In unfortunate situations, such as when parents die or are unable to act in
their children’s best interest, minor children
may need to
have a legal guardian
appointed for them. Ohio provides for two types
of guardianships in such cases.
Q: My brother recently died, and his wife died several years ago. What is going to happen to his minor children?
A: The probate court of the county where the children live will appoint a guardian to act in the
best interest of your brother’s minor children. The probate court, which has
exclusive jurisdiction over guardianships in Ohio, is a division of the Court
of Common Pleas.
Q: Before he died, my brother named me to be the guardian of
his children in his will. What should I do now?
will need to file an application with the
probate court of the children’s residential county asking to become their guardian. The court
will review your application, and, assuming the court approves it, you will be
appointed to be the children’s guardian at a hearing.
Q: Is there more than one type of guardianship?
The probate court
a guardian of the person, a guardian of the estate,
Q: What is a guardian of the person?
A: A guardian of the person protects
and makes decisions for the benefit of the minor children based
upon their best interests.
of the person is
for providing suitable care and education for the minor children, taking into consideration the
by the guardian of the estate.
Q: What is a guardian of the estate?
A: A guardian of the estate collects
and inventories the property left
to the minor
children. Any and all funds the guardian receives must be
placed in an Ohio bank. All funds must be invested in a lawful manner and should not be
subject to large
market fluctuations. Lastly, and most importantly, the guardian must not spend funds on
behalf of the minor children without
Q: Can the court appoint one person to be the
guardian of the person and another person to be the guardian of the estate?
Your brother could have chosen to appoint one person to become guardian over his
minor children and another person to be named guardian of the minor’s
inheritance. He could also have appointed only one person to serve as both the guardian
of the person and the guardian of the estate.
nomination of a guardian normally is set forth in a will, but it can also be
made through a separate document executed in the same manner as a will. The document
must be dated and signed by the individual nominating the guardian. It must
also be witnessed by two disinterested parties.
Q: How long will the guardianship last? Does a guardianship of the person last the
same length of time as a
guardianship of the estate?
A: Both types of guardianships
continue until the minor children reach the age of majority, which is 18 years of age in Ohio. However, if a child has a mental or physical
disability that requires the guardianship to continue in adulthood, then a new
guardianship application must be filed. A minor guardianship
cannot be changed into an adult guardianship without a separate court
Q: Does the
court have to appoint an individual to be a guardian just because that person
was named in a will?
A: No. The court will give priority to a guardian nominated in a document by an individual, but does not have to appoint that named person. The
court will look at the facts and circumstances
is necessary, and second,
whether the nominated person is suitable
to serve as a guardian. The court will make
the final decision about who will serve, but a minor
over the age of 14 also may recommend a guardian
and ask the court to
appoint that person.
This “Law You Can Use” column was provided by the Ohio State Bar
Association. It was prepared by Columbus attorney Jay E. Michael, an
OSBA-certified specialist in estate planning, trust and probate law. Articles
appearing in this column are intended to provide broad, general information
about the law. Before applying this information to a specific legal problem,
readers are urged to seek advice from an attorney.
Labels: children, guardianship, probate court