Why Is Guardianship for the Elderly Important Today?
The U.S. population of 65 and older reached 55.8 million in 2020, representing a 38.6% increase in 10 years, as the United States Census Bureau reported. From 1920 to 2020, the population of people over 65 grew almost five times faster than the total population. In 2020, almost one in six people in the U.S. was 65 or older. As the population ages, legal mechanisms to protect older adults become increasingly important. Guardianship laws in Ohio can help protect older adults in several important ways.
What is Guardianship of an Older Adult?
The Cornell Law School defines guardianship as the legal role given to a person (guardian) to manage the activities or resources of another person (ward) who lacks the capacity to do so. As guardianship transfers legal responsibility from one person to another, state laws regulate when and how they can be used. The court may appoint a guardian if they are deemed incapacitated and unable to make decisions. Incapacity in the elderly may result from various physical and mental conditions, including dementia and physical disabilities that impair the ability to manage one’s own affairs.
What Are Ohio Laws on Guardianship for the Elderly ?
State law on guardians and conservatorships can be found in the Ohio Revised Code, Chapter 2111. The control of a guardian over a ward is limited to the authority granted by the statutes, the court’s decisions, and the probate court’s orders and rules. The Ohio Supreme Court adopted new rules concerning adult guardianships.
These Amendments to the Supreme Court Rules of Superintendence for the Courts of Ohio took effect on June 1, 2015.
What Are the Types of Guardianship for the Elderly in Ohio?
Ohio law provides for different types of guardianship, including the following:
- Guardianship of the Person: The appointed guardian has the authority to make decisions of a personal nature on a day-to-day basis on behalf of the ward. These decisions may include arrangements for food, clothing, medical care, education, recreation, and living arrangements. A guardian of the person does not make financial decisions on the ward’s behalf.
- Guardianship of the Estate: This gives the guardian authority to make all financial decisions and manage the ward’s financial affairs. Duties may include managing assets, paying bills, and making financial decisions.
- Guardianship of the Person and Estate (Plenary Guardianship): This type of guardianship combines the authority of a guardian of the person and a guardian of the estate. The appointed guardian has the authority to make all personal and financial decisions on behalf of the ward.
- Limited Guardianship: In a limited guardianship, the probate court appoints a guardian who has authority over only certain aspects of the ward’s life, where both incompetence and a need exist, as determined by the court. For example, the court may appoint a guardian for medical purposes only to consent to medical procedures. The ward retains all rights in all other areas.
What Is the Process for Establishing Adult Guardianship in Ohio?
Establishing guardianship is a legal process involving several steps:
- Petition the court: The process of establishing adult guardianship begins with filing an application for guardianship with the probate court in the county where the older adult resides. A family member, friend, or other interested party may petition the court for guardianship.
- Hearing notice: Upon receipt of the application, the probate court will schedule a hearing and send notice to the proposed ward and the family to ensure they can participate in the proceedings.
- Evaluation of proposed ward: The court will likely order an evaluation to determine the level of capacity of the proposed ward. The assessment is conducted by a healthcare provider who provides the court with a report on the older adult’s condition.
- Hearing: A hearing is held during which the court will hear testimony from witnesses and review the evidence presented, including the evaluation report from the healthcare provider. The proposed ward has a right to attend the hearing represented by an attorney and to present their witnesses and evidence.
- Guardian appointment: If the court determines the proposed ward is incapacitated, it will appoint a guardian and issue letters of guardianship. This court order mandates that the guardian be given the authority to act on the ward’s behalf as defined in the order.
What Are the Duties of a Guardian under Ohio Guardianship Laws for the Elderly?
Appointment as a guardian for an elderly person carries significant responsibilities. The guardian has a fiduciary duty to act in the best interests of the ward and to fulfill their duties, which may include the following, with integrity and diligence:
- Making decisions that promote the best interests and well-being of the ward
- Filing regular reports with the court on the ward’s condition and living situation and the guardian’s actions on behalf of the ward
- Managing the ward’s finances responsibly, which includes keeping accurate records and acting solely in the ward’s best interests
- Advocating for the ward to ensure he or she receives appropriate care and services
If you believe Ohio guardianship laws could help protect your elderly loved one, contact the Lawrence Law Office at 614-363-1273. We have decades of experience in a wide range of family law matters, including adult guardianship. Our knowledgeable attorneys can advise you on the legal options and help you navigate the process.
