Let Your Wishes Be Known!

By Attorney Amanda Buzo

A friend of mine called me with a desperate plea for help.  His wife had given birth a year prior and they were getting ready to leave for their first post-child vacation.  Their bags were packed, but his wife was refusing to board the plane.  They had not reviewed any of the estate planning documents I prepared for them and instead left them sitting on the kitchen counter for months.  His wife was not concerned with what would happen to their “stuff” in the unlikely event they expired during this much-needed vacation.  No, she cared about making sure her in-laws did not “get” their young son if they passed away.  She wanted their little bundle of joy to be raised by her sister, and my friend agreed.  “Never fear, you will be on that plane,” I assured my friend.  “Now follow my instructions . . .”

You should not wait until you are facing imminent or imagined death to make decisions regarding guardianship.  “Guardianship” is the term used to describe the relationship between the guardian (the person appointed by the probate court to care for someone else) and the ward (person who needs a guardian).  Parents are the “natural” guardians of their children who are under the age of 18 and do not have to petition the probate court to be the guardian of their minor children; however, the minor child may need a guardian if his or her parents are injured or pass away.

The parent’s nomination for guardian should be in writing.  The nomination can be in a document that specifically addresses guardianship or it can be included in another document, such as a last will and testament or durable power of attorney.  The nominee is not required to live in Ohio, but there may be situations where a local guardian is in the child’s best interest or required by the probate court.

A common misconception is that the written nomination alone gives the nominee the authority to act as guardian.  In fact, the probate court must issue a letter of guardianship appointing a guardian before the individual or entity has authority to serve as guardian.  Once a guardianship is needed, the person who wishes to act as guardian must submit an application to the probate court in the county in which the ward resides.  Each county has its own procedure, but, generally speaking, the applicant is required to provide a list of the ward’s next of kin and attend a hearing.  Since any interested party may apply to be guardian, a written nomination from a parent could be used to settle any disagreements as to who should serve if the parent has passed away.  Every child under 18 without parents living is presumed to need a guardian (and those over 14 are asked about their preference).

A guardian may also be necessary even when the parents are living if the adult child is deemed “incompetent”.  When a child turns 18, he is no longer a minor and “becomes his own guardian.”  As a result, his parents no longer have legal authority to make financial or medical decisions for him even if they are living and even if the child has profound disabilities, despite the fact that the now-adult child may remain dependent on the parent for things like shelter, money, making doctors’ appointments, college tuition, or health insurance.

If an adult child needs a guardian because of a physical or mental impairment (the legal term is “adult incompetent”), the parent would have to follow the same procedure explained above to apply to serve as guardian, plus any applicant would also be required to submit a statement of expert evaluation completed by a licensed physician or clinical psychologist explaining why a guardian is needed for the adult child.  Some parents may find the process tedious, surprising, or distressing; after all, who knows a child better than the parent?   But the probate court takes its role as superior guardian very seriously and wants to ensure that the adult child with disabilities receives the care that he or she deserves, as well as the highest level of independence and dignity, in the least restrictive environment, as his condition will allow.

If you have a minor child or a child of any age with disabilities who may need a guardian as an adult, don’t wait until you are boarding that plane.  Let your wishes be known now.  “It takes as much energy to wish as it does to plan.” — Eleanor Roosevelt

Posted in Articles, Articles: Elders and Their Caregivers.