New Guardianship Rules: What About Those Plans?

The Supreme Court adopted extensive amendments to the Guardianship Rules, which were effective June 1, 2015. Among these amendments is the requirement for all guardians to file an “Annual Plan” with the Probate Court. This new requirement has raised a number of questions:

  • What should be in these Annual Plans?
  • How is the Annual Plan different from the Guardian’s Report?
  • How is the Annual Plan different from service plans, such as Individual Service Plans developed by local boards of developmental disabilities?
  • What should be included in an Annual Plan?

What are the Rules?

Rule 66.08(G) states:

A guardian of a person shall file annually with the Probate Division of the Court of Common Pleas a Guardianship Plan as an addendum to the Guardian’s Report. A guardian of an estate may be required to file an annual guardianship plan with the Probate Division of the Court of Common Pleas. The Guardianship Plan shall state the guardian’s goals for meeting the ward’s personal and financial needs.

Several points are worth noting:

  • All guardians of person are required to file an annual plan;
  • Individual courts have discretion to require annual plans from guardians of estate;
  • The rule specifies that the guardian’s plans be filed annually and attached as an addendum to the guardian’s report (a different form – see below);
  • Filing a guardian’s report does not meet the requirement for a guardian’s plan.

How Does the Guardian’s Plan Differ from the Guardian’s Report?

The Guardian’s Plan

The Guardian’s Plan is only required by

Keep reading ...

Guardians: Take Note!

By Attorney Franklin J. Hickman

The Supreme Court issued extensive new rules affecting all guardians in Ohio, effective June 1, 2015. Major highlights are summarized below. The full text of the rule can be found here.  

Pre-Appointment Training (66.06)

Every guardian, both existing and newly appointed, must attend a six-hour course on the fundamentals of guardianship. The content of the training is set by rule. The Supreme Court is preparing a curriculum and resource materials, which will be presented at regional trainings beginning in late June 2015. These sessions will have separate tracks for “lay” guardians and guardians who have had professional training, such as lawyers or social workers.

Each Probate Court will develop and present its own on-going training program on fundamentals.

Guardians appointed on or prior to June 1, 2015, will have one year to complete the training. Guardians appointed after June 1, 2015, will have to complete the training within six months of appointment.

Continuing Education (66.07)

All guardians will have to complete a three-hour continuing education program, which is approved by the Supreme Court. Guardians are required to provide documentation of compliance on or before January 1 annually.

Courts will not make further appointments for guardians who fail to comply with the continuing education. If a guardian fails to comply for three years or more, the guardian will have to take a six-hour fundamentals course. Continued non-compliance could result in the guardian being removed.

Criminal Background Checks (66.05(A)(1))

Courts must ensure that all guardians

Keep reading ...

In the Past 40 Years…

frankBy Attorney Franklin J. Hickman

Forty years ago I was sworn in to become a newly minted attorney in Ohio, with the sole ambition of doing battle for the rights of people with mental disabilities. There have since been many fights on many fronts – the only constant has been continual change and a realization that you can never predict where your efforts will lead.   Forty years ago it was inconceivable that institutional care would be largely replaced by a system which gave individuals funding with the freedom to pick services and providers while living in the community. Here are some of the highlights:

Involuntary Commitment
A day of work in 1973 for the Legal Aid Society in Cleveland began by going to my office in the Cleveland Psychiatric Institute, connected to Metro General Hospital. My law school diploma and bar certificate were on the wall to make sure that nobody confused me with the doctors, other staff or patients. Legal Aid’s Mental Health Unit had lawyers in each of the four psychiatric hospitals; we represented indigent patients in involuntary commitment hearings since at that time, there was no right to appointed counsel for patients who were indigent. Hearings in those days came in two stages: a preliminary hearing and final hearing. Once there was a final hearing, the patient was often automatically declared incompetent and not entitled to any further judicial review. The average length of stay for long-term patients was over 13 years.

In 1974, the Mental Health

Keep reading ...

Consent for Care and Services Alternatives for People with Disabilities

By Attorney Franklin J. Hickman

Everyone seeking health care and services in today’s world is faced with an array of forms which require informed consent. People with disabilities are often told they will need a guardian in order to get the care or services.  This summary examines four alternatives which allow an individual with disabilities to provide legally recognized consent without the need for guardianship.

Durable General Power of Attorney
A durable general power of attorney allows a competent individual to grant an agent or co-agents the authority to act on their behalf which then continues even if the individual later becomes incapacitated. Powers of attorney are flexible and can be tailored to meet specific situations, such as agreement for medical care, or can authorize the agent to act in a broad range of situations. General powers of attorney in Ohio are governed by the Ohio Rev. Code starting at §1337.21.

General powers of attorney must be used carefully and only given to persons who are trustworthy. Powers of attorney can be revoked by the person who signed them at any time.

To properly execute a durable general power of attorney in the state of Ohio, an individual must sign or if unable to sign have another sign on their behalf in their “conscious presence” a power of attorney, and should do so in front of a notary public. Ohio Rev. Code § 1337.25. Additionally, the agent must accept the appointment which is usually done by taking some action on

Keep reading ...

Right to Legal Counsel Extends to Guardianship Review Hearings

By Attorney Elena Lidrbauch

When a guardianship application is initially filed, certain steps must be followed by all probate courts. The case is initially assigned to a court investigator who must meet with the prospective ward (the individual under guardianship) and inform the prospective ward of his or her rights. Included among these rights are the right to receive notice that a guardianship application has been filed, that the prospective ward has the right to be present at the hearing, and the right to be represented by counsel. If the prospective ward is indigent, the court must appoint an attorney to represent the prospective ward[1]. Once a guardianship has been established, the ward has the right to seek termination of the guardianship by requesting a review hearing after a period of 120 days has passed from the establishment of the guardianship, and annually thereafter[2].

In Ohio, guardianships are established and supervised by county probate courts. Ohio has 88 county probate courts and although they all must follow state probate laws as well as rules governing probate court practice adopted by the Ohio Supreme Court, the county probate courts may adopt local rules and practices that are unique to each county. This results in variation among county probate court practices and how a particular case is handled. This may also result in different treatment of wards in guardianship proceedings. For example, until recently some county probate courts have appointed counsel to represent an indigent ward in guardianship

Keep reading ...

Does My Adult Child Need a Guardian?

Parents often ask about establishing guardianship for their child.  Usually this occurs when a child has a disability and is about to turn 18.  The parents may be aware, or have been told by someone, that once a child reaches age 18, he or she has reached the age of majority and is presumed (unless proven otherwise) to be competent.  Furthermore, the parent will no longer be the decision-maker when it comes to that child’s education or healthcare.

For many parents, and especially for parents of children with disabilities, this is a scary proposition.  Understandably they want to remain involved as an advocate for their child and be included in discussions and decisions regarding that child’s education or healthcare.  They are concerned that once their child turns 18 the parents will be denied information by the educators and other service providers who care for their child with special needs.  So when some well-meaning person suggests guardianship as a solution, parents will often be ready to file the application and get appointed as their child’s guardian.  But is guardianship the answer for every situation? This is where we begin our discussion.

Guardianship may be established by a probate court in the county where the child resides.  The court generally considers three questions when deciding whether to appoint a guardian: 1) Is the child legally incompetent? 2) Is there a less restrictive alternative? 3) Is the individual applying to be guardian suitable?

Ohio’s definition of legal incompetence is someone who, as a

Keep reading ...

Ohio’s New Self Determination (SELF) Waiver

frankBy Attorney Franklin J. Hickman

The Ohio Department of Developmental Disabilities (“DODD”) will begin implementing the Self Empowered Life Funding (SELF) Waiver in July 2012.    DODD notes, “The SELF waiver is the first DODD-administered waiver that incorporates self-direction, which allows individuals with developmental disabilities to control their individual waiver budget and to direct where and how they receive those services.”

SELF Waiver rules are at Ohio Administrative Code 5123:2-9-40 to 47.  The SELF Handbook is an easily readable summary of the program.

DODD is currently projecting services under the SELF Waiver for up to 500 individuals for the first year, 1000 (cumulative) in year two, and 2000 (cumulative) by year three.  Services are available for persons with intensive behavioral needs.

Funding limits: Children (under 22) – $25,000; Adults – $40,000.   Some services have specified funding limits, either alone or in combination.

Covered Services

  • Support Brokerage ($8,000/yr. max.)
  • Functional Behavioral Assessment ($1,500/yr. max.)
  • Clinical/Therapeutic Intervention
  • Remote Monitoring & Equipment ($5,000/yr. max.)
  • Respite: Community & Residential
  • Integrated Employment
  • Participant/Family Stability Assistance
  • Community Inclusion (Personal Assistance, Transportation)
  • Participant-Directed Goods and Services
  • Adult Day Supports
  • Vocational Habilitation
  • Supported Employment – Enclave
  • Non-Medical Transportation

To be eligible, the participant must be

  • Medicaid eligible.
  • Meet eligibility criteria for services from an Intermediate Care Facility for MR (ICF/MR).
  • Willing and able to perform the duties associated with participant direction, including either budget authority or employer authority (or both).
  • Able to have health/welfare needs met through SELF waiver and other available supports.
  • Be in need
Keep reading ...

Long May They Waive: An Overview of Waivers for Persons with Developmental Disabilities

frankBy Attorney Franklin J. Hickman

Medicaid waivers provide significant support to keep people with disabilities in community settings rather than in institutions or nursing homes; these waivers also allow families of any income level to access a broad range of Medicaid benefits.  The waivers for those with developmental disabilities (“DD”) and the home care waiver make these benefits available to individuals of any age.  With shrinking state budgets, Medicaid has emerged as the most important funding source for residential services in the disability community.

When Medicaid was first established in 1965, Congress provided for a range of supports, including long term support for care in nursing homes and Intermediate Care Facilities for Mentally Retarded (ICFs/MR).  By the 1990’s, the system encouraged states to develop experimental programs, locally and state-wide, which were designed to support community-based services for people who would otherwise be required to live in an institutional setting in order to receive Medicaid.  These innovative programs allowed states to waive certain basic Medicaid requirements, including the requirement for institutional placement and the requirement that parental income be considered in determining financial eligibility of minors.

Ohio has established two waivers for persons with DD and has recently received approval for a third effective July 1, 2012.

The Level One waiver is for people with developmental disabilities who require the care given in an ICF/MR, but would prefer to live at home and have a network of family, friends

Keep reading ...