Explaining what a guardian is, when one’s needed
The term guardianship or guardian, in the case of an adult, is defined by Ohio law as someone appointed by a probate court to be legally responsible for another person and/or for another person’s property when that person is unable to manage his or her personal needs or property because of a mental disability.
The term guardianship or guardian can be confusing as people often think of the term as referring to some type of custodial relationship for a child; however, the term, in the case of an adult, is defined by Ohio law as someone appointed by a probate court to be legally responsible for another person (ward) and/or for another person’s property (estate) when that person is unable to manage his or her personal needs or property because of a mental disability.
The mental disability that gives rise to the need for a guardian could be due to one of several things. It could mean the person in need of a guardian has cognitive disabilities that make them eligible for services through the Board of Developmental Disabilities. It also could mean the person is incompetent by reason of a severe mental illness, or it could mean the person is suffering from cognitive decline such as one sees in an individual who has Alzheimer’s disease or another form of dementia.
Guardianship vs. power of attorney
A power of attorney refers to the power conferred when one is appointed “attorney in fact” for another person. An individual who is competent and thus knows and understands his or her personal affairs can sign a special document giving authority to a trusted person to assist in making decisions and handling financial and other matters. There also are power of attorney documents specific to healthcare that allow a trusted individual to assist in making medical and end-of-life decisions, as well as allowing that person to obtain HIPAA-protected healthcare information from medical providers.
While a guardianship requires court involvement for the guardian to act and make decisions, a power of attorney occurs outside of court oversight and involvement. Both a guardianship and a power of attorney require the person selected to make decisions in the best interests of the individual. A power of attorney cannot act against the stated wishes of the individual as long as that individual has the mental capacity for decision-making. In the case of a guardian, while the ward may express what he/she does not want and his/her wishes must be taken into account, the guardian has the final authority, acting in tandem with the probate court, to make decisions for the individual as the individual has been deemed incompetent and therefore incapable of making decisions by virtue of the guardianship itself.
How a guardian is appointed
There are key probate forms one must file to initiate a guardianship proceeding including an application by the prospective guardian, a list of eligible family members and a medical evaluation, among other forms. A guardian also can be nominated in a power of attorney document. A guardian, even a family member guardian, must be background-checked, attend a training course and provide annual reports to the probate court about the ward.
Additionally, the guardian must attend training classes each year and furnish proof of that training to the probate court. If an individual in need of a guardian has no family living in Ohio, the probate court must appoint a trusted Ohio resident as guardian. Thus, if the prospective ward does not have family or friends in the state of Ohio, the Wayne County Volunteer Guardianship Association, a local nonprofit organization, can be a potential means of finding a background-checked and trained volunteer to serve in that capacity. The organization is always seeking volunteers willing to serve in this capacity. For more information about how to help, visit www.waynecountyguardianship.org.
In summary it is always a good idea to have a discussion about these types of matters with family and with a trusted and experienced attorney in advance of the need for any of these documents.