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The steps to guardianship include application to the court (forms are available from the county probate court), an expert evaluation by a medical professional, and an investigation by court personnel. The investigation includes a determination as to whether a less restrictive alternative than guardianship exists. Once a Letter of Guardianship is issued by the probate court, the ward cannot sign legal documents, but can vote, and live independently and make decisions as they are able.
Mandatory guardianship education and annual updates are available free of charge from the Ohio Supreme Court. This training could help you decide if guardianship is the right choice for you and yours. Annual reporting to the probate court is also required. A brief summary of guardianship by The Ohio Bar Association may be found at ohiobar.org. The Ohio Developmental Disabilities Council offers “Supported Decision Making and Guardianship” at ddc.ohio.gov.
There are several forms of guardianship. Guardianship of the person allows the guardian to make decisions and provide support in most areas of the ward's life (healthcare, housing, etc.). Guardianship of the estate provides for control of the ward's financial assets and decisions. Plenary guardianship combines both. An emergency guardianship is also available. A guardianship continues until the court determines it is no longer needed or appoints a new guardian. If the ward marries, guardianship terminates.
One less restrictive alternative to support an individual with a disability is a Power of Attorney (POA). Power of Attorney arises from a written document allowing you to act for or with your loved one in specific legal or financial matters, such as health care. A POA can be immediate (going into effect when signed) or springing (going into effect at such time as the signer, your loved one, becomes incapacitated). It can be revoked at any time. It does not eliminate a person's right to make decisions for him/herself – if there is a disagreement, the person retains the right to veto the attorney-in-fact's decisions.
To create a valid POA, one must be 18 years old and have the mental capacity to understand the nature and purpose of the POA document. A healthcare provider may be able to help you determine if there is the requisite mental capacity. A Power of Attorney must be signed in the presence of a notary public and two witnesses.
Supported decision-making is a more natural support which can be used to help make decisions with a ward, one who has granted power of attorney or anyone. This is what we do whenever we help a friend or family member make a decision – discussing the expected results of a decision, the pros and cons, etc. as a way to help someone arrive at their own decision. A bill (Ohio Senate Bill 35) is currently in the House which aims to standardize the supported decision-making process. It defines “supported decision-making” as “the process of supporting and accommodating an adult with a developmental disability who is making, communicating, or implementing the adult's own life decisions without impeding the adult's self-determination.” The bill would provide for the development of a model written plan by the Ohio Department of Developmental Disabilities and informational materials on the process.
Until such time as SB 35 is implemented, the Supported Decision-Making Network of Ohio offers resources, including flowcharts, on supported decision-making. These can be found on their website at sdmno.org.
I hope this helps. Please feel free to call or email ASO if you need more information.
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