Guardianship for Minor – FAQ

The Ohio law permits the Probate Court to appoint guardians for minors:

When a child is under 18 years of age and the parents are dead, are unsuitable persons to have custody, or when the best interests of the minor would be otherwise served. If a minor has a claim for personal injuries, or inherits assets, a guardian also may be appointed to receive, preserve and invest those assets until the minor attains 18 years of age, even if a parent is living and fully capable of caring for the minor.

The Probate Court appoints and selects all guardians.  Both the minor who is age 14 or older and a minor’s parent (through a will or durable power of attorney) may nominate or suggest a guardian for a minor.  The nominations are suggestions or preferences to be considered by the Court.  Nominations are considered, but are not binding on the Court.

The Court may only appoint an Ohio resident as a guardian of the estate of a minor.   A non-resident family member may be appointed a guardian of the person of the individual.  If an Ohio guardian of the estate moves from Ohio, the appointment of that guardian as to the minor’s estate will be revoked and a successor resident guardian for the estate will be appointed.

An application by an interested party is made to the Probate Court of the county of residence for the minor for whom the guardianship is needed.  It is assumed that the applicant is also seeking to be appointed as the guardian.  Making the filing is an indication of a willingness to assume the responsibility, unless clearly indicated otherwise on the application.  The Court may also commence a guardianship on its own motion.

Residency essentially determines the existence of jurisdiction.  A minor’s “home state” is the state in which the minor most recently resided with one or more parents, or a person acting as a parent, for six consecutive months prior to the filing of the guardianship proceeding.  This Court does not have jurisdiction to appoint a guardian for a minor living in this county unless (a) Ohio is the home state, (b) the home state has declined to exercise jurisdiction, (c) the minor has been abandoned (no parental contact for at least 90 days), or (d) there is an immediate medical emergency.  The jurisdictional prerequisites cannot be waived by the minor’s parents, the parties, or this Court.  The home state may, by specific order, waive jurisdiction and defer to early action being taken in Ohio.  The operative statutes are contained in the Ohio Uniform Child Custody Jurisdiction and Enforcement Act and they are intended to reduce child snatching and avoid the creation of conflicting orders in different jurisdictions.

The minor has a right:

1. to be notified of the time and place for the hearing, if over age of 14,
2. to have each parent whose name and address is known or with reasonable diligence can be ascertained notified of the time and place of the hearing, provided the parent is not also under a disability other than minority, and
3. to be present, to have the parents who can be notified, be present at the hearing.

Often the person appointed to be the guardian of the person is a family member.  The guardian of the person is responsible for overseeing the general health and welfare of the minor and assuring that the everyday needs of the minor are met.  The guardian of the person makes decisions about the minor’s housing, medical care, education, transportation and personal care.  In every instance the decisions must be made in the best interests of the minor, not the guardian’s personal best interest.  The guardian is not expected to spend any personal assets for the benefit of the minor, unless the guardian is otherwise obligated to support the minor under applicable law as the minor’s parent.

A guardian of the estate is responsible for securing, reporting, accounting for, managing and investing the financial assets and property of the minor.  This is done for the exclusive benefit of the minor and the guardian may not self-deal with the minor’s assets. The guardian of the estate may not commingle the minor’s assets with the guardian’s personal assets and must annually account to the Court for each item of income and expenditure.  There are limitations on the type of investments that a guardian may make with the minor’s assets.

Guardians must obey the orders of the Court.  Before being appointed, each guardian must execute a Guardian’s Oath in the presence of the Judge or Magistrate whereby the Guardian agrees, under oath, to perform the duties of the guardian.

A guardian of the person must file annually a Guardian’s Report which identifies the minor’s current status and verifies the continued need for the guardianship.

A guardian of the estate is required to file an initial Inventory of the minor’s assets and an annual Accounting reflecting the income and expenses of the minor’s assets accompanied by receipts for each expenditure and proof of the existence of the remaining assets.

A guardian of the estate must obtain prior approval before (a) taking possession of accounts held in the Minor’s name, (b) expending any of the assets of the minor, (c) selling the minor’s personal property or real estate, (d) mortgaging the minor’s property, or (e) settling claims of the minor.

The Court is the superior guardian for all minors under guardianship.  The Court may order that its own Court investigator, or a Court Visitor to visit the minor and/or the guardian and then report to the Court whether the guardianship is functioning properly and to offer referrals and guidance to the Guardian.

A guardianship for a minor terminates when the minor attains age 18 or when otherwise ordered by the Court.  If the Court determines the minor is not receiving proper care, the Court may certify its findings to the Juvenile Court for further proceedings.  The Probate Court also may remove the guardian.

Marriage of a minor will terminate the guardianship of the person, but not the estate of the minor.

A guardian who wants to resign must provide the Court with 15 days advance written notice.  The Court will typically appoint an Interim Guardian (see next FAQ) and approve the resignation and revoke the Letters of Guardianship issued to the resigning guardian.  During the period following the notice and until an Interim Guardian is appointed, the resigning guardian remains responsible for continuing to perform the responsibilities of being a guardian.  The Court will proceed with the selection of a successor guardian (for the person, estate, or both) to succeed the Interim Guardian.  Within 30 days of the resignation being approved by the Court, the resigning guardian of the estate is required to transfer all of the assets and financial records of the ward to the successor guardian or the estate and file a final accounting. The resigning guardian of the person is required to facilitate the transition of all of the information regarding the ward’s personal care, health, and other needs, including the ward’s personal records, to the successor guardian of the person.

Upon learning of the death of a guardian, the Court, on its own motion or upon a motion filed by an interested party, will appoint an Interim Guardian in order to assure the interests of the ward are protected until a suitable successor is appointed. The Interim Guardian may be either a willing and suitable family member, or a suitable third-party if family or friends of the ward are not available, are unsuitable, or are unwilling to serve.  The initial appointment of the Interim Guardian is effective for a maximum of 15 days.  The Court will then serve the ward with a copy of the order.  With notice to the ward and interested parties and after a hearing, the interim appointment may be extended within the initial 15 days for an additional 30 days while the Court determines the appropriate successor guardian.

The family member serving as a guardian for a minor child will not be compensated for the services as guardian.  Compensation for a non-family third-party guardian of a minor shall not be approved unless the minor has assets from which payment may be made.

A Guardian may find that they have a ward who qualifies for the establishment of an Ohio ABLE account (referred to by the administering Treasurer of Ohio as a STABLE account).  These accounts are authorized by federal law and corresponding Ohio implementing legislation (RC 113.50, et esq.) for individuals with disabilities arising prior to age 26 and who meet other requirements.  The assets/income in the account are not countable resources for purposes of several governmental benefit programs.  A guardian can establish a STABLE account for a qualifying ward, using assets and/or income of the ward, with prior court approval.   A local probate form has been created for use in applying to the Court for such authority.  It is included on this website as a post-hearing form and also on the Local Forms tab.  The

Treasuer’s website for STABLE accounts is www.stableaccount.com.

Due to the technical aspect of the legal process, the language, and the permanency of the outcomes, the Probate Court strongly recommends that all Applicants for appointment as a guardian seek legal counsel especially if they are seeking to be appointed guardian of the estate.

Having an attorney is critically important for guardians of an estate of an individual because of the complexity of the accounting, investment and expenditure laws.  Failing to follow the proper laws can result in contempt citations, sanction and even criminal charges.  The attorney fees for services to the guardianship are generally approved by the Court as allowable expenses to be paid from guardianship assets.

Good legal advice will hasten the probate process, prevent costly mistakes, and lessen the chances that the Applicant will be faced with suits by other heirs, creditors or family members.  Deputy Clerks of the Probate Court are prohibited by Ohio law from assisting in the preparation of the required forms.