Brittany Spears has brought guardianships into the news. While there are slight variations from state to state there are similarities.
A guardian is appointed by the court to oversee the personal care, legal and/or financial affairs of a minor (child) or of an adult who is not able to manage his or her own affairs because of youth, advanced age or physical or mental disability.
A guardian is most often a person, but can be an association/corporation appointed by a probate court to be legally responsible for an individual and/or the individual’s property. The guardian is called a ward. In both minor and adult guardianships (or conservatorships) the object is to insure the best interests of the ward.
Under Ohio law, a guardianship is an involuntary proceeding initiated by family members or others who ask the probate court to protect someone who appears incompetent. Children, by being a child, are considered to be incompetent to handle their own affairs.
Sometimes guardianships are voluntary
Voluntary guardianship is sometimes used when referring to a legal conservatorship, but it is not a legal term. Conservatorships are when a physically infirm, but otherwise competent adult, has a guardian/conservator appointed to provide proper care for him/her and management of the individual’s (ward’s) affairs.
Control of a guardian over a ward is limited to the authority granted by law and the rules of the probate court. The guardian must obey the law and orders/judgments of the probate court. The court may confer broad, far-reaching powers on a guardian or limit or deny powers.
A guardian of the person is appointed to protect a ward, provide for the ward’s day-to-day care and arrange payment from the ward’s assets. Care includes food, shelter, clothing, health care and other necessities; responsibility for the education of a minor ward as required by state law; and making decisions about medical treatment or other professional services required.
A guardian of an adult ward also serves as guardian of the ward’s minor children, if there is no other guardian.
Duties of a guardian of the estate
A guardian of the estate is appointed to manage financial assets and property of the ward that are in the ward’s best interests. They must:
- Pay all debts owed
- Collect all money owed
- Settle and adjust any assets received from the executor or administrator of an estate on behalf of the ward (i.e. a minor child’s inheritance from a parent or other individual).
- Deposit all funds of the ward into an account with the name of the guardian as fiduciary
- Invest any of the ward’s excess funds (according to legal guidelines set out in law)
- File an official inventory and accounts of the ward’s estate with the court on a regular basis; and file or defend any lawsuits.
Before being appointed, an applicant for guardian of the estate must provide the court with a fiduciary bond equal to double the probable value of the personal estate and income he/she would handle and usually has to show that he/she has good credit.
Usually the same person is named as guardian of the person and the estate, but this is sometimes separated into two positions – one for the person and one for the estate.
Other types of guardians are:
- Limited guardian has specific powers outlined in the appointment papers from the probate court. A ward with a limited guardian retains all rights not covered by the Order of Limited Guardianship.
- Interim guardians are appointed when a former guardian is removed or resigns and when the court feels the welfare of the ward requires immediate action.
- Emergency guardian is appointed by the court without a formal hearing when an emergency exists and action is necessary to prevent injury the ward or their estate.