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How Do I Know if My Child Needs a Guardian?

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By Attorney Amanda M. Buzo

While a child is under the age of 18, the natural or adoptive parent is the “natural guardian” and has the ability to make decisions for the child without court involvement.  But what happens when the child turns 18?

The age of majority in Ohio is 18, which means that even if your child is still in high school, living in your home, and eating the cereal you purchase at your kitchen table every morning, the child is now an “adult” and has legal authority to make his or her own decisions.  But what if you think your child is unable to make good decisions?

Guardianship is necessary when a person has a physical or mental disability or chronic substance abuse problem that renders him or her incapable of taking proper care of his or her person or property, which can range from the person’s inability to give informed consent for a medical procedure to not being able to manage his or her bank account.  The person under guardianship is referred to as a “ward.”

We have all made bad decisions at some point in our life; does that mean we all need guardians?  We know the answer is no, but for some of our loved ones, the answer is not so clear.  How do you then know if guardianship is necessary?

I suggest that clients speak with their child to discuss the child’s plans.  There are many people with disabilities who need some assistance, but do not require a guardian.  In these situations, guardianship alternatives may be a better option.  Guardianship alternatives are items such as durable powers of attorney, mental health declarations, or powers of attorney for health care, and are granted by the adult child to a person who has the responsibility to make appropriate decisions for him or her.  It is important to recognize that the adult child granting the power, often referred to as the “principal,” can also revoke the document if the child is competent at the time of revocation.

Another suggestion is to speak with your child’s physician or clinical psychologist to determine his or her opinion.  Some physicians or psychologists may refuse to provide you with information without your child’s consent once your child is 18, so it may be a good idea to request this information shortly before your child turns 18, while you still have legal authority.

It is often helpful to show the physician or clinical psychologist the “Statement of Expert Evaluation” (Form 17.1) to assist the medical professional in providing you with an opinion.  Here is Form 17.1 as provided by the Ohio Supreme Court.  You can also find all of the guardianship forms for the county in which the ward resides by visiting the county probate court’s website or courthouse.  If you do pursue guardianship, this form would be completed by the physician or clinical psychologist and submitted with the guardianship application as support for the guardianship.

The decision on whether or not to pursue guardianship is a deeply personal one.  The probate court is the “superior guardian” of any ward, which means that applying for guardianship invites the court into the decision-making process.  On the other hand, guardianship is also necessary and unavoidable in many cases, and the burden of court oversight is far outweighed by the benefit and protection guardianship can provide.

Posted in Articles, Articles: Children with Special Needs.