How Does Guardianship Relate to Estate Planning Law?

Guardianship + Estate Planning

Regarding estate planning in Ohio, guardianship is often required when an individual suffers from an incapacitated situation and can no longer handle their affairs or see to their children or assets. Guardianship is a probate court decision that is in effect during an individual’s lifetime, but unable to care for themselves or manage their finances.

The court will then assign an individual—a guardian—to become responsible for making decisions regarding your living arrangements, medical care, finances, managing the purchase and sale of significant assets, and other duties.

How Does Guardianship Work?

When a guardian is named—whether it’s someone you previously assigned or was assigned by the court—the court’s guardianship decision determines their obligations and scope of authority.

Here is how different types of guardianship work.

1) Plenary and Limited Guardianship

Plenary guardianship simply says that the guardian can take any action on behalf of their ward, i.e., the person declared incapacitated. Any acts taken by the ward, such as writing a check or selling property, would be considered invalid. Those actions are only authorized to be performed by the guardian assigned by the court.

“Plenary” indicates that the guardian has been granted all potential rights of the ward.

Limited guardianships cover cases when an individual is only partially incapacitated. This limits the guardian’s authority without entirely removing it. For instance, the court may declare the ward to have enough decision-making abilities to determine where they live but not necessarily be able to make their own financial or medical decisions.

2) Guardianships of the Person and the Property

A judge can choose one person to oversee medical choices, also known as guardianship of the person, and another person to manage financial transactions, also known as guardianship of the property. This could be two separate people or the same person. Multiple guardians may be the best choice when specific family members have distinct skill sets for handling funds vs. making medical decisions, and the family asks the court to appoint different people for each duty. Depending on the role the guardian is limited to, there will also be defined responsibilities. Decisions related to money management fall to the guardian of the property. Decisions regarding medical and personal decisions would fall to the person’s guardian.

The judge may grant a professional guardian guardianship authority over some matters but not others. For instance, a judge might divide guardianship responsibilities based on whether there is family conflict over particular financial issues but not so much over medical ones. In that case, a professional guardian may become the guardian of the property while a family member s designated a guardian of the person.

3) Multiple Guardians

On rare occasions, a court may assign more than one individual as the incapacitated individual’s guardian. Because of the potential for communication issues, courts typically do not like setting up this arrangement. However, if circumstances demand a scenario like this, it is an option judges may exercise. For example, the court could name co-guardians if the two designees are known to work well together.

Selecting a Guardian

Remember that you have a voice in who is named guardian, although it’s best to put those names forward sooner than later. For both guardian roles—whether held by one person or two—it’s essential to select someone you trust to do a good job and follow your wishes.

When choosing a guardian of the person (either in a plenary or limited role), consider how local the guardian is to you. For example, physical proximity could be significant if you’re physically incapacitated. Also, do you and the potential guardian have similar values? This could affect certain medication decisions.

For a guardian of the property, ask yourself if that person is skilled at managing money. How is that person’s financial situation? Are they good at record-keeping? Are they organized and trustworthy?

Finally, in both cases. Is that person willing to take on the role, and will they remain committed to their obligations?

Ideally, you want as much say as to who cares for you, your family, and your assets should you become unable to do so. Choosing early can help avoid friction between family members and offers reassurance that needs will be met. Delaying the decision until it’s too late won’t prevent guardianship from being put in place if necessary, but it may prevent you from having a say in who is assigned.

Estate Planning and Your Guardianship

Having to consider becoming unable to care for yourself and your interests can be distressing, but it is, nonetheless, an essential part of estate planning.

The legal teams at Heban, Murphree & Lewandowski, LLC can answer any of your questions about arranging guardianships as part of your overall estate plan and guide you through the process so you can rest well knowing arrangements have been made.

Call today for a free consultation and to get started on your estate plan. 419.662.3100