Guardianship establishes legal authority to make decisions for someone else. This could be for an adult unable to care for themselves or a child whose parent(s) can’t care for them. Guardianship offers many benefits, but it may not be right for every situation. Thankfully, alternatives are available for those who need or want them.
Terms to Know
- A “guardian” is a person appointed to care and manage the person, the estate, or both, of an incompetent minor.
- A “ward” is a person “for whom a guardian is acting.”
- An “incompetent” is any person who is mentally impaired (due to mental or physical illness or disability, intellectual disability, or chronic substance abuse) and is incapable of taking proper care of themselves or property. They also fail to provide for their family or other persons for whom they are charged by law to provide.
There are many advantages to guardianship. It removes the ward from unsafe conditions, protects assets, and is available when advanced planning is not.
Types of guardianship
1. Of the person
When someone is a guardian of a person, it requires them to make decisions on the care and support of an elderly, minor, or incapacitated individual.
2. Of the estate
A guardian of the estate is responsible for overseeing financial matters on behalf of their ward. Guardians will need court approval for the selling and spending of any assets.
3. Limited guardianship
Ohio law permits the Probate Court to limit the power of a guardian. For example, a guardian may be limited to providing medical consent only, and the arrangement may only be for a set timeframe.
4. Emergency guardianships
Emergency guardianship is granted by the Probate Court if circumstances present immediate harm to the ward or risk to their estate. This is temporary but can be extended.
Conservatorship is “voluntary” guardianship permitted under Ohio law. An individual can have both a guardian and a conservator, and they may be the same person.
Alternatives to Guardianship
Guardianship may come with some disadvantages. It can be bureaucratic, expensive, and takes a lot of time and work. Additionally, the hearings may be stressful to the ward. For these reasons, someone may seek an alternative. Below are a few to consider.
1. A trust
A “trust” is a legal document wherein a grantor’s assets are managed by a trustee for beneficiaries – think of beneficiaries as “who” will benefit, like a child or spouse. Whoever is chosen as the trustee must have the best interest of the beneficiary in mind.
2. Durable power of attorney
A “durable power of attorney” is a legal document authorizing someone to act on your behalf for matters like finance or healthcare. The “durable” part simply means the agreement remains in effect even if the individual becomes incapacitated.
3. Healthcare power of attorney
A “healthcare power of attorney” authorizes someone to make healthcare decisions for another person. Ohioans are required to use a state-specific form to designate a power of attorney.
4. Living will declaration
A “living will declaration” is a legal document which allows a person to declare what they want if they become terminally ill or permanently unconscious. This differs from a healthcare power of attorney because no one is acting on behalf of the individual; instead, the individual is providing advance instructions for their care, on their own.
5. Declaration for mental health treatment
Unlike a healthcare power of attorney which covers both mental and physical illness, the Declaration for Mental Health Treatment solely addresses mental health.
How General Electric Credit Union (GECU) can help
Guardianship and guardianship alternatives are a means to protect individuals and their assets. Deciding what’s best for a loved one is a personal and important decision best made with legal guidance. GECU members are entitled to an initial consultation with a Wood + Lamping LLP attorney at no cost.* With expertise in 18 different practice areas, members can trust Wood + Lamping to assist them with any matters involving guardianship or alternatives.
Get more information about guardianship and the alternatives by watching GECU’s complimentary webinar Alternatives to Guardianship. Or, enlist this short guide to learn more about Alzheimer’s disease and when a durable power of attorney is appropriate.