Guardian Rule Proposal

December 12th, 2015

Proposed Rule Changes to the Rules of Superintendence Regarding Guardianships in Ohio

The Ohio Supreme Court is asking for comments regarding the Proposed Amendments to the Rules of Superintendence for the Courts of Ohio Rule 66.01 through 66.09. This proposal relates to all guardianships in Ohio. I believe the rule proposal should be rejected entirely. Here is my comment:

To whom it may concern:

I am writing in my capacity as co-chair of the Dayton Bar Association’s Estate Planning, Trust and Probate Committee as well as an individual practitioner in response to the request for comments regarding Rule 66. Although I believe amendments should be made, the proposed rules in its present form should be rejected entirely. Below are some general observations regarding the proposed changes.

First, under Rule 66.02, I do not believe that “family member guardians” should be treated differently from “corporate guardians.” Simply because a non-family individual stands to profit, does not mean that the ward’s best interests will be overlooked. More often then I care to admit, the family members are the worst offenders in treatment of wards.

Next, Rule 66.04(C) and (D) take aim at residential facilities and employees, by prohibiting their application for guardian. Unfortunately, sometimes these facilities are the only individuals willing to take on the responsibility to protect the ward. The ward’s family always has the opportunity to object in the application process, which is the only check and balance needed. Moreover, there are plenty of mechanisms for removing a guardian should the guardian fail to act as a fiduciary. Less and less individuals, including myself, are willing to assume the responsibilities of guardian because of the liability and lack of compensation. Why would you make that willing pool smaller?

Rule 66.06’s requirement that a guardian must complete a six-hour training course along with a yearly three hour course is simply too much, especially when a guardian’s compensation is already trivial.

The language in Rule 66.08 seems to codify what is already implicitly required of guardians. For example, reporting abuse, neglect, or exploitation is common sense. The “recommendations” by guardian to the court with “relevant” recommendations regarding a ward’s best interest is a solicitation for ridiculous and irrelevant requests or complaints to already over-burdened courts. Requiring court-approval of certain legal proceedings is already mandatory, and no doubt would be reviewed by any court overseeing guardianships anyway. The “annual plan” under subsection (H) is vague, and simply requires more filings by guardians.

Under Rule 66.09(A), an express rule that guardians “shall not engage in sexual relations with a ward…” almost suggest that sexual relations with a ward are encouraged. I understand this Rule is likely for spouses; however, one only need to consider that minors are also wards to appreciate the folly of this proposal. Plenty of other laws regulate sexual activity—this one is a bad idea. The remainder of Rule 66.09 (B) through (L) is wholly unnecessary, as the guardian should be doing those things are part of the guardian’s normal fiduciary duties.

In sum, this proposal will damage current and future wards, because individuals perhaps best capable of serving as a guardian (i.e. attorneys and corporations) will be discouraged from serving as guardian. The rules overburden non-family members with additional education and filings, while making that duty more expensive and subjecting non-family guardians with more liability. I sincerely hope any and all changes will be rejected.