GUARDIANSHIP Trends

PracticeAspirations

Judge Dixie ParkStark County Probate Court

36 million Americans are 65 years old or older

12% total population

OHIO◦2006

36 Ohioans turned 65 every day

◦2011142 Ohioans will turn 65 every day

Federal Interagency Forum on Age-Related Statistics, 2004 National Center for Health Care Statistics, http://www.agingstats.gov/

OHIO•15,000 people turn 60 years old every month

•13.7% of Ohioans are 65+

Ohio Dept. of AgingWorld Report on Violence and Health Chapter 5

203071 million Americans will be 65+

There will be more persons above the age of 65 than under 18

Federal Interagency Forum on Age-Related Statistics, 2004 National Center for Health Care Statistics, http://www.agingstats.gov/

According to the National Center for Healthcare Statistics (2004), older adults represent: 50% of hospital days used by adults 60% of all ambulatory adult primary care visits to health care providers 70% of all home care visits 85% of residents in nursing homes

OHIO● JANUARY 2009 : 38,857 GUARDIANSHIP CASES PENDING

6,668 NEW CASES FILED 5,513 CASES CLOSED

●DECEMBER 2009: 40,012 GUARDIANSHIP CASES PENDING

Ohio Courts Statistical Report 2009, 2012

OHIOJANUARY 2012: 42,615 GUARDIANSHIP CASES PENDING

DECEMBER 2012: 6,993 FILED 5,135 CLOSED

DECEMBER 2012: 44,473 GUARDIANSHIP CASES PENDING

Ohio Courts Statistical Report 2012

How to Tell When It's Time to Buy a Hearing Aid...

O.R.C. 2111What is a Guardianship?

A guardianship is an involuntary trust relationship in which one party, called a guardian, acts on behalf of another individual who is incompetent and is called a ward

What is a Guardian? 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 a minor. O.R.C. 2111.01(A)

A corporation can only be guardian of the estate and not of the person except Advocacy and Protective Services, Inc., which provides guardianship services for individuals with developmental disabilities O.R.C. 2111.10

Who needs a Guardian?

A guardian may be appointed for either an incompetent or a minor, which are defined by statute

What does it mean to be incompetent?Any person who is so 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 /she is incapable of taking care of him/herself or his/her property or fails to provide for his/her family or other person for whom he/she is charged by law to provide, or any person confined to a correctional institution

● physical incapacity alone is not a basis for guardianship

● a physically incapacitated adult who is not incompetent can apply for conservatorship O.R.C. 2111.021

Who chooses the Guardian?

The probate court appoints the guardian. In addition, an adult, while competent, may nominate a guardian and successor guardian to serve in the event of incapacity. R.C. 2111.121

What are the types of guardianships?

Guardian of the PersonGuardian of the Person has custody of, controls, and protects the person of the ward O.R.C. 2111.13

a. Medical Decisions- treatment, procedures

b. Residential Placement- own home or facility

Guardian of the EstateGuardian of the Estate controls and protects the assets or property of the ward O.R.C. 2111.14

a. sale of real estateb. initiation of lawsuitsc. receipt for and disburse assets

The guardian of an incompetent shall be the guardian of the minor children of the ward unless the court appoints some other person as their guardian O.R.C. 2111.02(A)

Limited Guardian

Limited Guardian can be appointed for either a limited purpose and for a specified period of time O.R.C. 2111.02(B)(1) The ward retains all rights not specifically affected by the order appointing the limited guardian

Interim GuardianInterim Guardian is appointed by the court after an appointed guardian is temporarily or permanently removed or resigns

O.R.C.2111.02(B)(2)

Emergency GuardianEmergency Guardian is appointed by an ex parte order if an emergency exists and it is reasonably certain that immediate action is required to prevent significant injury to the person or estate of an incompetent or minor O.R.C. 2111.02 (B)(3)

Issues to consider prior to filing the application for guardianship

Issues to Consider● Is the prospective ward incompetent?

● What is the purpose of the guardianship?

● What specifically are the prospective ward’s assets?

• Inquire about powers of attorney

● O.R.C. 2111.02(C)(6) requires the least restrictive alternative

● Determine if your client is a suitable and qualified person to serve as guardian

Appointment Procedure● Application for guardianship forms must be filed in the probate court of the county of the ward’s residence by an interested party, or on the probate court’s own motion

● The probate court will schedule a hearing allowing adequate time for service

Notice Requirements7 days notice required

•upon the prospective ward by personal service by the probate court investigator O.R.C. 2111.04(A)(2)(a)(i)

•upon the next of kin of the prospective ward who are known to reside in the state O.R.C. 2111.04(A)(2)(b)

The Hearing O.R.C. 2111.02(C)a. The proposed guardian must appear at the hearing O.R.C. 2111.02(C)b. A record of the hearing is not automatic, and must be requested by the moving party O.R.C. 2111.02(C)(4)c. Issues before the probate court i. Incompetence – The burden is upon the applicant by clear and convincing evidence O.R.C. 2111.02(C)(3) ii. Suitability – The probate court must determine if the applicant is a suitable and qualified person to serve and that he/she will properly fulfill his/her duties O.R.C. 2111.02(C)(1)d. Factors that the probate court will consider in determining the suitability of the applicant

Factors that the probate court will consider in determining the suitability of the applicant

•relationship of the applicant to the prospective ward e.g. duration and nature

•whether the applicant is a current attorney in fact for the prospective ward

•whether the applicant owes the ward any money•whether the next of kin consented to the appointment

of the applicant •whether there is any potential conflict between the

applicant and the ward•whether the applicant is a resident of the state of Ohio•whether the applicant is the executor of the

administrator of an estate in which the prospective ward is interested *O.R.C. 2111.09 prohibits such an appointment

Contested Hearing1. the probate court will treat the initial hearing as a pretrial

and set a date for the full evidentiary hearing.

2. the probate court can make any necessary interim orders at the pretrial to protect the person or estate of the prospective ward

3. counsel for the applicant should be prepared to substantiate any need for interim orders

Appointment of Physicians or other Experts O.R.C. 2111.031

a. the probate court may appoint independent experts to assist the court in determining the need for a guardianship

b. the prospective ward likewise has the statutory right to request the appointment of an independent expert to contest the applicant's expert O.R.C. 2111.02(C)(7)

Alleged Incompetent’s Rights O.R.C.2111.02(C)(7)• Right to representation by independent counsel• Right to have a friend/ choice of family member present at the hearing• Right to have evidence of an independent expert evaluation introduced• If indigent, upon request: the right to appointed counsel and independent expert evaluation at the court’s expense; right to counsel and transcript upon appeal of the decision at the court’s expense

Court Costs • If a guardian is appointed, the costs are taxed to the ward’s estate, if any

• If a guardian is not appointed, the costs are taxed to the applicant

• The probate court can require the applicant to deposit security for such court costs

FORMS

FORMS REQUIRED TO INITIATE THE PROCESSSPF 17.0 - Application for Appointment of

Guardian for Alleged IncompetentSPF 15.0 – Next of Kin of Proposed Ward SPF 15.01- Judgment Entry Setting Hearing on

Application for Appointment of GuardianSPF 17.1 – Statement of Expert EvaluationSPF 17.3 – Notice to Prospective Ward of

Application and HearingSPF 17.4 – Notice of Hearing for Appointment

of Guardian of Alleged Incompetent Person, or SPF 15.1 Waiver of Notice and Consent

FORMS REQUIRED AT THE GUARDIANSHIP HEARING

SPF 15.2 – Fiduciary’s AcceptanceSPF 15.3 – Guardian’s Bond O.R.C. 2109.04(A)(3)-

See also O.R.C. 2109.12 and 2109.13-do not file bond prior to the appointment in the event that a different applicant is appointed. The Court cannot return the original bond and you will be required to pay a bond premium

SPF 15.9 - Oath of GuardianSPF 17.5 – Judgment Entry Appointment of Guardian

for Incompetent PersonSPF 15.4 – Letters of Guardianship

POST-APPOINTMENT FORMSSPF 15.5 – Guardian’s Inventory must be filed within

90 days of appointment and prior to release or expenditure of funds

SPF 15.6 – Application to Release Funds to Guardian

SPF 15.7 – Application for Authority to Expend Funds

SPF 15.8 – Guardian’s Account-SPF 17.1 Statement of Expert Evaluation- O.R.C. 2111.49, Filed Annually- Loc. Rule 34.1

SPF 17.7 Guardian’s Report- O.R.C. 2111.49, Filed Annually per Local Rule 34.1

COMMON ERRORS COMPLETING FORMS

SPF 17.0 APPLN. FOR APPT. OF GUARDIAN FOR ALLEGED

INCOMPETENT

COMMON ERRORSFailure to properly identify the ward’s legal residenceFailure to properly identify the statutory basis for the

ward’s incompetenceApplying for greater powers of guardianship than

necessaryGeneral failure to read or review the form prior to

signing itFailure to sign the application- applicant or attorney

SPF 15.0 NEXT OF KIN OF PROPOSED WARD

COMMON ERRORSFailure to list the applicant as a next of

kin when in fact a next of kinListing persons who are not next of kin,

e.g. prospective ward’s parents are listed when the prospective ward is married and has children

SPF 17.3 Notice to Prospective Ward of Applicn. and Hearing

COMMON ERRORSFailure to specify the proposed ward’s

current location. The court investigator uses this form to effectuate notice pursuant to Chapter 2111

If the prospective ward is a resident of a nursing home but is being treated in the hospital, list the hospital

FORM 15.3 GUARDIAN’S BOND COMMON ERRORS

Failure to list a bond amountFailure to list a proper bond amount. Like

all fiduciaries, a guardian’s bond is double the value of all personalty, plus yearly rentals

Failure of guardian (principal) to sign the bond

SPF 17.5 Judgment Entry-Appt. Gdn. for Incompetent Person

COMMON ERRORSFailure to cross out term “limited” when

inapplicableFailure to cross out terms “person” or

“estate” when inapplicable

SPF 15.4 LETTERS OF GDNSHP.COMMON ERRORS

Marking the incorrect box for the type of guardianship granted

Marking the incorrect box or no box for the duration of the guardianship-i. Usually indefinite period for

guardianship of incompetentii. Definite period for guardianship of a

minor-to the date of the age of majority

SPF 15.6 Appln. Release FundsCOMMON ERRORS

•Failure to list the names of the institution, last 4 digits of the account number and the balance of the account to be released

•Failure to complete Confidential Disclosure of Personal Identifiers form (SCPC Form 45(D))

• Using the form when seeking authority to expend funds

●Submitting an outdated form

SPF 15.7 Application for Authority to Expend Funds

COMMON ERRORSFailure to clearly specify the type of

expenditure, i,e, what constitutes “living expenses” ?

Failure to specify the amount of the expenditure or to set parameters

Using the form when seeking authority to release funds which are being held in the ward’s name

Sub. House Bill 27 (Effective 3/22/13) –

Adult Guardianship and Protective Proceedings Jurisdiction Act

Subcommittee on Adult Guardianship

•Minimum Standards and Certification Workgroup •Preferred Monitoring Protocols Workgroup•Data Improvement Workgroup

Minimum Standards & Certification WorkgroupProposed Minimum Standards for Guardians address 20 areas

● Applicable Law● Guardian’s Relationship to the Probate Court● Guardian’s Professional Relationship to the Ward● Guardian’s Relationship with Family and Friends of the Ward● Guardian’s Relationship with other Professionals/Providers

Proposed Minimum Standards cont’d

● Guardian’s Decision making● Least Restrictive Alternative● Self-Determination of the Ward● Confidentiality● Duties of the Guardian of the Person● Conflict of Interest: Ancillary and Support Services ● Duties of the Guardian of the Estate● Conflict of Interest in Estate, Financial and Business Services

Proposed Minimum Standards cont’d

● Termination and Limitation of the Guardianship● Guardianship Fees● Management of Multiple Guardianship cases● Quality Assurance● Training● Eligible Guardians Record● Probate Judge as Superior Guardian

Preferred Monitoring Protocols Workgroup

Explore possible funding opportunitiesImplement greater standardization of low/no cost monitoringShare best practicesDevelop checklist for guardiansDevelop bench card

Data Improvement Workgroup

Minimum Data CollectionNumber of filingsDate of birthLiving arrangements Relationship of the guardian to wardType of mental disability of wardType of guardianshipStandard form

Measuring Unmet Need- each county assess future need for guardians

SUMMIT ON AGINGohiosummitonaging.com

• MISSION STATEMENT

TO PROMOTE INTERACTION FOR EFFICIENT SERVICE TO OLDER ADULTS AND THE DISABLED RESIDENTS OF THE COMMUNITY THROUGH COMMUNITY COLLABORATION.

TO ADVOCATE FOR THE EFFICIENT AND EFFECTIVE ALLOCATION OF RESOURCES TO ADDRESS THE NEEDS OF OLDER ADULTS AND DISABLED RESIDENTS OF THE COMMUNITY.

TO PROMOTE THE HIGHEST LEVELS OF COLLABORATION FOR THE GOOD OF OLDER ADULTS, THE DISABLED, THEIR FAMILIES, AND THE COMMUNITY.

 

A multidisciplinary collaboration of Stark County agencies and gov’t offices

What is SMART?

Advocacy and Protective Services, Inc.Area Agency on Aging Aultman HospitalBlick ClinicColeman Professional Services JRCCrisisDomestic Violence ProjectGuardian Support ServicesLaw Enforcement Mercy Medical CenterSocial SecurityStark County Area Administrators Network Stark County Dept of Jobs and Family ServicesStark County Board of Developmental DisabilitiesStark County Health DepartmentStark County Humane SocietyStark County Mental Health and Addiction Services BoardStark County Prosecutor Stark County SheriffStark County CoronerUnited Way