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?

A:        You 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?

A:        Yes. The probate court can appoint a guardian of the person, a guardian of the estate, or both.

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. The guardian of the person is also responsible for providing suitable care and education for the minor children, taking into consideration the assets held 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 prior court approval.

Q:       Can the court appoint one person to be the guardian of the person and another person to be the guardian of the estate?

A:        Yes. 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.

                        The 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 order.

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 and determine first whether a guardianship 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.

Q:                               Q:       My 21-year-old daughter, who lives alone, suffers from the effects of alcohol abuse. She refuses to get treatment, and I fear for her safety. Is there any way to get her into treatment despite her refusal?

A:        Yes. On March 22, 2012, Ohio Senate Bill 117 became effective. This law includes a provision allowing a probate court to order involuntary treatment for a person suffering from alcohol or other drug abuse, as long as certain procedures are followed. A spouse, relative or guardian may initiate this proceeding.

Q:       How would I go about asking the court to order treatment for my daughter?

A:        First, you would file a petition with the probate court and pay any fee that may be charged for filing an affidavit saying you are seeking your daughter’s hospitalization. Your petition must include certain information that must be verified by the court, including a doctor’s statement about your daughter’s need for treatment (unless she has refused to see a doctor about her condition). The law gives the probate court “exclusive jurisdiction” to hear and determine such petitions. This means that only the probate court can consider your petition, order treatment for your daughter, and take other actions allowed by law regarding involuntary treatment for someone suffering from alcohol or other drug abuse.

Q:       What happens once the probate court receives my petition?

A:        After having received your petition and filing fee (if any), the court must examine you under oath about what is included in your petition. After reviewing the allegations in your petition, the court must decide if there is “probable cause” to believe your daughter may reasonably benefit from treatment. If the court finds probable cause, it will conduct a hearing to determine if there is “clear and convincing evidence” that your daughter may reasonably benefit from treatment. The court will also consider the recommendations of a qualified health professional who has examined your daughter and can certify that she meets the criteria for involuntary treatment.

Q:       If the health professional certifies to the court that my daughter should receive involuntary treatment, what happens next?

A:        If the probate court finds “by clear and convincing evidence” that your daughter presents an “imminent threat of danger” to herself, her family or others, and that she would reasonably benefit from treatment, the court may order your daughter to be hospitalized for this treatment.

Q:       Does my daughter have any rights in this matter?

A:        Yes. Your daughter has a right to legal counsel and to have an independent expert evaluation of her physical and mental condition. Also, if your daughter is hospitalized during the proceeding because the court finds that she presents an “imminent threat of danger” to herself, her family, or others, then the court must inform your daughter that she may immediately make a reasonable number of phone calls or use other reasonable means to contact an attorney (or someone who can help her secure legal counsel), a licensed physician or a qualified health professional, or to get medical or psychological help. Your daughter would receive help in making calls if she needs help and asks for it.

Q:       What if my daughter refuses to be examined before the court hearing, or refuses to go to the hospital even after the court has ordered it?

A:        The law authorizes the probate court to issue a summons if your daughter fails to attend an examination scheduled before the hearing. The summons must be directed to your daughter and must command her to appear at a particular time and place. The summons also will say that, if your daughter fails to appear at the examination or the hospital, the court may order the sheriff or any other peace officer to transport her to a hospital from a list the law provides.

Q:       Who decides which hospital will take my daughter?

A:        The law requires each Ohio county’s board of alcohol, drug addiction and mental health services to submit lists of certain specified hospitals to the clerk of each county’s probate court at least once a year.

Q:       Will information about my daughter’s involuntary treatment be kept confidential?
A:        Yes. Ohio laws regarding patient confidentiality, as well civil rights and liberties, apply to a person who is ordered to undergo treatment for alcohol and other drug abuse.  

Q:       Who is responsible for my daughter’s treatment costs?
A:        When you file a petition with the probate court, you must also file a statement guaranteeing payment of the costs of any required examinations of your daughter and the costs of any treatment ordered by the court.  

This “Law You Can Use” column was prepared by the Ohio State Bar Association. 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.