An Ohio county probate court appoints a legal guardian for a child under 18 years old (also known as a ward) if their parents die, are unfit, or otherwise unable to take care of them. This is known as guardian of the person.
A minor who receives a share of an estate valued at $25,000 may have a guardian of the estate. One guardian may act in both roles. A guardianship of the person ends when the minor turns 18, gets married or dies.
Guardianship in Ohio
A minor's default legal guardians are typically their parents, as they are responsible for their child’s welfare. However, a parent may be unable to take care of the minor, or ward, requiring another adult to make legal decisions for them. Guardians are chosen voluntarily by a child’s family or next of kin or the court may appoint them.
Guardianships are put in place to ensure that the ward’s needs are met. In Ohio, those who need guardians are under 18 years old, adults who are developmentally disabled or incapacitated and cannot take care of themselves.
Types of Minor Guardianships in Ohio
Ohio Section RC 2111.12 governs guardianships for minor children. Ohio has three types of guardianships:
- Guardianship of the person: Granted when a minor’s parents cannot or will not provide care and guidance to the minor, or when a guardianship is in the best interest of the minor.
- Guardianship of the estate: Granted when the minor has received more than $25,000 in property. Ohio law requires legal assistance for a minor with financial administration.
- Guardianship of the person and estate: Granted when it is necessary to control both the ward and their assets.
Rights of a Minor in the Creation of a Guardianship
A minor has a right to:
- Receive notification of the time and place for the guardianship hearing if they are 14 years old or older.
- Have their parent or parents notified of the hearing time and place.
- Be present and have their parents present at the hearing.
Guardianship Process and Ohio Residency
The ward’s residency determines the court’s jurisdiction. The minor's home state is where the minor has most recently resided with at least one parent, or with a person acting as such, for six continuous months before filing for the appointment of a guardian. The court cannot appoint a guardian for a child in a specific county unless:
- Minor's home state is Ohio.
- Minor's home state declines exercising jurisdiction.
- Ward has not had parental contact for a minimum of 90 days and has been abandoned.
- Ward has an immediate medical emergency.
The court, the minor’s parents, and other parties cannot waive jurisdictional prerequisites. By a specific order, the minor’s home state may waive jurisdiction, allowing early action to be taken in Ohio.
Nonresident Minors With Ohio Property
When a ward is not a resident of Ohio, but has real or personal property in the state, the court may appoint a local, or resident, guardian whose role it is to collect, manage, lease and otherwise take care of the ward’s property in the state.
This appointment can occur even if a guardian exists in the ward’s home state. The resident guardian for a minor living outside of Ohio must follow the same laws as a guardian of the estate for a minor already living in Ohio.
A nonresident guardian may make a request from the court that the Ohio assets be paid to them after a hearing and 30 days' notice. If the nonresident minor moves to Ohio and becomes a resident, and the court appoints a general guardian for that minor, then the nonresident guardianship ends, and the new Ohio guardian receives the funds.
What Are a Guardian’s Responsibilities?
The guardian of the person of a minor:
- Oversees the minor’s general health and welfare and assures their everyday needs are met.
- Makes decisions about the minor's education, housing, medical care, personal care and transportation.
- Makes decisions in the best interests of the ward, not their own.
- Will not typically spend personal assets for the minor’s benefit, unless they are obligated to support the ward as the minor’s parent.
A guardian of the estate for the minor:
- Accounts for, manages, invests, secures and reports on the ward’s financial assets and property to benefit the ward.
- Cannot self-deal with the wards’ assets.
- Cannot commingle their personal assets with the minor’s.
- Must account for the minor's income and expenditures to the court every year.
- Is limited on the types of investments they can make with the ward’s assets.
Who Selects a Guardian?
An Ohio county probate court appoints and selects guardians. Minors 14 years old or older and their parents, with a durable power of attorney or a will, can nominate or suggest a candidate, which the court will consider. Guardians must obey court orders and must take a guardian’s oath before a judge or magistrate before their appointment.
The court only appoints an Ohio resident as a minor’s estate guardian, but a nonresident family member may be a guardian of the person. If an Ohio estate guardian moves out of state, their appointment will be revoked and a successor resident guardian will be named and appointed.
How to File for Guardianship in Ohio
An interested party who wants to be a guardian must file an application with the probate court in the minor’s county of residence, and the court may also commence a minor’s guardianship on its own. The court will require an applicant who is not an attorney to take a guardianship training court presented by court personnel at a designated time.
A guardian must sign and complete an affidavit listing the minor’s prior addresses and all the court proceedings involving them. If there have been any previous case filings having to do with a minor’s custody or visitation, they must be described, and a certified Order of Entry must be given to the court when filing.
Documents and Filing Fees
If the document is written in a foreign language, the applicant must provide certified translation. Certain documents are needed to file for guardianship:
- Guardianship application filed in the proposed ward’s county of residence.
- Copy of the applicant’s driver’s license or government-issued photo ID.
- Certified copy of the ward's birth certificate.
- Applicable probate forms.
Application fees vary by county. For example, in Franklin County the fee is $124, and in Delaware County it is $125 for a Guardian of the Estate, but $225 for a Guardian of the Person, or for both.
If the court finds the interested party’s affidavit to be untrue, the court cannot proceed, and there will be no refund.
Court Supervision of Guardians
A guardian of the person must file an annual guardian's report that identifies the ward’s status and verifies the reasons for the guardianship to continue. An estate guardian must file an initial inventory of the minor's assets with a yearly accounting that reflects their income and expenses along with receipts for every expense. They must prove that the remaining assets still exist.
An estate guardian must get court approval before they:
- Possess accounts held in the minor's name.
- Expend any of the child's assets.
- Sell the minor's real estate or personal property.
- Mortgage the minor’s property.
- Settle legal claims.
What Happens When a Guardian Quits?
A person who no longer wishes to be a guardian must give the court advance written notice of at least 15 days. In that instance, the court will approve the former guardian’s resignation and revoke their Letters of Guardianship.
Between the time the guardian files their resignation notice and the court’s appointment of an interim guardian, the current guardian remains responsible for taking care of the minor.
Appointment of Interim and Successor Guardians
The court will select an interim guardian before selecting a successor guardian. This could be for the individual, the estate or both. Within 30 days of the resignation’s approval, the original estate guardian must transfer all estate assets and financial records of the minor to the estate or the successor guardian before filing their last accounting.
The guardian of the minor that is resigning must also transition the information regarding the minor’s personal care, health care and other needs to the successor guardian.
Duties of an Interim Guardian
The court will appoint an interim guardian or an interested party to make sure the child's interests remain protected until a suitable successor guardian is appointed.
A person in the role of interim guardian may be a family member who is willing and able to take responsibility or a suitable third party if the minor's family or friends are unsuitable, unwilling or unavailable to take on the role.
The interim guardian’s initial appointment is in effect for up to 15 days, and the court will serve the minor with a copy of the appointment order. When the minor and interested parties are notified, the interim guardian’s appointment may be extended for an additional 30 days while the court finds a successor.
How Does a Guardianship Terminate?
Once a minor turns 18 years old, their guardianship will end. Marriage of a minor also ends guardianship of the individual, but not of their estate. Guardianship also ends if the ward dies.
The court may determine that the minor is not receiving proper care and will send its findings to the juvenile court for further action. It may also remove the guardian.
Guardianship Conflict of Interest
If the net amount of a legal claim passing to a minor is $25,000 or less, and the proceeds are not from a wrongful death settlement, the minor’s custodial parent may apply for approval of the settlement without appointing a guardian.
The court may appoint an attorney to represent the child and present their position on the settlement adequacy and terms. The court may alternatively appoint a guardian ad litem – a person to advocate for the best interest of the child.
The court determines compensation and fees for an attorney and a guardian ad litem. Sources for payment can include the minor’s parents, settlement proceeds or guardianship assets.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.