.

Must I Appear in Court?
Yes. It is mandatory, whether adopting through an agency, or independently, that the person adopting and the child or children sought to be adopted appear before the Probate Court for the final hearing. In certain circumstances, there may be other appearances required. Any exceptions can only be granted by the Court for good cause shown.

Access to Adoption Files?
Adoption files are confidential, and closed to the public. The adoptee or adopting parents, however, may obtain the following information: 1. Medical Information: Generally, all adoption records are open for the purpose of obtaining the medical background of biological parents. The Court or agency involved in the adoption should be contacted for that information. 2. Identifying Information: Biological Parents: Prior to 1964: Copies of the original birth certificate may be obtained from the State Bureau of Vital Statistics. 1964-1996: Adoption records for this period are closed. Identifying information will be released only if the biological parent(s), or an adult sibling, has signed an authorization for Release of Information. 1996 to date: Since 9-18-96, adoption records are open unless the biological parent(s) have requested that identifying information be withheld. The State Bureau of Vital Statistics should be contacted. See the section titled Where can I Obtain Information About Adoptions for address of The State Bureau of Vital Statistics.

Is the Birth Certificate Changed?
Yes. The original birth certificate will be sealed and a new birth certificate issued. The adopting parent or parents will be reflected on the birth certificate, just as though they had been the biological parents. Adopted children born in Ohio or a foreign country, receive their new birth certificate from the Bureau of Vital Statistics, Columbus, Ohio. Children adopted in Ohio, but born in other states, obtain their new birth certificates from the Bureau of Vital Statistics in the state where they were born.

Where can I Obtain Information About Adoptions?
Check your telephone book if an address or telephone number is not listed below.

1. County Agency Children Services Board 264 S. Arlington St. Akron, OH 44306-1399 330.379.2083 www.summitkids.org

2. Private Agencies Akron Bar Association (For referral to attorney who specializes in adoption law) 7 W. Bowery St. Akron, OH 44308 330.253.5007 www.akronbar.org Private Adoption Agencies (Consult the yellow pages under "Adoption Services")

3. State Agencies Bureau of Vital Statistics Ohio Department of Health 35 E. Chestnut St., 6th Floor P.O. Box 15098 Columbus, OH 43215ñ0098 614.466.2531 www.odh.state.oh.us Ohio Putative Father Registry 30 E. Broad St., Floor 31 Columbus, OH 43266-0423 1.888.313.3100 Ohio Department of Human Services 30 E. Broad St., Floor 31 Columbus, OH 43266-0423 http://www.state.oh.us/odjfs