Odd behavior that an adult needs a guardianship could include when a loved one no longer eats a proper diet, takes medication correctly, gets lost, and/or lives in unhealthy conditions. It may mean it’s time to intervene and take immediate legal control over an adult’s life!

A legal guardianship over an adult could be necessary when a person becomes mentally and/or physically disabled and no longer can make rational decisions for themselves regarding their finances or healthcare.

It can be done through the filing of a guardianship with the Probate Court. A guardianship is filed when the individual did not provide a durable power of attorney, or the power of attorney is misused or ignored.

The Probate Court receives an application for the appointment of a guardian, filed by an attorney. A doctor’s examination is required of the alleged incompetent. The Court will usually appoint an investigator to review the matter and make a recommendation. The alleged incompetent may have an independent attorney. The matter is then set for hearing. Guardianship of an adult is similar to a relationship a parent has over a child. With a Guardianship there is ongoing Court involvement.

If an individual is making very poor decisions and putting themselves at risk, then Court intervention through a guardianship may be necessary to protect someone against themselves!

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Guardianships are administered and controlled by the Probate Court. Almost all records are public and open for inspection. When someone applies for a Guardianship over an adult that is physically and/or mentally incapacitated, the process requires a Physician’s Statement, Court Investigator’s Report and other filings. These could create embarrassment for the alleged incompetent and/or family.

With a Guardianship, the Probate process continues indefinitely until the incompetent is restored to competency or dies. Therefore, this process involves continuing Probate expense, possibly bond premiums, fiduciary and attorney fees. And, since this is a public record, all financial details surrounding the incompetent are open to public scrutiny.

This leads to the next question, which is how to avoid a Guardianship. The simple and most effective way is to provide a trusted family member or friend with a Durable Power of Attorney. This is different from a regular Power of Attorney because a regular Power of Attorney ceases to have legal effect upon the individual becoming incapacitated. Therefore it is critical to consider giving the correct type of Power of Attorney. To help minimize or avoid probate it is best to provide someone you trust with a Durable Power of Attorney.

Should a guardianship become necessary, an individual may also nominate a Guardian for themselves in their Power of Attorney.

In addition to having a Durable Power of Attorney in order to help avoid probate, it is essential to consider providing a Durable Power of Attorney for Health care decision making.

Finally, another way to avoid Probate or Guardianship is to have a Living Trust. However, the most common mistake people make with a Living Trust is the failure to fund their Trust. If a Trust is properly funded, it can minimize the risk associated with a Guardianship.

For more information regarding Guardianship or Contact Us.

One of the advantages of a Guardianship is that a Guardian is appointed by the Probate Court. Since the appointment of a Guardian is made by the Probate Court, the Guardian is controlled and supervised by the Court. This simply means that the Guardian cannot act without Court authority. This oversight protects the Guardian and most importantly, the ward on whose behalf the Guardian acts. This minimizes the risk of a breach of fiduciary duties and/or mismanagement or theft of the ward’s funds.

Some of the disadvantages of a Probate Court Guardianship include the expenses associated with this process. Additionally, because the Probate Court Guardianship files are public records, privacy is lost. As a result, many of the personal details of disability and/or financial affairs are open to public scrutiny and potential embarrassment.

Some of the legal options or alternatives to a Probate Court Guardianship include having a Durable Power of Attorney, a Durable Healthcare Power of Attorney, and/or possibly a Living Trust.

For more information about Guardianships or Contact us.

On occasion a family member may exhibit unusual behavior that causes concern for family members. Whenever a loved one is in danger, or behaving in a way that could cause real harm, and/or financial or physical damage to themselves, it is time to consider a guardianship.

A guardianship can be necessary where a person is physically and/or mentally incapacitated and that person never issued a Durable Power of Attorney.

Some situations to watch out for include a loved one who lives alone and refuses to come out, eat properly or bathe, take all their medication, or simply live in a home that is dirty and in complete disarray.

Other examples of unusual behavior that could trigger the necessity of a guardianship include when a loved one begins to get lost, can’t remember where he or she is or how to get home. Is the family member exhibiting signs of dementia, paranoia and/or delusion? Are they physically attacking another household member? Are there signs of financial exploitation or gross mismanagement of their assets?

Failure to intervene in these situations could lead to serious harm.

Whenever an individual is exhibiting unusual or bizarre behavior that is totally uncharacteristic it is time to step in and consider a guardianship. By taking prompt action, you minimize the risk associated with this loved one harming themselves physically and/or financially.

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At some point, every person will become mentally and/or physically disabled during their lifetime. Without the proper documents and legal plan your life may become subject to a Probate Guardianship. Who the Probate Court appoints as your Legal Guardian may be someone you never would have agreed to. Typically, a Guardian is a family member, but often when family members fight, the Court may decide to pick a third and disinterested party.

The ideal way to avoid a Probate Guardianship is to have the correct disability legal plan to cover medical and/or financial decision making. This is usually done with a Durable Power of Attorney.

Another way to avoid a Guardianship is to have a properly funded Revocable Living Trust. With a Trust, if you have chosen an appropriate Successor Trustee, then this person would take over financial decision making for you.

In the unforeseen circumstance that a Guardianship cannot be avoided even with a valid Durable Power of Attorney or Trust because of disputes among family members, you can state your preferences for who you wish to become your appointed Guardian by expressing your choice in your Durable Power of Attorney.

For more information about Guardianship or Contact Us.

One of the advantages of a Guardianship is that a Guardian is appointed by the Probate Court. Since the appointment of a Guardian is made by the Probate Court, the Guardian is controlled and supervised by the Court. This simply means that the Guardian cannot act without Court authority. This oversight protects the Guardian and most importantly, the ward on whose behalf the Guardian acts. This minimizes the risk of a breach of fiduciary duties and/or mismanagement or theft of the ward’s funds.

Some of the disadvantages of a Probate Court Guardianship include the expenses associated with this process. Additionally, because the Probate Court Guardianship files are public records, privacy is lost. As a result, many of the personal details of disability and/or financial affairs are open to public scrutiny and potential embarrassment.

Some of the legal options or alternatives to a Probate Court Guardianship include having a Durable Power of Attorney, a Durable Healthcare Power of Attorney, and/or possibly a Living Trust.

For more information about Guardianships or Contact Us.

Guardianships are administered and controlled by the Probate Court. Almost all records are public and open for inspection. When someone applies for a Guardianship over an adult that is physically and/or mentally incapacitated, the process requires a Physician’s Statement, Court Investigator’s Report and other filings. These could create embarrassment for the alleged incompetent and/or family.

With a Guardianship, the Probate process continues indefinitely until the incompetent is restored to competency or dies. Therefore, this process involves continuing Probate expense, possibly bond premiums, fiduciary and attorney fees. And, since this is a public record, all financial details surrounding the incompetent are open to public scrutiny.

This leads to the next question, which is how to avoid a Guardianship. The simple and most effective way is to provide a trusted family member or friend with a Durable Power of Attorney. This is different from a regular Power of Attorney because a regular Power of Attorney ceases to have legal effect upon the individual becoming incapacitated. Therefore it is critical to consider giving the correct type of Power of Attorney. To help minimize or avoid the probate it is best to provide someone you trust with a Durable Power of Attorney.

Should a guardianship become necessary, an individual may nominate a Guardian for themselves in their Power of Attorney.

In addition to having a Durable Power of Attorney in order to help avoid probate, it is essential to consider also providing a Durable Power of Attorney for Health care decision making.

Finally, another way to help avoid Probate or Guardianship is to have a Living Trust. However, the most common mistake people make with a Living Trust is the failure to fund their Trust. If a Trust is properly funded, it can minimize the risk associated with a Guardianship.

For more information about Guardianships or Contact Us.

Introduction

The passage of Ohio House Bill 130 on July 20, 2004 helped afford grandparents temporary legal rights to their grandchildren where they are living with the grandparents, and the parents, guardian, or custodian of the grandchildren cannot be located. The law regarding Caretaker Authorization Affidavits has been codified in Ohio Revised Code §3109.65 to §3109.73 and contains information and forms that the grandparents must fill out to obtain specific legal rights as to their grandchildren until such time as specified by statute. These legal rights include the grandparents’ ability to provide care, control and consent over the child in regard to schooling and medical treatment, decisions traditionally reserved for the parent, guardian, or custodian of the child. These provisions not only give grandparents legal rights over the grandchildren for a specified period of time, but also have the effect of providing protective services to children when their parents, guardian, or custodian cannot be found after a reasonable search has been conducted.

How the Caretaker Authorization Affidavit Works

Pursuant to Ohio Revised Code §3109.65, when a child is living with their grandparent and the grandparent cannot locate the child’s parent, guardian, or custodian after a reasonable search, the grandparent can fill out a caretaker authorization affidavit found in Ohio Revised Code §3109.67. There are circumstances, however, when a grandparent will not need to notify the child’s parent before obtaining temporary legal authority to care for the child under §3109.65(B). For example, a grandparent does not need to give notice to the father of the child if paternity has not yet been determined, if the parent is legally barred from obtaining notification of a child’s relocation as provided by statute or if the parental rights of the parent have been terminated by a juvenile court.

The effect of the caretaker authorization affidavit as found in Ohio Revised Code §3109.66 is to enable the grandparent to obtain the temporary legal authority to control the child’s upbringing with regard to the child’s education, activities, and all forms of medical treatment. This authority enables the grandparent to make parenting decisions that otherwise could not be made absent the consent of the child’s parent, guardian, or custodian. If a parent does come back into the child’s life, the decision of a grandparent regarding medical treatment or the child’s enrollment in a school will not stand against a parent’s contrary decision unless the parent’s decision will endanger the child in any way.

The caretaker authorization affidavit must be filled out by the grandparent and notarized to grant the grandparent legal authority to make parenting decisions for the child. If a grandparent provides false information on this affidavit, the grandparent could be subject to criminal sanctions pursuant to Ohio Revised Code §2921.13 and Chapter 2929.

Procedure for Filing the Caretaker Authorization Affidavit

Within five days after the caretaker authorization affidavit has been executed (filled out by the grandparent and notarized), the grandparent must file the affidavit in the juvenile court located either in the grandparent’s county or in another court with jurisdiction over the child based on a motion previously filed or proceeding conducted therein in regard to the child. If the grandparent executes an additional caretaker authorization affidavit over a child who is currently under a previously executed caretaker authorization affidavit, the filing of the affidavit must be carried out in the same manner as listed above.

Limits on Grandparent’s Authority under the Caretaker Authorization Affidavit

While the grandparent is given the legal authority to make parenting decisions regarding the child’s well-being and education, the caretaker authorization affidavit does not give the grandparent legal custody of the child. In addition, pursuant to Ohio Revised Code §3109.69, the affidavit in no way serves to terminate the parental rights of the parent, custodian, or guardian of the child and does not enable the grandparent to consent to the child’s adoption or marriage.

When the Caretaker Authorization Affidavit Terminates

Pursuant to Ohio Revised Code §3109.70, the caretaker authorization affidavit terminates at the commencement of certain events which include: automatically if it has been one year from when the affidavit has been notarized; the death of the child; a court order terminating the caretaker authorization affidavit; if the child no longer lives with the grandparent who signed the affidavit; if the child’s parent, guardian, or custodian does not agree with the grandparent’s decision regarding the child; or finally, the grandparent who filled out the affidavit has died. It is important for a grandparent who has executed a caretaker authorization affidavit to realize that their authority is limited in time and that the parents of the child can come back into the child’s life and thereby terminate the grandparent’s right to control the upbringing of the child for the specified time frame contained in the affidavit of one year.

Procedure after Termination of the Caretaker Authorization Affidavit

When the caretaker authorization affidavit terminates other than by way of the respective grandparent’s death, the grandparent must provide written notification to the following: entities the child was associated with because of the grandparent’s authority over the child such as healthcare providers and schools; the court where the affidavit was filed; and finally, any relevant individual or entity who has a relationship with the child and would continue to presume the grandparent’s authority to act on behalf of the child absent notification of the termination of the caretaker authorization affidavit.

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Published on eHow.com By Vivian Pearson, Contributing Writer

If you have temporary relinquished guardianship of your child due to illness, homelessness or financial problems and wish to regain physical custody of your child, you will need to submit a petition to the court that heard the initial guardianship case. After you file your petition with the court, you will need to attend a hearing in front of a family court judge, who will determine whether to return custody of your child.

Step 1

Prepare a petition to terminate temporary guardianship. Your petition should list the child’s full name and date of birth, your full name and relationship to the child and your reasons for wanting to terminate the temporary guardianship arrangement.

Step 2

Sign the document and have it notarized. Before submitting your petition to the court, execute it in the presence of a notary public.

Step 3

File the petition with the court. To have your petition reviewed by a judge, you will need to submit it to the clerk of the court, who will assign you a hearing date.

Step 4

Make your case in front of the family court judge. At your hearing, explain your reasons for wishing to terminate temporary child guardianship.

Step 5

Present evidence to back up your claims that you are willing and able to care for the minor. If you relinquished guardianship due to problems caring for the child, you may be asked to call in witnesses and provide written evidence to establish that you are a fit custodian.

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