Guardianship and Conservatorship | Alexander Estate Law

How do you Know When It's Time to Discuss Guardianship

Few transitions in life are as emotionally demanding as the role reversal that occurs between adult children and their aging parents. As the adult child gradually takes on increased responsibility, it may be challenging to recognize when a parent is no longer able to properly care for themself or their property and legal intervention should be discussed.

Will you be prepared when a friendly neighbor tells you that your mother’s electricity was shut off temporarily because she forgot to pay the bill or when a review of your father’s bank account reveals that he fell victim to a telephone scam. For many, the seriousness of the situation only becomes apparent after the fact.

If these scenarios sound familiar, it may be time to consider whether a Guardianship is appropriate. Christopher M. Alexander has represented individuals and families throughout southwest Ohio for 25 years. If you have questions about Guardianship of a loved one and would like to talk with an experienced and knowledgeable estate planning attorney, contact Christopher M. Alexander, Esq. at (513) 228–1100 or chris@alexander-legal.com.

What is Guardianship

Guardianship is the appointment of a person (the “Guardian”) by the probate court to make financial, healthcare, and/or personal decisions for an incompetent person (the “Ward”). To appoint a Guardian, the Court is required to find that the Ward is so mentally impaired, as a result of a mental or physical illness or disability, that he or she is incapable of taking proper care of themself or their property.

Guardianship of the Person & Guardianship of the Estate

A Guardian of the Person has physical custody of the Ward and makes day-to-day decisions regarding healthcare and personal matters. A Guardian may be required to ensure their Ward takes necessary medication, receives proper nutrition and has a safe and clean living environment.

A Guardian of the Estate has control over the Ward’s assets and makes financial decisions in the Ward’s best interest. A Guardian is a fiduciary and is legally required to manage all income, investments and property for the benefit of the Ward.

Does the Ward Have Rights

The Constitution of the United States, including the Bill of Rights, and the Ohio Constitution guarantee all of us fundamental rights and personal freedoms. When the Court grants an application for appointment of a Guardian, the Ward loses basic rights. The Ward can no longer independently determine where to live, refuse medical treatment, decide whether to vote or enter into a contract.

Due to the loss of autonomy for the Ward, Guardianship will only be granted where no less restrictive alternative is available. A formal hearing will be held on all applications for appointment of a Guardian. At the hearing, the Ward has important rights:

The right to be represented by independent counsel of the alleged incompetent's choice;
The right to have a friend or family member of the alleged incompetent's choice present;
The right to have evidence of an independent expert evaluation introduced;
If the alleged incompetent is indigent, upon the alleged incompetent's request:

A. The right to have counsel and an independent expert evaluator appointed at court expense;

B. If the guardianship, limited guardianship, or standby guardianship decision is appealed, the right to have counsel appointed and necessary transcripts for appeal prepared at court expense.

What is Conservatorship

Although the concepts of Guardianship and Conservatorship seem comparable at first glance, the theory underlying each is very different. Whereas guardianship is involuntary, Conservatorship is completely voluntary.

A competent adult who is physically infirm may petition the probate court to appoint a Conservator over some or all of their real or personal property. Conservatorships are created for a variety of reasons based on the Ward’s circumstances. For example, appointing a conservator is a good way to avoid having assets depleted by financial abuse and fraud. Conservatorships are also useful to protect an estate from waste where a disabled person is unable to manage his or her own affairs. A Conservatorship can also be helpful in preventing family conflict and disagreement over a loved one’s estate if a parent or grandparent is constantly caught between family members.