For many reasons, whether they are physical or mental, a person over the age of 18 years old may not be able to care for themselves. When an individual is disabled and cannot make financial decisions or health care decisions on their own, another person can apply for guardianship over that individual if they believe the person to be incompetent.
Jerrold Goldstein, partner at Weston Hurd, and Ethan Welch, attorney at Hickman & Lowder, both in Cleveland, said guardianship is an important process when it comes to caring for an “incompetent” individual.
Probate court determines when someone is incompetent. In order to make that distinction, the proposed guardian would go to court and complete an application. A statement of expert evaluation would then be carried out by a medical doctor or clinical psychologist to determine the state of the incompetent individual or ward.
“Let’s assume it’s a standard guardianship where mom is getting up there in years,” Goldstein said. “She’s forgetting things, she’s wandering around, and somebody says, ‘Well, we have to take care of her, we need a guardian.’ Whoever that member of the family is, goes to the probate court, gets an application to be appointed guardian for an adult, starts filling it out and puts out some basic information. Part of the process requires that there be an evaluation by a professional psychologist or social worker.”
Parents are natural guardians of their children when they are under 18. Once a person becomes 18, that person is deemed a legally competent person. If a person has a disability, they are still deemed a competent person after they turn 18, unless the proposed guardians go through the proper process with the court.
“For instance, someone that was born with Down syndrome or cerebral palsy, and they’re confined to a wheelchair and are unable to communicate,” Welch said. “They’re still a legally competent person without that court declaration. At that point in time, his parents would apply to be a guardian of their adult disabled child at age 18.”
Of course, it is possible for a person to be denied guardianship if the court does not think they are fit to be a guardian. Welch said the court is the ultimate guardian, and the ultimate decision maker. They are the ones that determine whether a person is incompetent. The person applying to be guardian has to have a conversation with other family members, with an attorney, counsel with an attorney whether a guardianship is necessary. Then, the court must approve the guardianship.
“The court is looking for the least intrusive means,” Welch said. “And what that means is, the court is wondering if this person can sign a power of attorney, if this person has the capability of understanding power of attorney and appointing someone to be his power of attorney. If not, then a guardianship is the only route.”
Some reasons why a person might be denied being a guardian is if they are a felon or have a history of drug abuse.
Welch said the day-to-day responsibilities of the guardian are similar to when they were just the parent of the minor child.
“There’s two types of guardianships in Ohio,” Welch said. “There’s a guardian of the estate, and a guardian of the person. Guardian of the person deals with everything health-wise. Being able to speak to doctors, hospitals, and placement, like where that person is going to live. This could be at home, at a facility or group home. And they also handle the education of the ward.”
Goldstein said there’s two sides to supervision. There’s accounting supervision, which regards financial matters, and personal supervision is also vital in guardianship, he said.
“There are some serious guidelines in terms of how one conducts your practice as a guardian and you need to follow them,” Goldstein said. “You can’t just put the ward away and just be done with it. You have to be on site, you have to visit, you have to see what’s going on and be in contact with your nursing facilities or with a ward directly if they’re not being cared for.”