In the event of illness, injury or onset of dementia, it may become necessary for other persons to act on your behalf in regards to your financial matters or healthcare decisions. The way that someone is appointed to step in for you is through a court process known as a guardianship or conservatorship proceeding.
In Ohio, a conservatorship is a voluntary relationship whereby one party, known as a conservator, acts on behalf of a mentally competent, but physically unable adult under the supervision of the Probate Court.
Conservatorship deals with the estate, personal property, and other business affairs of an individual. The process is initiated when a petition is filed with the Probate Court. The Probate Court will hold a hearing, whereby the judge will evaluate the petition, ensure that the conservatorship is being sought voluntarily and that the person being appointed is able and qualified to act on behalf of the disabled individual.
The conservatorship ends upon disabled individuals preparing a written termination notice and filing it with the court within fourteen days of the date it was signed. Additionally, if the disabled individual dies or is found mentally incompetent, the conservatorship will end.
A guardianship, on the other hand, deals with handling the affairs of someone who is legally incompetent to handle his or her own affairs. Ohio Revised Code 2111.01 defines a guardian as any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or both of an incompetent or minor. A guardianship can be a temporary arrangement and be limited to only handling certain matters. Generally speaking, the different types of guardianships include a guardianship over the person him or herself and guardianship over the estate.
The person appointed has a fiduciary duty to act in the best interests of the person whom they are acting on behalf of. Additionally, the guardian may be liable to the person he or she represents for any damages stemming from the wrongful use of property or loss suffered by the estate that as a result of the guardian’s failure to act with a reasonable duty of care.
If you have questions about a probate or guardianship proceeding it is important that you seek the advice of a qualified attorney.
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