Living Probate: What Is It?by Ted Gudorf (Gudorf Law Group, LLC)
Living probate is a court proceeding to determine whether an individual is incompetent of handling their personal care and financial resources and assigning guardianship over the person and/or estate if they are found incompetent. The intent of these proceedings is to protect a person’s welfare and financial affairs when they are unable to do so themselves.
In Ohio, probate court commonly appoints a guardian for minors who have no parents and adults who are mentally incompetent or rendered incapacitated by illness or injury.
If the court determines that a person is incompetent and appoints a guardian, the person for whom the guardian is appointed (referred to as the ‘ward’) is no longer able to make decisions about his or her personal welfare or finances. All of those decisions are made by the guardian. A guardian’s decisions must be approved by the court prior to acting on those decisions. In addition, the guardian of an estate is normally required to be bonded by an insurance company. Not everyone can be bonded, and getting bonded can be expensive.
How is Living Probate Initiated?
Living probate is usually initiated when the person interested in becoming the guardian files an application for guardianship with an Ohio probate court. The application must include an expert’s opinion that the individual over whom guardianship is requested is indeed incompetent and unable to manage their own affairs. Usually the expert is a medical doctor who has examined the individual.
Once the application is filed, the probate court requires all interested parties to be notified of a hearing to determine competency and appoint a guardian. The county sheriff is required to visit with the ward and inform them that someone has petitioned to be their guardian. Other family members will also be notified and invited to attend the hearing.
At the hearing, the probate court judge will review the case and interested parties will have an opportunity to address their concerns to the court. If everyone agrees that a guardian is required, the judge will appoint one.
Usually the petitioner who initiated the living probate proceedings is appointed guardian unless the court finds that the petitioner would not be an appropriate guardian. A bad credit history or criminal record is most often the reason a person is rejected as a guardian.
On occasion, the ward or another family member will object to the court’s appointed guardian. When this occurs, a contested guardianship hearing is scheduled and both sides will present their case. On occasion, the probate court will decide to appoint a local attorney instead of an applicant.
Living Probate is a Serious Concern
The appointment of guardianship by an Ohio probate court in a living probate case is very serious. Once a person is determined to be incompetent and a guardian is appointed, the ward is no longer in control of his or her life and finances. The guardian will have complete control and abuse of this position is not uncommon. For this reason, the courts take claims of incompetency and appointment of guardians very seriously. Appointment of the wrong person as guardian can be financially devastating and sometimes physically harmful to the ward.
To safeguard against abuse, a guardian is required to record all expenses paid from the ward’s estate and file those accountings once a year with the Ohio probate court that has jurisdiction over the case. The court then reviews the accountings and ensures that the ward’s estate is being handled properly.
Once guardianship is appointed, the Ohio probate court that made the appointment retains jurisdiction over the living probate case for the rest of the ward’s life. Upon the ward’s death, jurisdiction transfers to death probate. If the ward regains competency, such as a minor reaching age 18 or an adult who recovers their mental capacity after a stroke or other illness, the ward can petition the court to remove the guardianship. If the ward proves his or her case to the court, they immediately regain control over their life and their finances.
If you need an attorney to represent you or a loved one in a living probate case, the Dayton, Ohio probate attorneys at Gudorf Law Group can help. Call us for a free consultation at 1-877-483-6730.