Probate is commonly understood as death administration, plain and simple. This is the process of transferring of wealth from the descendant to the beneficiaries. The other side of that is guardianship and that is what we would call a living probate. This is the process of appointing a representative over somebody who has lost the capacity to manage themselves and/or their finances. This is called guardianship of the person or their assets which is guardianship of the estate. Both living and death probate are performed under the watchful eye of the local probate judge.
When dealing with guardianship of a person, the court will appoint someone who will be officially designated to make medical and personal decisions for the ward. The decision to deem a person incapacitated must be support with medical evidence. Once appointed, the guardian will always be responsible to serve the best interest of the ward, but, the guardian will have the authority to override any decision of the ward. Ultimately, the guardian’s actions will be reviewed by the court.
Many people are unaware that even when deemed incapacitated, the person can make a request and the court will have to appoint an attorney to make sure their interests are being served and protected.
The other form of guardianship is guardianship of the estate. When considering guardianship of an estate, we work with the family to account for every single penny that comes in and goes out. The court will supervise the process. In many instances, the guardian will be required to secure prior authorization before any funds can be expended on the ward. Annual accountings are very common in most courts in Ohio.
Richard A. Myers, Jr. & Associates, LLC stresses the importance of pre-planning for possible disability or death. An example is establishing a proper power of attorney. With the proper documentation, guardianship of the estate and all the accompanying court involvement, including substantial delays, can be avoided.
If you have not pre-planned your estate, anyone can apply to serve as your executor in death probate or as your guardian if you become incapacitated. This can delay distributions to your loved ones at a time it matters the most. Also, without a Will, the court will require the executor to purchase a bond in twice the value of your estate, which ultimately reduces the amount of money going to your loved ones. More importantly, Ohio has established a formal order of beneficiaries in an estate. With a Will, you will be able to specifically identify beneficiaries and amounts a beneficiary will receive.
Guardianships are a judicially supervised process that can be fairly cumbersome. If you have done proper estate planning and have appointment a guardian in your power of attorney, the court will typically appoint them as the guardian. The court is required to determine the person is unfit to appoint someone else. Without a proper appointment of a guardian, the court often appoints a local attorney to serve as the guardian.
Our firm has handled many cases and can take you through this process. If you haven’t done estate planning, Richard A. Myers, Jr. & Associates, LLC can help you and your family through the guardianship process to ensure your needs are met.
While it is a judicially supervised process, it’s likely the individual or family will only have to meet with the courts once. In the case of a guardianship, the appointed guardian is required to take a short course to understand the responsibilities required of them as guardian. In all cases, the court typically brings the individual or family in once to meet them and ensure they understand what they are signing on for and the roles each party will play.
If you need help with Probate and Guardianships, Estate Planning, Medicaid Planning, or Veteran Benefits. Contact us today.