This information is provided to the public in order to provide a general understanding of the duties and procedures of the Probate Court in reference to guardianships. This information should not be considered as a legal reference. If you have any legal questions dealing with guardianships, an attorney should be consulted.
What is a Guardianship?
A guardianship is an involuntary trust relationship in which one party, called a guardian, acts for an individual called the ward. The law regards the ward as incapable of managing his or her own person and/or affairs.
What is a Guardian?
A guardian is any adult person, association, or corporation appointed by the Probate Court to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person or minor child. A corporation can only be guardian of the estate and not of the person.
Who needs a Guardian?
A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
Incompetent: Any person who is mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state.
Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.
Minor Settlement: Natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $25,000, the Court will require the appointment of a guardian of an estate.
Who Chooses the Guardian?
The Court appoints the guardian. However, a minor over 14, or the parents by will, may suggest a guardian for a minor. In addition, an adult, while competent, may nominate a guardian to serve in the event of incapacity.
Top of Page
- Application for guardianship is filed in the Probate Court of the County of the ward's residence by an interested party, or on the Court's own motion.
- Application must include a statement of the guardian's willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward's mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.
- The prospective ward, as well as the adult next of kin, are notified of the impending guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator.
- An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship.
- Formal hearing is conducted by the Judge or Magistrate to determine if a guardian is necessary and whether the guardian is suitable to serve.
Right of the Ward
The prospective ward has the right to be present at the hearing to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.
The Probate Court is the superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:
Accountings: A guardian of the estate must file a written account with the Court biennially (annually in V.A. cases) as to the income and expenses of the ward's estate.
Reports: A guardian of an incompetent ward must file a written report annually or biennially. The report identifies the status of, and need for the guardianship.
Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian's fee, or remove, the guardian.
Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.
Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvements to real estate or mortgaging real estate, selling assets, settling any personal injury claim for the ward or spending the ward's funds.
Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.
Top of Page
Types of Guardianships
Person and/or Estate: A guardian may be appointed either a guardian of the person, a guardian of the estate, or both. A guardian of the person has custody of, controls, and protects, the person of the ward. A guardian of the estate controls and protects the assets or property of the ward.
Limited: A guardian may be appointed with limited powers to make restricted or specific decisions of the ward. The ward retains all powers not granted to the guardian.
Emergency: In an emergency in which significant injury to a prospective ward may occur unless immediate action is taken, the Court may appoint an emergency guardian for 72 hours.
A guardian's compensation and attorney's fees are set by Court rule, and must be approved prior to fees being paid.
A Court order will terminate a guardianship upon the death of a ward, upon the ward being adjudged competent, or, in the case of a minor, upon reaching the age of majority (18). A Motion for termination of a guardianship of an incompetent may be filed 120 days after an appointment of a guardian, and once every year thereafter.
Click here to view the CourtWise Guardianship Training Course
The forms at the end of this video are not valid for Cuyahoga County Probate use. Please click here to access our forms.
Top of Page