What is a guardian?
A guardian is a person appointed by a probate court to be legally responsible
for another person and/or for another person’s property. While individuals
are usually appointed to serve as guardians, a corporation or association may
also serve in that capacity. A person for whom a guardian has been appointed
is called a “ward.”
are guardians appointed?
A guardian is appointed by the court to oversee the legal and financial
affairs (and/or the personal care) of a minor, or of an adult who is not able
to manage his or her own affairs because of advanced age or some other
physical or mental disability. A guardianship may be voluntary, which means
the guardian is appointed at the request of the ward, or it may be
involuntary if family members or others ask the court to act to protect
someone who appears to be incompetent. Once appointed, a guardian is
answerable to the court for providing proper care and management of the
ward’s affairs in the ward’s best interest.
are the general powers and duties of a guardian?
The control that a guardian has over a ward is limited to the authority
granted by Ohio statutes, relevant decisions of Ohio courts, and orders and
rules of the probate court. All guardians must obey the orders and judgments
of the probate court by which they were appointed. The probate court may
confer broad and far-reaching powers on a guardian, or it may limit or deny
any power granted under Ohio statutes or Ohio case law. Ohio law provides for
different types of guardianships (listed below).
are the types of guardianships?
A “guardian of the person” is appointed to protect and have physical
custody of a ward and to provide for the ward’s day-to-day maintenance, paid
from the ward’s assets. Maintenance means providing food, shelter, clothing,
health care and other necessities. It includes responsibility for the
education of a minor ward as required by law, and making decisions about
medical treatment and other professional services the ward may require. A
guardian of the person also serves as guardian of an incompetent adult’s
minor children, if no other guardian has been appointed for them. Only a
“natural person” (not a bank or a company) can be appointed as a guardian of
A “guardian of the estate” is appointed to manage the property and
financial assets of the ward for the ward’s best interests. Specifically, the
guardian of the estate must:
— pay all debts owed by the ward;
— collect all money owed to the ward;
— settle and adjust any assets received from the executor or administrator of
— deposit all funds of the ward into an account in the name of the guardian
— invest any of the ward’s funds not needed for current obligations according
to legal guidelines;
— file an official inventory and accounts of the ward’s estate with the court
on a regular basis;
— file or defend lawsuits on behalf of the ward if necessary to protect his
or her interests.
(Note: Unless the court order appointing a guardian specifies otherwise, the
same person is normally named as both guardian of the person and the estate.)
A “limited guardian” is a guardian whose powers are specifically
limited by the probate court. A ward for whom a limited guardian has been
appointed retains all rights in all areas not covered by the Order of Limited
An “interim guardian” is a guardian appointed after a former guardian
has been removed or resigns when the welfare of the ward requires immediate
An “emergency guardian” is a guardian appointed by the probate court
without a formal hearing when an emergency exists and a guardian is necessary
to prevent injury to the person or estate of the ward.
· A “conservator” is a person appointed by
the probate court at the request of a mentally competent adult who is
physically unable to manage certain aspects of his or her life. The person
requesting the appointment of a conservator specifies the powers requested on
the Petition for Conservatorship.
What is included in
a guardian’s inventory?
A guardian of the estate of a ward must file an inventory of the ward’s
assets within three months after appointment. The inventory must list all
real and personal property of the ward and the annual value of the rental of
any real estate.
The probate court may require that the inventory be supported by evidence and
that the guardian produce prior income tax returns, bank statements, Social
Security records of the ward or any other relevant documents. In addition,
the probate court may appoint an examiner or assign court employees to
conduct an investigation to verify the accuracy of the inventory. At the time
he or she is appointed, a guardian may not open a ward’s safety deposit box
until it has been audited by the county auditor of the appropriate county
What is a
Every guardian, except a guardian of the person only, must file an account in
the probate court at least once every two years, or more often if local court
rules require it. A final account must be filed within 30 days after the
termination of the guardianship. This account must include an itemized
statement of all receipts, disbursements and distributions made from the
ward’s estate. All transactions must be verified by vouchers or proof, unless
a corporate fiduciary is involved. The accounting must also contain an
itemized statement of all funds, assets and investments in the guardian’s
hands at the end of the accounting period, and any changes in investments
since the last account was filed. Actual securities and passbooks or bank
statements must be exhibited to the probate court for examination, and the
account must be made on the signature and oath of the guardian.
A “guardian of the person only” may also be ordered to provide an accounting
from time to time for good cause shown on the court’s own motion or on motion
by any interested party.
What is a
A formal guardian’s report to the probate court is now required of all
guardians of incompetent persons. This report must be filed two years after
the date of a guardian’s appointment, and every two years thereafter. It is
generally filed with the guardian’s account. The probate court, on motion or
by rule, has the authority to require such a report at any time.
The guardian’s report must be made on a court-prescribed form, and must
contain a great deal of specific information, including a list of the number
and nature of contacts with the ward over the period covered by the report;
any major changes in the ward’s physical or mental condition observed by the
guardian; the guardian’s opinion as to the necessity for continuing the
guardianship and the adequacy of the care that the ward is receiving; and the
date that the ward last saw a physician. The purpose of the report is to
assist the probate court in determining if the guardianship should be
continued. The court may appoint an investigator to verify the report.
How can I be an
The key to being an effective guardian is to have as much knowledge about and
direct contact with the ward as possible. The guardian should make every
attempt to have a positive relationship with the ward, visit and communicate
with the ward often and generally demonstrate personal concern for the ward
and his or her well being.
It is also important to establish and maintain a positive relationship with
all of the ward’s family members. A guardian will find that he or she can
avoid problems and complications by keeping all family members informed of
what is going on with the guardianship, and actively inviting them to
participate to the extent practical. Problems rarely arise in those
guardianships where the guardian makes both the ward and his or her family
members feel that they are important members of a team.
If I am named as a
guardian, what help should I seek?
No sensible person would engage “just anyone” to fill a loved one’s tooth or
remove an appendix. Likewise, a guardian should be careful in taking advice
regarding his or her duties to the ward. A lawyer can help you understand and
fulfill your legal duties as a guardian, and avoid mistakes or oversights
that could result in serious harm to your ward or his or her family. Ohio’s
laws regarding the appointment and conduct of guardians are not simple.
Understanding and complying with them calls for professional expertise.
Where can I get
If you or someone close to you needs information on how to set up a legal
guardianship, contact the probate court in your county and ask friends and
family members for the name of an attorney who is knowledgeable about probate
matters. If necessary, contact the lawyer referral service operated by your
local bar association or one nearby. Check the Yellow Pages under
“associations” or “attorney referral services.”