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GUARDIANSHIP

GUARDIANSHIP. Trends Practice Aspirations Judge Dixie Park Stark County Probate Court. 36 million Americans are 65 years old or older. 12 % total population. OHIO. ◦ 2006

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GUARDIANSHIP

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  1. GUARDIANSHIP Trends Practice Aspirations Judge Dixie Park Stark County Probate Court

  2. 36 million Americans are 65 years old or older 12% total population

  3. OHIO ◦2006 36 Ohioans turned 65 every day ◦2011 142 Ohioans will turn 65 every day Federal Interagency Forum on Age-Related Statistics, 2004 National Center for Health Care Statistics, http://www.agingstats.gov/

  4. OHIO 15,000 people turn 60 years old every month 13.7% of Ohioans are 65+ Ohio Dept. of Aging World Report on Violence and Health Chapter 5

  5. 2030 71 million Americans will be 65+ There will be more persons above the age of 65 than under 18 Federal Interagency Forum on Age-Related Statistics, 2004 National Center for Health Care Statistics, http://www.agingstats.gov/

  6. According to the National Center for Healthcare Statistics (2004), older adults represent: 50% of hospital days used by adults 60% of all ambulatory adult primary care visits to health care providers 70% of all home care visits 85% of residents in nursing homes

  7. OHIO ● JANUARY 2009 : 38,857 GUARDIANSHIP CASES PENDING 6,668 NEW CASES FILED 5,513 CASES CLOSED ●DECEMBER 2009: 40,012 GUARDIANSHIP CASES PENDING Ohio Courts Statistical Report 2009, 2012

  8. OHIO JANUARY 2012: 42,615 GUARDIANSHIP CASES PENDING DECEMBER 2012: 6,993 FILED 5,135 CLOSED DECEMBER 2012: 44,473 GUARDIANSHIP CASES PENDING Ohio Courts Statistical Report 2012

  9. O.R.C. 2111What is a Guardianship? A guardianship is an involuntary trust relationship in which one party, called a guardian, acts on behalf of another individual who is incompetent and is called a ward

  10. What is a Guardian? Any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate or both of an incompetent or a minor. O.R.C. 2111.01(A) A corporation can only be guardian of the estate and not of the person except Advocacy and Protective Services, Inc., which provides guardianship services for individuals with developmental disabilities O.R.C. 2111.10

  11. Who needs a Guardian? A guardian may be appointed for either an incompetent or a minor, which are defined by statute

  12. What does it mean to be incompetent? Any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he /she is incapable of taking care of him/herself or his/her property or fails to provide for his/her family or other person for whom he/she is charged by law to provide, or any person confined to a correctional institution ● physical incapacity alone is not a basis for guardianship ● a physically incapacitated adult who is not incompetent can apply for conservatorship O.R.C. 2111.021

  13. Who chooses the Guardian? The probate court appoints the guardian. In addition, an adult, while competent, may nominate a guardian and successor guardian to serve in the event of incapacity. R.C. 2111.121

  14. What are the types of guardianships?

  15. Guardian of the Person Guardian of the Person has custody of, controls, and protects the person of the ward O.R.C. 2111.13 a. Medical Decisions- treatment, procedures b. Residential Placement- own home or facility

  16. Guardian of the Estate Guardian of the Estate controls and protects the assets or property of the ward O.R.C. 2111.14 a. sale of real estate b. initiation of lawsuits c. receipt for and disburse assets The guardian of an incompetent shall be the guardian of the minor children of the ward unless the court appoints some other person as their guardian O.R.C. 2111.02(A)

  17. Limited Guardian Limited Guardian can be appointed for either a limited purpose and for a specified period of time O.R.C. 2111.02(B)(1) The ward retains all rights not specifically affected by the order appointing the limited guardian

  18. Interim Guardian Interim Guardian is appointed by the court after an appointed guardian is temporarily or permanently removed or resigns O.R.C.2111.02(B)(2)

  19. Emergency Guardian Emergency Guardian is appointed by an ex parte order if an emergency exists and it is reasonably certain that immediate action is required to prevent significant injury to the person or estate of an incompetent or minor O.R.C. 2111.02 (B)(3)

  20. Issues to consider prior to filing the application for guardianship

  21. Issues to Consider ● Is the prospective ward incompetent? ● What is the purpose of the guardianship? ● What specifically are the prospective ward’s assets? • Inquire about powers of attorney ● O.R.C. 2111.02(C)(6) requires the least restrictive alternative ● Determine if your client is a suitable and qualified person to serve as guardian

  22. Appointment Procedure ● Application for guardianship forms must be filed in the probate court of the county of the ward’s residence by an interested party, or on the probate court’s own motion ● The probate court will schedule a hearing allowing adequate time for service

  23. Notice Requirements 7 days notice required •upon the prospective ward by personal service by the probate court investigator O.R.C. 2111.04(A)(2)(a)(i) •upon the next of kin of the prospective ward who are known to reside in the state O.R.C. 2111.04(A)(2)(b)

  24. The Hearing O.R.C. 2111.02(C) a. The proposed guardian must appear at the hearing O.R.C. 2111.02(C) b. A record of the hearing is not automatic, and must be requested by the moving party O.R.C. 2111.02(C)(4) c. Issues before the probate court i. Incompetence – The burden is upon the applicant by clear and convincing evidence O.R.C. 2111.02(C)(3) ii. Suitability – The probate court must determine if the applicant is a suitable and qualified person to serve and that he/she will properly fulfill his/her duties O.R.C. 2111.02(C)(1) d. Factors that the probate court will consider in determining the suitability of the applicant

  25. Factors that the probate court will consider in determining the suitability of the applicant •relationship of the applicant to the prospective ward e.g. duration and nature •whether the applicant is a current attorney in fact for the prospective ward •whether the applicant owes the ward any money •whether the next of kin consented to the appointment of the applicant  •whether there is any potential conflict between the applicant and the ward •whether the applicant is a resident of the state of Ohio •whether the applicant is the executor of the administrator of an estate in which the prospective ward is interested *O.R.C. 2111.09 prohibits such an appointment

  26. Contested Hearing the probate court will treat the initial hearing as a pretrial and set a date for the full evidentiary hearing. the probate court can make any necessary interim orders at the pretrial to protect the person or estate of the prospective ward counsel for the applicant should be prepared to substantiate any need for interim orders

  27. Appointment of Physicians or other Experts O.R.C. 2111.031 a. the probate court may appoint independent experts to assist the court in determining the need for a guardianship b. the prospective ward likewise has the statutory right to request the appointment of an independent expert to contest the applicant's expert O.R.C. 2111.02(C)(7)

  28. Alleged Incompetent’s Rights O.R.C.2111.02(C)(7) Right to representation by independent counsel Right to have a friend/ choice of family member present at the hearing Right to have evidence of an independent expert evaluation introduced If indigent, upon request: the right to appointed counsel and independent expert evaluation at the court’s expense; right to counsel and transcript upon appeal of the decision at the court’s expense

  29. Court Costs If a guardian is appointed, the costs are taxed to the ward’s estate, if any If a guardian is not appointed, the costs are taxed to the applicant The probate court can require the applicant to deposit security for such court costs

  30. FORMS

  31. FORMS REQUIRED TO INITIATE THE PROCESS • SPF 17.0 - Application for Appointment of Guardian for Alleged Incompetent • SPF 15.0 – Next of Kin of Proposed Ward • SPF 15.01- Judgment Entry Setting Hearing on Application for Appointment of Guardian • SPF 17.1 – Statement of Expert Evaluation • SPF 17.3 – Notice to Prospective Ward of Application and Hearing • SPF 17.4 – Notice of Hearing for Appointment of Guardian of Alleged Incompetent Person, or • SPF 15.1 Waiver of Notice and Consent

  32. FORMS REQUIRED AT THE GUARDIANSHIP HEARING • SPF 15.2 – Fiduciary’s Acceptance • SPF 15.3 – Guardian’s Bond O.R.C. 2109.04(A)(3)- See also O.R.C. 2109.12 and 2109.13-do not file bond prior to the appointment in the event that a different applicant is appointed. The Court cannot return the original bond and you will be required to pay a bond premium • SPF 15.9 - Oath of Guardian • SPF 17.5 – Judgment Entry Appointment of Guardian for Incompetent Person • SPF 15.4 – Letters of Guardianship

  33. POST-APPOINTMENT FORMS • SPF 15.5 – Guardian’s Inventory must be filed within 90 days of appointment and prior to release or expenditure of funds • SPF 15.6 – Application to Release Funds to Guardian • SPF 15.7 – Application for Authority to Expend Funds • SPF 15.8 – Guardian’s Account-SPF 17.1 Statement of Expert Evaluation- O.R.C. 2111.49, Filed Annually- Loc. Rule 34.1 • SPF 17.7 Guardian’s Report- O.R.C. 2111.49, Filed Annually per Local Rule 34.1

  34. COMMON ERRORS COMPLETING FORMS

  35. SPF 17.0 APPLN. FOR APPT. OF GUARDIAN FOR ALLEGED INCOMPETENT COMMON ERRORS • Failure to properly identify the ward’s legal residence • Failure to properly identify the statutory basis for the ward’s incompetence • Applying for greater powers of guardianship than necessary • General failure to read or review the form prior to signing it • Failure to sign the application- applicant or attorney

  36. SPF 15.0 NEXT OF KIN OF PROPOSED WARD COMMON ERRORS • Failure to list the applicant as a next of kin when in fact a next of kin • Listing persons who are not next of kin, e.g. prospective ward’s parents are listed when the prospective ward is married and has children

  37. SPF 17.3 Notice to Prospective Ward of Applicn. and Hearing COMMON ERRORS • Failure to specify the proposed ward’s current location. The court investigator uses this form to effectuate notice pursuant to Chapter 2111 • If the prospective ward is a resident of a nursing home but is being treated in the hospital, list the hospital

  38. FORM 15.3 GUARDIAN’S BOND COMMON ERRORS • Failure to list a bond amount • Failure to list a proper bond amount. Like all fiduciaries, a guardian’s bond is double the value of all personalty, plus yearly rentals • Failure of guardian (principal) to sign the bond

  39. SPF 17.5 Judgment Entry-Appt. Gdn. for Incompetent Person COMMON ERRORS • Failure to cross out term “limited” when inapplicable • Failure to cross out terms “person” or “estate” when inapplicable

  40. SPF 15.4 LETTERS OF GDNSHP. COMMON ERRORS • Marking the incorrect box for the type of guardianship granted • Marking the incorrect box or no box for the duration of the guardianship- • i. Usually indefinite period for guardianship of incompetent • ii. Definite period for guardianship of a minor-to the date of the age of majority

  41. SPF 15.6 Appln. Release Funds COMMON ERRORS •Failure to list the names of the institution, last 4 digits of the account number and the balance of the account to be released •Failure to complete Confidential Disclosure of Personal Identifiers form (SCPC Form 45(D)) • Using the form when seeking authority to expend funds ●Submitting an outdated form

  42. SPF 15.7 Application for Authority to Expend Funds COMMON ERRORS • Failure to clearly specify the type of expenditure, i,e, what constitutes “living expenses” ? • Failure to specify the amount of the expenditure or to set parameters • Using the form when seeking authority to release funds which are being held in the ward’s name

  43. Sub. House Bill 27 (Effective 3/22/13) – Adult Guardianship and Protective Proceedings Jurisdiction Act

  44. Subcommittee on Adult Guardianship Minimum Standards and Certification Workgroup Preferred Monitoring Protocols Workgroup Data Improvement Workgroup

  45. Minimum Standards & Certification Workgroup Proposed Minimum Standards for Guardians address 20 areas ● Applicable Law ● Guardian’s Relationship to the Probate Court ● Guardian’s Professional Relationship to the Ward ● Guardian’s Relationship with Family and Friends of the Ward ● Guardian’s Relationship with other Professionals/Providers

  46. Proposed Minimum Standards cont’d ● Guardian’s Decision making ● Least Restrictive Alternative ● Self-Determination of the Ward ● Confidentiality ● Duties of the Guardian of the Person ● Conflict of Interest: Ancillary and Support Services ● Duties of the Guardian of the Estate ● Conflict of Interest in Estate, Financial and Business Services

  47. Proposed Minimum Standards cont’d ● Termination and Limitation of the Guardianship ● Guardianship Fees ● Management of Multiple Guardianship cases ● Quality Assurance ● Training ● Eligible Guardians Record ● Probate Judge as Superior Guardian

  48. Preferred Monitoring Protocols Workgroup Explore possible funding opportunities Implement greater standardization of low/no cost monitoring Share best practices Develop checklist for guardians Develop bench card

  49. Data Improvement Workgroup Minimum Data Collection Number of filings Date of birth Living arrangements Relationship of the guardian to ward Type of mental disability of ward Type of guardianship Standard form Measuring Unmet Need- each county assess future need for guardians

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