In unfortunate situations, such as when parents die or are unable to act in their children’s best interest, minor children may need to have a legal guardian appointed for them. Ohio law provides for two types of guardianships in such cases: a guardian of the person and a guardian of the estate.
Q: My brother recently died, and his wife died several years ago. What is going to happen to his minor children?
A: The probate court of the county where the children live will appoint a guardian to act in the best interest of your brother’s minor children to act in their best interests. The probate court has exclusive jurisdiction over guardianships in Ohio.
Q: Before he died, my brother named me to be the guardian of his children in his will. What should I do now?
A: You will need to file an application with the probate court of the children’s residential county asking to be appointed as their guardian. The court will review your application at a formal hearing, and if it determines it is in the best interests of the children, then you will be appointed to be the children’s guardian.
Q: Is there more than one type of guardianship?
A: Yes. The probate court can appoint a guardian of the person, a guardian of the estate, or both.
Q: What is a guardian of the person?
A: A guardian of the person protects the "person" and makes decisions for the benefit of the minor children based upon their best interests, such as where they live. The guardian of the person is also responsible for providing suitable care and education for the minor children, taking into consideration the assets held by the guardian of the estate.
Q: What is a guardian of the estate?
A: A guardian of the estate collects and inventories the property that the minor children inherit. All funds the guardian receives must be placed in an Ohio bank. All funds must be invested in a lawful manner and should not be subject to large market fluctuations. Lastly, and most importantly, the guardian must not spend funds on behalf of the minor children without prior court approval.
Q: Can the court appoint one person to be the guardian of the person and another person to be the guardian of the estate?
A: Yes. Your brother could have chosen to appoint one person to become guardian over the persons of his minor children and another person to be named guardian of the minors' estate to manage the children's inheritance. He could also have appointed only one person to serve as both the guardian of the person and the guardian of the estate.
The nomination of a guardian normally is set forth in a will, but it can also be made through a separate document executed in the same manner as a will, or in a power of attorney document. The document must be dated and signed by the individual nominating the guardian. It must also be witnessed by two disinterested parties.
Q: How long will the guardianship last? Does a guardianship of the person last the same length of time as a guardianship of the estate?
A: Both types of guardianships continue until the minor children reach the age of majority, which is 18 years of age in Ohio. However, if a child has a mental or physical disability that requires the guardianship to continue into adulthood, then a new guardianship application must be filed. A minor guardianship cannot be changed into an adult guardianship without a separate court proceeding.
Q: Does the court have to appoint an individual to be a guardian just because that person was named in a will?
A: No. The probatecourt will give priority to a guardian nominated in a document by an individual, but is not required to appoint that named person. The court will look at the facts and circumstances and determine first whether a guardianship is necessary, and second, whether the nominated person is suitable to serve as a guardian. The court will make the final decision about who will serve, but a minor over the age of 14 also may recommend a guardian and ask the court to appoint that person.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was originally prepared by Columbus attorney Jay E. Michael, and updated by attorney Bryan B. Johnson.