The Legal Basics regarding Guardianships and Contested Guardianships in Ohio
The purpose of a guardianship hearing is to gather information in order to determine the best interests of the prospective ward. In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 553, 609 N.E.2d 1310. In re Guardianship of Martin, 2010-Ohio-3155, P20 (Ohio Ct. App., Mahoning County June 29, 2010).
Guardianship cases are non-adversarial proceedings to which many of the usual rules of procedure and evidence do not apply. In re Guardianship of Thomas, 148 Ohio App.3d 11, 2002 Ohio 1037, 771 N.E.2d 882; In re Guardianship of Stancin, 10th Dist. No. 02AP-637, 2003 Ohio 1106. However, any applicant for guardian must provide notice to ward’s next-of-kin in addition to the ward. R.C. 2111.04(A)(2)(b).
A probate court may appoint a guardian of the person of an incompetent, upon finding both incompetency, by clear and convincing evidence, and the necessity (best interest) of appointing a guardian. R.C. 2111.02(A); R.C. 2111.02(C)(3).
"Incompetent" is defined in R.C. 2111.01(D) as "any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person's self or property * * * ."
If there are two Independent Medical Examinations conducted, and the determination of incompetency is split, clear and convincing evidence likely hasn’t been proven by Applicant.
In making a determination as to who should serve as a guardian, the probate court's primary responsibility is to ensure that the person appointed will act in the best interests of the ward. In re Guardianship of Friend, (Dec. 16, 1993) 1993 Ohio App. LEXIS 6025, Cuyahoga App. No. 64018. Moreover, any evidence of a less restrictive alternative may be introduced and “shall be” considered. R.C. 2111.02(C)(5)-(6). This is because the Court may determine that an incompetent may be more appropriately cared-for by another fiduciary if there was a designation in a durable power-of-attorney, health care power-of-attorney, or other binding document.
If you are in need of a guardianship of the person or estate of a loved one, or if you are contesting the appointment of a guardian, call us immediately for a consultation.