Chapter 2111: GUARDIANS; CONSERVATORSHIPS

As used in Chapters 2101. to 2131. of the Revised Code:

(A) “Guardian,” other than a guardian under sections 5905.01 to 5905.19 of the Revised Code, means 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. When applicable, “guardian” includes, but is not limited to, a limited guardian, an interim guardian, a standby guardian, and an emergency guardian appointed pursuant to division (B) of section 2111.02 of the Revised Code. “Guardian” also includes an agency under contract with the department of developmental disabilities for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code when appointed by the probate court to have the care and management of the person of an incompetent.

(B) “Ward” means any person for whom a guardian is acting or for whom the probate court is acting pursuant to section 2111.50 of the Revised Code.

(C) “Resident guardian” means a guardian appointed by a probate court to have the care and management of property in this state that belongs to a nonresident ward.

(D) “Incompetent” means 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 the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide, or any person confined to a correctional institution within this state.

(E) “Next of kin” means any person who would be entitled to inherit from a ward under Chapter 2105. of the Revised Code if the ward dies intestate.

(F) “Conservator” means a conservator appointed by the probate court in an order of conservatorship issued pursuant to section 2111.021 of the Revised Code.

(G) “Parent” means a natural parent or adoptive parent of a minor child whose parental rights and responsibilities have not been terminated by a juvenile court or another court.

Amended by 128th General Assembly ch. 7, SB 79, § 1, eff. 10/6/2009.

Effective Date: 01-14-1997

(A) When found necessary, the probate court on its own motion or on application by any interested party shall appoint, subject to divisions (C) and (D) of this section and to section 2109.21 and division (B) of section 2111.121 of the Revised Code, a guardian of the person, the estate, or both, of a minor or incompetent, provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement in the county and, except in the case of a minor, has had the opportunity to have the assistance of counsel in the proceeding for the appointment of such guardian. An interested party includes, but is not limited to, a person nominated in a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code or in a writing as described in division (A) of section 2111.121 of the Revised Code.

Except when the guardian of an incompetent is an agency under contract with the department of developmental disabilities for the provision of protective services under sections 5123.55 to 5123.59 of the Revised Code, the guardian of an incompetent, by virtue of such appointment, shall be the guardian of the minor children of the guardian’s ward, unless the court appoints some other person as their guardian.

When the primary purpose of the appointment of a guardian is, or was, the collection, disbursement, or administration of moneys awarded by the veterans administration to the ward, or assets derived from such moneys, no court costs shall be charged in the proceeding for the appointment or in any subsequent proceedings made in pursuance of the appointment, unless the value of the estate, including the moneys then due under the veterans administration award, exceeds one thousand five hundred dollars.

(B)(1) If the probate court finds it to be in the best interest of an incompetent or minor, it may appoint pursuant to divisions (A) and (C) of this section, on its own motion or on application by an interested party, a limited guardian with specific limited powers. The sections of the Revised Code, rules, and procedures governing guardianships apply to a limited guardian, except that the order of appointment and letters of authority of a limited guardian shall state the reasons for, and specify the limited powers of, the guardian. The court may appoint a limited guardian for a definite or indefinite period. An incompetent or minor for whom a limited guardian has been appointed retains all of the incompetent’s or minor’s rights in all areas not affected by the court order appointing the limited guardian.

(2) If a guardian appointed pursuant to division (A) of this section is temporarily or permanently removed or resigns, and if the welfare of the ward requires immediate action, at any time after the removal or resignation, the probate court may appoint, ex parte and with or without notice to the ward or interested parties, an interim guardian for a maximum period of fifteen days. If the court appoints the interim guardian ex parte or without notice to the ward, the court, at its first opportunity, shall enter upon its journal with specificity the reason for acting ex parte or without notice, and, as soon as possible, shall serve upon the ward a copy of the order appointing the interim guardian. For good cause shown, after notice to the ward and interested parties and after hearing, the court may extend an interim guardianship for a specified period, but not to exceed an additional thirty days.

(3) If a minor or incompetent has not been placed under a guardianship pursuant to division (A) of this section and if an emergency exists, and if it is reasonably certain that immediate action is required to prevent significant injury to the person or estate of the minor or incompetent, at any time after it receives notice of the emergency, the court, ex parte, may issue any order that it considers necessary to prevent injury to the person or estate of the minor or incompetent, or may appoint an emergency guardian for a maximum period of seventy-two hours. A written copy of any order issued by a court under this division shall be served upon the incompetent or minor as soon as possible after its issuance. Failure to serve such an order after its issuance or prior to the taking of any action under its authority does not invalidate the order or the actions taken. The powers of an emergency guardian shall be specified in the letters of appointment, and shall be limited to those powers that are necessary to prevent injury to the person or estate of the minor or incompetent. If the court acts ex parte or without notice to the minor or incompetent, the court, at its first opportunity, shall enter upon its journal a record of the case and, with specificity, the reason for acting ex parte or without notice. For good cause shown, after notice to the minor or incompetent and interested parties, and after hearing, the court may extend an emergency guardianship for a specified period, but not to exceed an additional thirty days.

(C) Prior to the appointment of a guardian or limited guardian under division (A) or (B)(1) of this section, the court shall conduct a hearing on the matter of the appointment. The hearing shall be conducted in accordance with all of the following:

(1) The proposed guardian or limited guardian shall appear at the hearing and, if appointed, shall swear under oath that the proposed guardian or limited guardian has made and will continue to make diligent efforts to file a true inventory in accordance with section 2111.14 of the Revised Code and find and report all assets belonging to the estate of the ward and that the proposed guardian or limited guardian faithfully and completely will fulfill the other duties of guardian, including the filing of timely and accurate reports and accountings;

(2) If the hearing is conducted by a referee, the procedures set forth in Civil Rule 53 shall be followed;

(3) If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the burden of proving incompetency shall be by clear and convincing evidence;

(4) Upon request of the applicant, the alleged incompetent for whom the appointment is sought or the alleged incompetent’s counsel, or any interested party, a recording or record of the hearing shall be made;

(5) Evidence of a less restrictive alternative to guardianship may be introduced, and when introduced, shall be considered by the court;

(6) The court may deny a guardianship based upon a finding that a less restrictive alternative to guardianship exists;

(7) If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the alleged incompetent has all of the following rights:

(a) The right to be represented by independent counsel of the alleged incompetent’s choice;

(b) The right to have a friend or family member of the alleged incompetent’s choice present;

(c) The right to have evidence of an independent expert evaluation introduced;

(d) If the alleged incompetent is indigent, upon the alleged incompetent’s request:

(i) The right to have counsel and an independent expert evaluator appointed at court expense;

(ii) If the guardianship, limited guardianship, or standby guardianship decision is appealed, the right to have counsel appointed and necessary transcripts for appeal prepared at court expense.

(D)(1) When a person has been nominated to be a guardian of the estate of a minor in or pursuant to a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code or a writing as described in division (A) of section 2111.121 of the Revised Code, the person nominated has preference in appointment over a person selected by the minor. A person who has been nominated to be a guardian of the person of a minor in or pursuant to a durable power of attorney or writing of that nature does not have preference in appointment over a person selected by the minor, but the probate court may appoint the person named in the durable power of attorney or the writing, the person selected by the minor, or another person as guardian of the person of the minor.

(2) A person nominated as a guardian of an incompetent adult child pursuant to section 1337.09 or 2111.121 of the Revised Code shall have preference in appointment over a person applying to be guardian if the person nominated is competent, suitable, and willing to accept the appointment, and if the incompetent adult child does not have a spouse or an adult child and has not designated a guardian prior to the court finding the adult child incompetent.

Amended by 128th General Assembly ch. 7, SB 79, § 1, eff. 10/6/2009.

Effective Date: 01-14-1997; 2008 SB157 05-14-2008

A competent adult who is physically infirm may petition the probate court of the county in which he resides, to place, for a definite or indefinite period of time, his person, any or all of his real or personal property, or both under a conservatorship with the court. A petitioner either may grant specific powers to the conservator or court or may limit any powers granted by law to the conservator or court, except that the petitioner may not limit the powers granted to the court by this section and may not limit the requirement for bond as determined by the court. The petition shall state whether the person of the competent adult will be placed under the conservatorship, shall state with particularity all real and personal property that will be placed under the conservatorship, shall state the powers granted and any limitation upon the powers of the conservator or court, and shall state the name of a proposed suitable conservator.

After a hearing, if the court finds that the petition was voluntarily filed and that the proposed conservator is suitable, the court shall issue an order of conservatorship. Upon issuance of the order, all sections of the Revised Code governing a guardianship of the person, the estate, or both, whichever is involved, except those sections the application of which specifically is limited by the petitioner, and all rules and procedures governing such a guardianship, shall apply to the conservatorship, including, but not limited to, applicable bond and accounting requirements.

A conservatorship shall terminate upon a judicial determination of incompetency, the death of the petitioner, the order of the probate court, or the execution of a written termination notice by the petitioner. A termination notice shall take effect upon execution by the petitioner, and shall be filed with the court and served upon the conservator. A termination notice executed by a petitioner relative to a conservatorship of the estate and the termination of a conservatorship of the estate based upon a termination notice are void unless the termination notice is filed with the court within fourteen days after its execution. Modification of the powers of a conservator or the court may be made by the petitioner upon motion to the court at any time during the conservatorship. Neither the establishment of a conservatorship nor the filing of a petition for conservatorship with the probate court shall be considered as evidence of mental impairment under section 2111.01 of the Revised Code.

Upon motion to the probate court and a showing of good cause, the court may make confidential, or remove from confidential status, any file, record, petition, motion, account, or paper, except for an index, docket, or journal, that pertains to a conservatorship and that is in the possession of the court.

Effective Date: 01-01-1990

A person applying for appointment as a guardian, including, but not limited to, as a limited guardian, pursuant to section 2111.02 of the Revised Code, shall file with the probate court an application that contains a statement of the whole estate of the ward, its probable value, and the probable annual rents of the ward’s real property, and that also contains the following:

(A) A statement whether the applicant ever has been charged with or convicted of any crime involving theft, physical violence, or sexual, alcohol, or substance abuse, and, if the applicant has been so charged or convicted, the date and place of each charge and each conviction;

(B) A statement whether a limited guardianship is sought and, if sought, a specification of the limited powers that are requested and a statement whether the limited guardianship is to be for a definite or indefinite period;

(C) In the case of an application for the appointment of a guardian of a minor, all of the following:

(1) Name, age, and residence of the minor;

(2) Name and residence of each parent of the minor;

(3) Name, degree of kinship, age, and address of next of kin of the minor, if no parent is living or if a parent of the minor is absent, under disability, or for other reason cannot be notified;

(4) Name and residence address of the person having custody of the minor.

(D) In the case of an application for the appointment of a guardian of an alleged incompetent, all of the following:

(1) Name, age, and residence of the person for whom such appointment is sought;

(2) Facts upon which the application is based;

(3) Name, degree of kinship, age, and address of the next of kin of the alleged incompetent.

The court, on its own motion, shall proceed as provided in this chapter, upon suggestion by the bureau of workers’ compensation that any person who has made application for or been awarded compensation or death benefits as an employee or the dependent of a killed employee is a minor or incompetent. In that case, no application need be filed and the bureau shall furnish the court with the name and residence of such person and the name, degree of kinship, age, and address of the father, mother, or next of kin of such person insofar as known by the bureau.

Effective Date: 10-08-1992

In connection with an application for the appointment of a guardian for an alleged incompetent, the court may appoint physicians and other qualified persons to examine, investigate, or represent the alleged incompetent, to assist the court in deciding whether a guardianship is necessary. If the person is determined to be an incompetent and a guardian is appointed for him, the costs, fees, or expenses incurred to so assist the court shall be charged either against the estate of the person or against the applicant, unless the court determines, for good cause shown, that the costs, fees, or expenses are to be recovered from the county, in which case they shall be charged against the county. If the person is not determined to be an incompetent or a guardian is not appointed for him, the costs, fees, or expenses incurred to so assist the court shall be charged against the applicant, unless the court determines, for good cause shown, that the costs, fees, or expenses are to be recovered from the county, in which case they shall be charged against the county.

A court may require the applicant to make an advance deposit of an amount that the court determines is necessary to defray the anticipated costs of examinations of an alleged incompetent and to cover fees or expenses to be incurred to assist it in deciding whether a guardianship is necessary.

This section does not affect or apply to the duties of a probate court investigator under sections 2111.04 and 2111.041 of the Revised Code.

Effective Date: 01-01-1990

(A) Except for an interim or emergency guardian appointed under division (B)(2) or (3) of section 2111.02 of the Revised Code, no guardian of the person, the estate, or both shall be appointed until at least seven days after the probate court has caused written notice, setting forth the time and place of the hearing, to be served as follows:

(1) In the appointment of the guardian of a minor, notice shall be served:

(a) Upon the minor, if over the age of fourteen, by personal service;

(b) Upon each parent of the minor whose name and address is known or with reasonable diligence can be ascertained, provided the parent is free from disability other than minority;

(c) Upon the next of kin of the minor who are known to reside in this state, if there is no living parent, the name and address of the parent cannot be ascertained, or the parent is under disability other than minority;

(d) Upon the person having the custody of the minor.

(2) In the appointment of the guardian of an incompetent, notice shall be served:

(a)(i) Upon the person for whom appointment is sought by personal service by a probate court investigator, or in the manner provided in division (A)(2)(a)(ii) of this section. The notice shall be in boldface type and shall inform the alleged incompetent, in boldface type, of his rights to be present at the hearing, to contest any application for the appointment of a guardian for his person, estate, or both, and to be represented by an attorney and of all of the rights set forth in division (C)(7) of section 2111.02 of the Revised Code.

(ii) If the person for whom appointment is sought is a resident of, or has a legal settlement in, the county in which the court has jurisdiction, but is absent from that county, the probate court may designate, by order, a temporary probate court investigator, in lieu of a regular probate court investigator appointed or designated under section 2101.11 of the Revised Code, to make the personal service of the notice described in division (A)(2)(a)(i) of this section upon the person for whom appointment is sought.

(b) Upon the next of kin of the person for whom appointment is sought who are known to reside in this state.

(B) After service of notice in accordance with division (A) of this section and for good cause shown, the court may appoint a guardian prior to the time limitation specified in that division.

(C) Notice may not be waived by the person for whom the appointment is sought.

(D) From the service of notice until the hearing, no sale, gift, conveyance, or encumbrance of the property of an alleged incompetent shall be valid as to persons having notice of the proceeding.

Effective Date: 01-01-1990

(A) At the time of the service of notice upon an alleged incompetent, as required by division (A)(2)(a) of section 2111.04 of the Revised Code, the court shall require a regular probate court investigator appointed or designated under section 2101.11 of the Revised Code or appoint a temporary probate court investigator to investigate the circumstances of the alleged incompetent, and, to the maximum extent feasible, to communicate to the alleged incompetent in a language or method of communication that he can understand, his rights as specified in that division, and subsequently to file with the court a report that contains all of the following:

(1) A statement indicating that the notice was served and describing the extent to which the alleged incompetent’s rights to be present at the hearing, to contest any application for the appointment of a guardian for his person, estate, or both, and to be represented by an attorney were communicated to him in a language or method of communication understandable to the alleged incompetent;

(2) A brief description, as observed by the investigator, of the physical and mental condition of the alleged incompetent;

(3) A recommendation regarding the necessity for a guardianship or a less restrictive alternative;

(4) A recommendation regarding the necessity of appointing pursuant to section 2111.031 of the Revised Code, an attorney to represent the alleged incompetent.

(B) The report that is required by division (A) of this section shall be made a part of the record in the case and shall be considered by the court prior to establishing any guardianship for the alleged incompetent.

Effective Date: 01-01-1990

(A) In connection with the appointment of a guardian for a minor or the functioning of the guardianship of a minor, the court may appoint a regular probate court investigator appointed or designated under section 2101.11 of the Revised Code or appoint a temporary probate court investigator to investigate the need for, or the circumstances of, the guardianship and to file with the court a report that contains all of the following:

(1) A brief description, as observed by the investigator, of the physical and mental condition of the minor;

(2) If a guardian already has been appointed, a brief description, as observed by the investigator, of the circumstances and functioning of the guardianship;

(3) If no guardian has been appointed, a brief recommendation regarding the necessity for a guardianship.

(B) The report that is required pursuant to division (A) of this section shall be made part of the record in the case and shall be considered by the court prior to establishing any guardianship for the minor, if no guardianship has been established, and prior to making any change in the guardianship or the functioning of the guardianship, if a guardian already has been appointed.

Effective Date: 11-09-1994

When the whole estate of a ward, or of several wards jointly, under the same guardianship, does not exceed ten thousand dollars in value, the guardian may apply to the probate court for an order to terminate the guardianship. Upon proof that it would be for the best interest of the ward to terminate the guardianship, the court may order the guardianship terminated, and direct the guardian, if the ward is a minor, to deposit the assets of the guardianship in a depository authorized to receive fiduciary funds, payable to the ward when he attains majority, or the court may authorize the delivery of the assets to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director of children services in the county, or to the minor himself.

If the ward is an incompetent, and the court orders the guardianship terminated, the court may authorize the deposit of the assets of the guardianship in a depository authorized to receive fiduciary funds in the name of a suitable person to be designated by the court, or if the assets do not consist of money, the court may authorize delivery to a suitable person to be designated by the court. The person receiving the assets shall hold and dispose of them in the manner the court directs.

If the court refuses to grant the application to terminate the guardianship, or if no such application is presented to the court, the guardian only shall be required to render account upon the termination of his guardianship, upon order of the probate court made upon its own motion, or upon the order of the court made on the motion of a person interested in the wards or their property, for good cause shown, and set forth upon the journal of the court.

If the estate is ten thousand dollars or less and the ward is a minor, the court, without the appointment of a guardian by the court, or the giving of bond, may authorize the deposit in a depository authorized to receive fiduciary funds, payable to the guardian when appointed, or to the ward when he attains majority, or the court may authorize delivery to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director who is responsible for the administration of children services in the county, or to the minor himself.

If the whole estate of a person over eighteen years of age, who has been adjudged mentally ill or mentally retarded, does not exceed ten thousand dollars in value, the court, without the appointment of a guardian by the court or the giving of bond, may authorize the deposit of the estate in a depository authorized to receive fiduciary funds in the name of a suitable person to be designated by the court, or if the assets do not consist of money, the court may authorize delivery to a suitable person to be designated by the court. The person receiving the assets shall hold and dispose of them in the manner the court directs.

Effective Date: 09-10-1991

This section is set out twice. See also § 2111.05, as amended by 128th General Assembly File No. 13, SB 106, § 1, eff. 3/23/2010.

2111.05 [Effective 3/23/2010] Estates not more than ten thousand dollars – termination of guardianship

When the whole estate of a ward does not exceed twenty-five thousand dollars in value, the guardian may apply to the probate court for an order to terminate the guardianship. Upon proof that it would be for the best interest of the ward to terminate the guardianship, the court may order the guardianship terminated, and direct the guardian, if the ward is a minor, to deposit the assets of the guardianship in a depository authorized to receive fiduciary funds, payable to the ward when the ward attains majority, or the court may authorize the delivery of the assets to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director of children services in the county, or to the minor’s own self.

If the ward is an incompetent, and the court orders the guardianship terminated, the court may authorize the deposit of the assets of the guardianship in a depository authorized to receive fiduciary funds in the name of a suitable person to be designated by the court, or if the assets do not consist of money, the court may authorize delivery to a suitable person to be designated by the court. The person receiving the assets shall hold and dispose of them in the manner the court directs.

If the court refuses to grant the application to terminate the guardianship, or if no such application is presented to the court, the guardian only shall be required to render account upon the termination of the guardianship, upon order of the probate court made upon its own motion, or upon the order of the court made on the motion of a person interested in the wards or their property, for good cause shown, and set forth upon the journal of the court.

If the estate is twenty-five thousand dollars or less and the ward is a minor, the court, without the appointment of a guardian by the court, or the giving of bond, may authorize the deposit in a depository authorized to receive fiduciary funds, payable to the guardian when appointed, or to the ward when the ward attains majority, or the court may authorize delivery to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director who is responsible for the administration of children services in the county, or to the minor’s own self.

If the whole estate of a person over eighteen years of age, who has been adjudged incompetent, does not exceed twenty-five thousand dollars in value, the court, without the appointment of a guardian by the court or the giving of bond, may authorize the deposit of the estate in a depository authorized to receive fiduciary funds in the name of a suitable person to be designated by the court, or if the assets do not consist of money, the court may authorize delivery to a suitable person to be designated by the court. The person receiving the assets shall hold and dispose of them in the manner the court directs.

Amended by 128th General Assembly File No. 13, SB 106, § 1, eff. 3/23/2010.

Effective Date: 09-10-1991

This section is set out twice. See also § 2111.05, effective until 3/23/2010.

If the powers of the person appointed as guardian of a minor or incompetent are not limited by the order of appointment, such person shall be guardian both of the person and estate of the ward. In every instance the court shall appoint the same person as guardian of the person and estate of any such ward, unless in the opinion of the court the interests of the ward will be promoted by the appointment of different persons as guardians of the person and of the estate.

A guardian of the person of a minor shall be appointed as to a minor having neither father nor mother, or whose parents are unsuitable persons to have the custody and tuition of such minor, or whose interests, in the opinion of the court, will be promoted thereby. A guardian of the person shall have the custody and provide for the maintenance of the ward, and if the ward is a minor, such guardian shall also provide for the education of such ward.

Before exercising its jurisdiction to appoint a guardian of a minor, the court shall comply with the jurisdictional standards of sections 3127.01 to 3127.53 of the Revised Code.

Effective Date: 10-25-1977; 04-11-2005

Each person appointed guardian of the person and estate of a minor shall have the custody and tuition of his ward and the management of such ward’s estate during minority, unless such guardian is removed or discharged from such trust or the guardianship terminates from any of the causes specified in Chapters 2101. to 2131., inclusive, of the Revised Code.

Effective Date: 10-01-1953

The wife and husband are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare, and education and the care and management of their estates. The wife and husband have equal powers, rights, and duties and neither parent has any right paramount to the right of the other concerning the parental rights and responsibilities for the care of the minor or the right to be the residential parent and legal custodian of the minor, the control of the services or the earnings of such minor, or any other matter affecting the minor; provided that if either parent, to the exclusion of the other, is maintaining and supporting the child, that parent shall have the paramount right to control the services and earnings of the child. Neither parent shall forcibly take a child from the guardianship of the parent who is the residential parent and legal custodian of the child.

If the wife and husband live apart, the court may award the guardianship of a minor to either parent, and the state in which the parent who is the residential parent and legal custodian or who otherwise has the lawful custody of the minor resides has jurisdiction to determine questions concerning the minor’s guardianship.

Effective Date: 04-11-1991

Unless expressly appointed or designated to act both as guardian and executor by a last will in writing, no person who is or has been an administrator or executor of a last will shall, prior to the approval of his final account as such executor or administrator, be appointed a guardian of the person and estate or of the estate only of a ward who is interested in the estate administered upon or entitled to an interest under such will, except that a surviving spouse may be executor or administrator of the deceased spouse’s estate and also guardian of the person and estate or of the estate only of a minor child of such surviving spouse, whether or not such minor child is interested in the estate of the deceased spouse. But an executor or an administrator may be appointed a guardian of the person only of a ward.

Effective Date: 09-04-1957

No attorney who represents any person other than himself who is appointed as a guardian under this chapter or under any other provision of the Revised Code shall do either of the following:

(A) Act as a person with co-responsibility for any guardianship asset for which the guardian he represents is responsible;

(B) Be a cosignatory on any financial account related to the guardianship, including any checking account, savings account, or other banking or trust account.

Effective Date: 03-06-1992

As used in this section, “mentally retarded person” and “developmentally disabled person” have the same meanings as in section 5123.01 of the Revised Code.

Any appointment of a corporation as guardian shall apply to the estate only and not to the person, except that a nonprofit corporation organized under the laws of this state and entitled to tax exempt status under section 501(a) of the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C.A. 501, as amended, that has a contract with the department of developmental disabilities to provide protective services may be appointed as a guardian of the person of a mentally retarded or developmentally disabled person and may serve as guardian pursuant to sections 5123.55 to 5123.59 of the Revised Code.

Amended by 128th General Assembly ch. 7, SB 79, § 1, eff. 10/6/2009.

Effective Date: 07-01-1991

When a guardian is appointed for a person having a spouse, the court may appoint such spouse as the guardian, if it is made to appear to the satisfaction of the court that such spouse is competent to discharge the duties of such appointment.

Effective Date: 10-01-1953

(A) A minor over the age of fourteen years may select a guardian who shall be appointed if a suitable person. If such minor fails to select a suitable person, an appointment may be made without reference to the minor’s wishes. The minor shall not select one person to be the guardian of the minor’s estate only and another to be the guardian of the person only, unless the court which appoints is of the opinion that the interests of such minor will thereby be promoted.

(B) A surviving parent by last will in writing may appoint a guardian for any of the surviving parent’s children, whether born at the time of making the will or afterward, to continue during the minority of the child or for a less time.

When the father or mother of a minor names a person as guardian of the estate of such minor in a will, the person named shall have preference in appointment over the person selected by such minor. A person named in such a will as guardian of the person of such minor shall have no preference in appointment over the person selected by such minor, but in such event the probate court may appoint the person named in the will, the person selected by the minor, or some other person.

Whenever a testamentary guardian is appointed, the testamentary guardian’s duties, powers, and liabilities in all other respects shall be governed by the law regulating guardians not appointed by will.

(C) A parent pursuant to a durable power of attorney as described in division (D) of section 1337.09 or a writing as described in division (A) of section 2111.121 of the Revised Code may nominate a person to be a guardian for one or more of the parent’s minor children, whether born at the time of the making of the petition or afterward.

Effective Date: 01-14-1997

(A) A person may nominate in a writing, as described in this division, another person to be the guardian of the nominator’s person, estate, or both or the guardian of the person, the estate, or both, of one or more of the nominator’s minor or incompetent adult children, whether born at the time of the execution of the writing or afterward, subject to notice and a hearing pursuant to section 2111.02 of the Revised Code. The nomination is for consideration by a court if proceedings for the appointment of a guardian of the person, the estate, or both, for the person making the nomination or if proceedings for the appointment of a guardian as the guardian of the person, the estate, or both of one or more of the nominator’s minor or incompetent adult children are commenced at a later time. The person may authorize, in a writing of that nature, the person nominated as guardian to nominate a successor guardian for consideration by a court. The person also may direct, in a writing of that nature, that bond be waived for a person nominated as guardian in it or nominated as a successor guardian in accordance with an authorization in it.

To be effective as a nomination, the writing shall be signed by the person making the nomination in the presence of two witnesses; signed by the witnesses; contain, immediately prior to their signatures, an attestation of the witnesses that the person making the nomination signed the writing in their presence; and be acknowledged by the person making the nomination before a notary public.

(B) If a person has nominated, in a writing as described in division (A) of this section or in a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code, another person to be the guardian of the nominator’s person, estate, or both, and proceedings for the appointment of a guardian for the person are commenced at a later time, the court involved shall appoint the person nominated as guardian in the writing or durable power of attorney most recently executed if the person nominated is competent, suitable, and willing to accept the appointment. If the writing or durable power of attorney contains a waiver of bond, the court shall waive bond of the person nominated as guardian unless it is of the opinion that the interest of the trust demands it.

(C) Nomination of a person as a guardian or successor guardian of the person, the estate, or both of one or more of the nominator’s minor or incompetent adult children under division (A) of this section, and any subsequent appointment of the guardian or successor guardian as guardian under section 2111.02 of the Revised Code, does not vacate the jurisdiction of any other court that previously may have exercised jurisdiction over the person of the minor or incompetent adult child.

(D) The writing containing the nomination of a person to be the guardian of the person, the estate, or both of one or more of the nominator’s minor or incompetent adult children under division (A) of this section may be filed with the probate court for safekeeping, and the probate court shall designate the nomination as the nomination of a standby guardian.

Effective Date: 01-14-1997; 2008 SB157 05-14-2008

(A) When a guardian is appointed to have the custody and maintenance of a ward, and to have charge of the education of the ward if the ward is a minor, the guardian’s duties are as follows:

(1) To protect and control the person of the ward;

(2) To provide suitable maintenance for the ward when necessary, which shall be paid out of the estate of such ward upon the order of the guardian of the person;

(3) To provide such maintenance and education for such ward as the amount of the ward’s estate justifies when the ward is a minor and has no father or mother, or has a father or mother who fails to maintain or educate the ward, which shall be paid out of such ward’s estate upon the order of the guardian of the person;

(4) To obey all the orders and judgments of the probate court touching the guardianship.

(B) Except as provided in section 2111.131 of the Revised Code, no part of the ward’s estate shall be used for the support, maintenance, or education of such ward unless ordered and approved by the court.

(C) A guardian of the person may authorize or approve the provision to the ward of medical, health, or other professional care, counsel, treatment, or services unless the ward or an interested party files objections with the probate court, or the court, by rule or order, provides otherwise.

(D) Unless a person with the right of disposition for a ward under section 2108.70 or 2108.81 of the Revised Code has made a decision regarding whether or not consent to an autopsy or post-mortem examination on the body of the deceased ward under section 2108.50 of the Revised Code shall be given, a guardian of the person of a ward who has died may consent to the autopsy or post-mortem examination .

(E) If a deceased ward did not have a guardian of the estate , the estate is not required to be administered by a probate court, and a person with the right of disposition for a ward, as described in section 2108.70 or 2108.81 of the Revised Code, has not made a decision regarding the disposition of the ward’s body or remains, the guardian of the person of the ward may authorize the burial or cremation of the ward.

(F) A guardian who gives consent or authorization as described in divisions (D) and (E) of this section shall notify the probate court as soon as possible after giving the consent or authorization.

Effective Date: 09-22-2000; 10-12-2006

(A) The probate court may enter an order that authorizes a person under a duty to pay or deliver money or personal property to a minor who does not have a guardian of the person and estate or a guardian of the estate, to perform that duty in amounts not exceeding five thousand dollars annually, by paying or delivering the money or property to any of the following:

(1) The guardian of the person only of the minor;

(2) The minor’s natural guardians, if any, as determined pursuant to section 2111.08 of the Revised Code;

(3) The minor’s own self;

(4) Any person who has the care and custody of the minor and with whom the minor resides, other than a guardian of the person only or a natural guardian;

(5) A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor;

(6) A custodian designated by the court in its order, for the minor under sections 5814.01 to 5814.09 of the Revised Code.

(B) An order entered pursuant to division (A) of this section authorizes the person or entity specified in it, to receive the money or personal property on behalf of the minor from the person under the duty to pay or deliver it, in amounts not exceeding five thousand dollars annually. Money or personal property so received by guardians of the person only, natural guardians, and custodians as described in division (A)(4) of this section may be used by them only for the support, maintenance, or education of the minor involved. The order of the court is prima-facie evidence that a guardian of the person only, a natural guardian, or a custodian as described in division (A)(4) of this section has the authority to use the money or personal property received.

(C) A person who pays or delivers moneys or personal property in accordance with a court order entered pursuant to division (A) of this section is not responsible for the proper application of the moneys or property by the recipient.

Effective Date: 10-04-1984; 01-01-2007

In addition to his other duties, every guardian appointed to take care of the estate of a ward shall have the following duties:

(A) To make and file within three months after his appointment a full inventory of the real and personal property of the ward, its value, and the value of the yearly rent of the real property, provided that, if the guardian fails to file the inventory for thirty days after he has been notified of the expiration of the time by the probate judge, the judge shall remove him and appoint a successor;

(B) To manage the estate for the best interest of the ward;

(C) To pay all just debts due from the ward out of the estate in his hands, collect all debts due to the ward, compound doubtful debts, and appear for and defend, or cause to be defended, all suits against the ward;

(D) To obey all orders and judgments of the courts touching the guardianship;

(E) To bring suit for the ward when a suit is in the best interests of the ward;

(F) To settle and adjust, when necessary or desirable, the assets that he may receive in kind from an executor or administrator to the greatest advantage of the ward. Before a settlement and adjustment is valid and binding, it shall be approved by the probate court and the approval shall be entered on its journal. The guardian also shall have the approval of the probate court to hold the assets as received from the executor or administrator or to hold what may be received in the settlement and adjustment of those assets.

No guardian appointed to take care of the estate of a ward may open a safety deposit box held in the name of the ward, until the contents of the box have been audited by an employee of the county auditor in the presence of the guardian and until a verified report of the audit has been filed by the auditor with the probate court, which then shall issue a release to the guardian permitting the guardian to have access to the safety deposit box of the ward.

Effective Date: 10-08-1992

The court, by order or rule, may require that any inventory filed by a guardian pursuant to section 2111.14 of the Revised Code be supported by evidence that the inventory is a true and accurate inventory of the estate of the ward of the guardian, which evidence may include, but is not limited to, prior income tax returns, bank statements, and social security records of the ward or other documents that are relevant to determining the accuracy of the inventory. In order to verify the accuracy of an inventory, the court may order a guardian to produce any additional evidence that may tend to prove that the guardian is in possession of or has knowledge of assets that belong to the estate of his ward and that have not been included in the guardianship inventory, which evidence may include, but is not limited to, the guardian’s income tax returns and bank statements and any other documents that are relevant to determining the accuracy of an inventory. The court may assign court employees or appoint an examiner to verify an inventory filed by a guardian. Upon appointment, the assigned court employees or appointed examiner shall conduct an investigation to verify the accuracy of the inventory filed by the guardian. Upon order of the court, the assigned court employees or appointed examiner may subpoena any documents necessary for his investigation. Upon completion of the investigation, the assigned court employees or appointed examiner shall file a report with the court. The court shall hold a hearing on the report with notice to all interested parties. At the hearing, the guardian shall have the right to examine and cross-examine any assigned court employees or appointed examiner who conducted the investigation and filed the report that is the subject of the hearing. The court shall charge any costs associated with the verification of an inventory filed by a guardian against the estate of the ward, except that, if the court determines that the guardian wrongfully withheld, or aided in the wrongful withholding, of assets from the inventory filed by the guardian, the court shall charge the costs against the guardian.

Effective Date: 01-01-1990

When a person is appointed to have custody of the person and to take charge of the estate of a ward, such person shall have all the duties required of a guardian of the estate and of a guardian of the person.

Effective Date: 10-01-1953

(A) If a guardian of the estate, a guardian of the person and estate, a guardian of the person, or a conservator enters into a contract in the representative capacity of the guardian or conservator, if the contract is within the authority of the guardian or conservator, and if the guardian or conservator discloses in the contract that it is being entered into in the representative capacity of the guardian or conservator, the guardian or conservator is not personally liable on the contract, unless the contract otherwise specifies. If the words “guardian,” “as guardian,” “conservator,” “as conservator,” or any other word or words indicating representative capacity as a guardian of the estate, a guardian of the person and estate, a guardian of the person, or a conservator are included in a contract following the name or signature of the guardian or conservator, the inclusion is sufficient disclosure for purposes of this division that the contract is being entered into in the guardian’s representative capacity as guardian of the estate, guardian of the person and the estate, or guardian of the person or is being entered into in the conservator’s representative capacity as conservator.

(B) A guardian of the estate, a guardian of the person and estate, a guardian of the person, or a conservator is not personally liable for any debt of the ward or, in the case of a conservator, the physically infirm, competent adult, unless one or more of the following applies:

(1) The guardian or conservator agrees to be personally responsible for the debt.

(2) The debt was incurred for the support of the ward or the physically infirm, competent adult, and the guardian or conservator is liable for that debt because of another legal relationship that gives rise to or results in a duty of support relative to the ward or the physically infirm, competent adult.

(3) The negligence of the guardian or conservator gave rise to or resulted in the debt.

(4) An act of the guardian or conservator that was beyond the guardian’s or conservator’s authority gave rise to or resulted in the debt.

Effective Date: 10-01-1996

Unless previously authorized by the court, no voucher shall be received from or allowed as a credit in the settlement of a guardian’s account which is signed or purports to be signed by his ward.

Effective Date: 09-04-1957

A guardian may sue in his own name, describing himself as guardian of the ward for whom he sues. When his guardianship ceases, actions or proceedings then pending shall not abate, if the right survives. His successor as guardian, the executor or administrator of the ward, or the ward himself, if the guardianship has terminated other than by the ward’s death, shall be made party to the suit or other proceeding as the case requires, in the same manner as executor or administrator is made a party to a similar suit or proceeding where the plaintiff dies during its pendency.

Effective Date: 10-01-1953

When personal injury, damage to tangible or intangible property, or damage or loss on account of personal injury or damage to tangible or intangible property is caused to a ward by wrongful act, neglect, or default that would entitle the ward to maintain an action and recover damages for the injury, damage, or loss, and when any ward is entitled to maintain an action for damages or any other relief based on any claim or is subject to any claim to recover damages or any other relief based on any claim, the guardian of the estate of the ward may adjust and settle the claim with the advice, approval, and consent of the probate court. In the settlement, if the ward is a minor, the parent or parents may waive all claim for damages on account of loss of service of the minor, and that claim may be included in the settlement. However, when it is proposed that the claim involved be settled for ten thousand dollars or less, the court, upon application by any person whom the court may authorize to receive and receipt for the settlement, may authorize the settlement without the appointment of a guardian and authorize the delivery of the moneys to the natural guardian of the minor, to the person by whom the minor is maintained, or to the minor himself. The court may authorize the minor or person receiving the moneys to execute a complete release on account of the receipt. The payment shall be a complete and final discharge of any such claim.

Effective Date: 05-31-1990

This section is set out twice. See also § 2111.18, as amended by 128th General Assembly File No. 13, SB 106, § 1, eff. 3/23/2010.

2111.18 [Effective 3/23/2010] Claim for injury to ward or damage to property – settlement

If personal injury, damage to tangible or intangible property, or damage or loss on account of personal injury or damage to tangible or intangible property is caused to a ward by wrongful act, neglect, or default that would entitle the ward to maintain an action and recover damages for the injury, damage, or loss, and when any ward is entitled to maintain an action for damages or any other relief based on any claim or is subject to any claim to recover damages or any other relief based on any claim, the guardian of the estate of the ward may adjust and settle the claim with the advice, approval, and consent of the probate court. If it is proposed that a claim be settled for the net amount of twenty-five thousand dollars or less after payment of fees and expenses as allowed by the court, the court, upon application by any suitable person whom the court may authorize to receive and receipt for the settlement, may authorize the settlement without the appointment of a guardian and authorize the delivery of the moneys as provided in section 2111.05 of the Revised Code. The court may authorize the person receiving the moneys to execute a complete release on account of the receipt. The payment shall be a complete and final discharge of that claim. In the settlement, if the ward is a minor, the parent or parents of the minor may waive all claim for damages on account of loss of service of the minor, and that claim may be included in the settlement.

Amended by 128th General Assembly File No. 13, SB 106, § 1, eff. 3/23/2010.

Effective Date: 05-31-1990

This section is set out twice. See also § 2111.18, effective until 3/23/2010.

When personal injury, damage to tangible or intangible property, or damage or loss on account of personal injury or damage to tangible or intangible property is caused to a minor, who claims to be emancipated, by wrongful act, neglect, or default which would entitle the minor to maintain an action and recover damages for the injury, damage, or loss, and when any minor who claims to be emancipated is entitled to maintain an action for damages or any other relief based on any claim, or is subject to any claim to recover damages or any other relief based on any claim, the minor, who claims to be emancipated, may file an application in the probate court in the county where he then resides, praying for a finding by the court that the minor is in fact emancipated, and authorizing, approving, and consenting to the settlement of the claim by the minor without the appointment of a guardian. Upon hearing on the application, after five days’ written notice of the time and place of the hearing has been given to each of the living parents of the minor, whose name and address is known, provided the parent is free from disability other than minority, or, if there is no living parent, after such notice to the next of kin of the minor known to reside in the county, the court may find the minor to be emancipated and may authorize, approve, and consent to the settlement of the claim by the minor without the appointment of a guardian and may authorize the minor to receive and receipt for the settlement and, upon the minor executing and delivering a full and complete release for the injuries, damages, losses, or claims, may authorize the delivery and payment of such moneys to the minor, to a trustee or guardian of the estate of the minor appointed by the court for the benefit of the minor, or to a depository authorized to receive fiduciary funds to hold the moneys payable to the ward when he attains majority, or for the benefit of the minor, as the court may direct.

Upon the finding of the probate court that the minor was, at the time of the injury damage, loss, or claim, an emancipated minor, and provided the notice required by this section has been given to each living parent, whose name and address is known, then the release executed by the emancipated minor shall be a full and complete discharge and release of any claim which either or both of the parents might have by reason of the personal injury, damage to tangible or intangible property, damage or loss on account of personal injury, or damage to tangible or intangible property, or any other claim of the minor.

Effective Date: 05-31-1990

A guardian, whether appointed by a court in this state or elsewhere, may complete the contracts of his ward for the purchase or sale of real estate or any authorized contract relating to real estate entered into by a guardian who has died or been removed. Said guardian shall proceed in the manner provided by sections 2113.48 to 2113.50, inclusive, of the Revised Code.

Effective Date: 10-05-1961

The guardian of the person and estate, or of the estate only, may sell all or any part of the personal estate of the ward when such sale is for the interest of the ward.

Effective Date: 10-01-1953

The guardian of a ward who has or is claimed to have a right of dower, or a contingent right to it, in lands or tenements of which the spouse of such ward was or is seized as an estate of inheritance, where the dower has not been assigned, may sell, compromise, or adjust such dower or may release such contingent right of dower in the event the spouse of such ward desires to mortgage such property upon such terms as such guardian deems for the interest of such ward and upon such terms as the probate court of the county in which the guardian was appointed approves, or if such guardian was appointed in a foreign state, upon such terms as the probate court of the county wherein the land is situated approves. After such approval, the guardian may execute and deliver all the necessary deeds, mortgages, releases, and agreements for the sale, compromise, assignment, or mortgage of such dower or contingent right to dower. As a basis for computing the value of an inchoate dower right in any sale, compromise, or adjustment pursuant to this section, the value of the lands or tenements may be considered to be the sale price or, if there is no sale, the appraised value. Such sale, compromise, adjustment, or mortgage may be made upon application and entry in the pending proceedings.

Effective Date: 10-01-1953

When a ward has title to real estate by tax title only, the guardian, by deed of release and quitclaim, may convey such ward’s interest or title to the person entitled to redeem such real estate, upon receiving from such person the amount paid for such tax title with the forfeiture and interest allowed by sections 319.52 and 323.121 of the Revised Code. If the guardian tenders such deed to the person entitled to redeem such real estate and he refuses to accept and pay for it, he shall not recover costs in any proceeding thereafter instituted to redeem such real estate.

Effective Date: 09-21-1982

Whenever a ward, for whom a guardian of the estate or of the person and estate has been appointed, is interested in any suit or proceeding in the probate court, such guardian shall in all such suits or proceedings act as guardian ad litem for such ward, except as to suits or proceedings in which the guardian has an adverse interest. Whenever a minor or other person under legal disability, for whom no guardian of the estate or of the person and estate has been appointed, is interested in any suit or proceeding in such court, the court may appoint a guardian or a guardian ad litem. In a suit or proceeding in which the guardian has an adverse interest, the court shall appoint a guardian ad litem to represent such minor or other person under legal disability.

Effective Date: 10-16-1953

If the probate court finds that the estate of a ward is insolvent or will probably be insolvent, such estate shall be settled by the guardian in like manner as for the settlement of the insolvent estate of a deceased person under section 2117.15 of the Revised Code.

Effective Date: 10-01-1953

A guardian, of the person and estate or of the estate only, without application to the probate court, may lease the possession or use of any real estate of his ward for a term not exceeding three years, provided such term does not extend beyond the minority, if the ward is a minor. If the lease extends beyond the death of the ward or beyond the removal of the disability of a ward other than a minor, such lease shall terminate on such death or removal of disability, unless confirmed by the ward or his legal representatives. In the event of such determination, the tenant shall have a lien on the premises for any sum expended by him in pursuance of the lease in making improvements for which compensation was not made in rent or otherwise.

Effective Date: 10-01-1953

A guardian may lease the possession and use of the real estate of his ward or any part of it for a term of years, renewable or otherwise, by perpetual lease, with or without the privilege of purchase, or may lease upon such terms and for such time as the probate court approves any lands belonging to the ward containing coal, gypsum, petroleum oil, natural gas, gravel, stone, or any other mineral substance for the purpose of drilling, mining, or excavating for and removing any of such substances, or such guardian may modify or change in any respect any lease previously made.

Such lease, or modification or change in a lease previously made, may be made when the guardian of the person and estate or of the estate only applies to the court by which he was appointed and such court finds that the lease or modification or change is necessary for the support of the ward or of his family, for the payment of the just debts of the ward, for the ward’s education, if a minor, to secure the improvement of the real estate of the ward and increase the rent, to pay any liens or claims against said real estate, or if such court finds that such real estate is suffering unavoidable waste, or that in any other respect it will be for the best interests of the ward or those persons for whom the ward is required by law to provide.

Effective Date: 10-01-1953

A guardian’s application for authority to lease real estate of a ward shall be by petition setting forth:

(A) The legal capacity of the petitioner;

(B) The name of the ward, the character of his disability, and if it is idiocy, imbecility, or lunacy, whether such disability is curable or not, temporary, or confirmed, and its duration;

(C) The number, names, ages, and residence of the family of the ward, including the spouse and those residents of the county who have the next estate of inheritance from such ward, all of whom, as well as the ward, must be made defendants;

(D) The indebtedness of the ward, the expense of supporting and maintaining him, the expense of educating him if he is a minor, and any other expense of the ward;

(E) The value of all the property and effects of the ward including the real estate proposed to be leased;

(F) The income of the ward and the net annual value to the ward of the real estate proposed to be leased;

(G) A description of the real estate proposed to be leased and the probable amount for which such real estate can be leased;

(H) A detailed statement of the improvements proposed to be made to the real estate sought to be leased;

(I) The reasons for the proposed lease and the terms, covenants, conditions, and stipulations thereof, including the time for which it is proposed the real estate should be leased;

(J) Such other facts necessary to apprise the court fully of the necessity or benefit to the ward or the estate of the proposed lease, or such other facts as may be required by the court;

(K) A prayer for the proper authority.

Effective Date: 10-01-1953

In an application for authority to lease real estate of a ward under sections 2111.26 and 2111.27 of the Revised Code, the guardian may act for two or more wards and two or more guardians of different wards may unite, when all the wards are jointly or in common interested in the real estate. When the same person is guardian of two or more wards owning lands in common, such wards may be joined as defendants in the same petition.

The ward’s spouse shall be made a defendant to such petition, and if the proposed lease is for the purpose of mining or removing mineral or other substances, and if such spouse files an answer consenting to the lease, free and discharged of all right and expectancy of dower therein, such answer shall be a full release of such spouse’s expectancy of dower when the lease is confirmed. Unless in such answer an allowance in lieu of dower is waived, the court shall allow, out of the proceeds of the lease, such sum in money as is the just and reasonable value of such expectancy of dower.

Effective Date: 10-01-1953

When a guardian files an application for authority to lease the real estate of a ward, the same rules shall apply as to parties and, upon filing of the petition described in section 2111.27 of the Revised Code, like proceedings shall be had as in an action to sell real estate belonging to the ward under sections 2127.01 to 2127.43, inclusive, of the Revised Code, including services of summons, notice, appraisal, pleading, rule days, and proof.

Effective Date: 10-01-1953

When a guardian applies for authority to lease the real estate of a ward, the duties of the appraisers shall be the same as in proceedings to sell real estate belonging to the ward under sections 2127.22 and 2127.23 of the Revised Code, except that they shall appraise not only the value of the real estate but also the value of the annual rental upon the terms, covenants, conditions, and stipulations of the proposed lease. If said lease is for the mining or removal of mineral or other substances, the appraisers shall report in writing to the probate court their opinion as to the probability of the lands containing such substances, the probable quantity of such substances, and the terms upon which it would be advantageous to the ward to lease the lands for mining or removing such substances. In their report the appraisers shall state whether in their opinion, the proposed lease will be for the best interests of the ward, those whom he is required by law to support, or the estate. They may also suggest any change in the terms, covenants, and stipulations proposed in the petition. The report of the appraisers shall be returned on or before the day named in the order for the final hearing of the case. On the return of the appraisement, the guardian need not give an additional bond, but in case of sale under the terms of the lease, such guardian must give such bond before the confirmation of the sale.

Effective Date: 10-01-1953

If the report of the appraisers under section 2111.30 of the Revised Code is favorable to the lease and on the final hearing the court is of the opinion that it will be to the advantage of the ward, those whom he is required by law to support, or the estate to lease the real estate, the probate court shall make an order authorizing the lease to be made by public or private letting, as it deems best, on such terms, covenants, conditions, and stipulations, either in accordance with those set forth in the petition or otherwise, as it directs, provided such terms, covenants, conditions, and stipulations are not less favorable to the ward than those reported by the appraisers. The lease shall not take effect until such lease and the security, if any, therein prescribed are approved and confirmed.

In the lease made in pursuance of such order it may be provided that the improvements shall be made by the tenant as part of the rent, or by the guardian, either out of the rent or other means of the ward as the court directs.

If the lease is for the mining or removal of mineral or other substances and the guardian is unable to lease the lands upon the terms ordered, he may report the fact to the court and such court may change the terms of leasing, but not below the customary royalty in the vicinity of such lands.

Effective Date: 10-01-1953

If the lease made pursuant to court order, under section 2111.31 of the Revised Code is for the mining or removal of mineral or other substances on a royalty basis, within six months after the receipt of the first royalty under such lease the guardian shall report to the probate court the amount thereof and the court shall then fix a bond which will cover such royalty. At any time the court deems the bond insufficient to secure the royalty, it may increase such bond or require a new one.

Effective Date: 10-01-1953

A guardian may use the moneys and personal estate of his ward to improve his ward’s real estate. Such guardian shall file in the probate court in which he was appointed a petition containing the following:

(A) A description of the premises to be improved;

(B) The amount of rent the premises yield at the time the petition is filed;

(C) In what manner it is proposed to make such improvement;

(D) The proposed expenditures for such improvement;

(E) What rent the premises will probably yield when so improved;

(F) A statement of the value of the ward’s personal estate;

(G) Other facts which are pertinent to the question whether the improvement should be made;

(H) A prayer that such guardian be authorized to use so much of his ward’s money and personal estate as is necessary to make such improvement;

(I) The character of the disability of the ward, and if it is incompetency, whether such disability is curable or not, temporary, or confirmed, and its duration;

(J) The names, ages, and residence of the family of the ward, including the spouse and those known to be residents of the county who have the next estate of inheritance from the ward. All such persons, as well as the ward, must be made defendants and notified of the pendency and prayer of the petition in such manner as the court directs.

If the property is so situated that, to the best interests of the ward’s estate, it can be advantageously improved in connection with the improvement of property adjacent to it, the petition shall show this and have a prayer in accordance therewith.

Effective Date: 10-25-1961

Upon the filing of the petition described in section 2111.33 of the Revised Code, like proceedings shall be had as to pleadings and proof as on petition by a guardian to sell the real estate of a ward under sections 2127.01 to 2127.43, inclusive, of the Revised Code. The probate court shall appoint three disinterested freeholders of the county as commissioners to examine the premises to be improved, to examine the surroundings, and to report to the court their opinion whether the improvement proposed will be advantageous to the estate of the ward.

Effective Date: 10-01-1953

On the final hearing of a guardian’s proceeding to improve the real estate of his ward, if the prayer of the petition is granted, the probate court shall fix the amount of money and personal estate that may be used in making such improvement. Such court may authorize such guardian to unite with the owners of adjacent property, upon such equitable terms and conditions as the court approves, for the improvement of the premises of his ward and for the proper management and repair of the property when so improved.

Effective Date: 10-01-1953

A guardian shall distinctly report to the probate court the amount of money and personal property expended in making an improvement to the ward’s real property under section 2111.35 of the Revised Code, within forty days after the improvement is completed. If the ward dies before the removal of the disability and there are heirs who inherit real property only from him, the money expended shall descend and pass the same as his other personal property and be a charge on the premises improved in favor of the heirs who inherit the personal property.

Effective Date: 10-08-1992

When a nonresident minor, incompetent, or person confined in a state, charitable, or correctional institution has real estate, chattels, rights, credits, or moneys in this state, the probate court of the county in which the property or a part of it is situated may appoint a resident guardian of the ward to manage, collect, lease, and take care of the ward’s property. The appointment may be made whether or not a ward has a guardian, trustee, or other conservator in the state of the ward’s residence, and, if the ward has a guardian, trustee, or other conservator in the state of the ward’s residence, the control and authority of the resident guardian appointed in Ohio shall be superior as to all property of the ward in Ohio.

The first appointment of a resident guardian of a nonresident ward shall extend to all the property and effects of the ward in this state and exclude the jurisdiction of the probate court of any other county.

Effective Date: 10-06-1994; 2007 HB53 08-07-2007

The resident guardian of a nonresident ward shall give bond and be bound and controlled by all the statutes of Ohio as though he were a guardian of a ward resident in this state, and shall have all of the authority of a guardian of a resident ward including the authority to lease or sell real estate belonging to the ward.

Unless removed by the probate court, a resident guardian of a nonresident minor shall hold his appointment until such minor dies or arrives at the age of majority, whether or not such minor is over fourteen years of age at the time of appointment. A resident guardian of any other nonresident ward shall hold his appointment until the death of the ward or until the court is satisfied that the necessity for the guardianship no longer exists.

All moneys due to such nonresident ward while such resident guardianship continues shall be paid over to his foreign guardian so far as necessary or proper for the ward’s support and maintenance. If the ward dies, such moneys shall be paid to his ancillary administrator or other legal representative, provided that the court which appointed such resident guardian has satisfactory proof, as provided by section 2111.39 of the Revised Code, of the authority of such foreign guardian, administrator, or other legal representative to receive the moneys or estates of such nonresident ward, that the security given by such foreign guardian, administrator, or other legal representative is sufficient to protect such ward’s interest or estate, and provided such court deems it best for him or his estate.

Effective Date: 10-01-1953

When a foreign legal representative of a nonresident ward applies to have all or any of the moneys or property in the hands of the resident guardian of such ward paid or delivered to him, he must file his petition or motion in the probate court by which such resident guardian was appointed. Such resident guardian must be given thirty days’ notice of the time of hearing thereon and such foreign representative must produce an exemplification under the seal of the office, if there be a seal, of the proper court of the state of his residence containing all the entries on record in relation to his appointment and qualification, authenticated as required by the act of congress in such cases. Upon the hearing thereof, the court shall make such order as it deems for the best interests of such nonresident ward or his estate.

Effective Date: 10-01-1953

When a nonresident ward for whom a resident guardian was appointed has become a resident since the appointment and a guardian has been appointed for such ward, the probate court shall remove the resident guardian previously appointed and require an immediate settlement of his account.

Effective Date: 10-01-1953

When a ward for whom a guardian has been appointed in this state removes to another state or territory, and a guardian of the ward is there appointed, the guardian in this state may be removed and required to settle his account.

Such a removal shall not be made unless the guardian appointed in another state or territory applies to the probate court in this state that made the former appointment, and files an exemplification from the record of the court making the foreign appointment containing all the entries and proceedings relating to his appointment, his giving bond, with a copy thereof, and of the letters of guardianship, all authenticated as required by the act of congress. Before such an application is heard or action taken by the court, at least thirty days’ written notice shall be served on the guardian appointed in this state specifying the object of the application, and the time it is to be heard.

No such removal shall be made in favor of a foreign guardian, unless at the time of the hearing the state or territory in which he was appointed has a similar provision as to wards removing from that state or territory. The court shall grant the application unless it makes an affirmative finding that the removal of the guardian appointed in this state would not be in the interest of the ward.

If on such a hearing the court removes the guardian, it shall make all suitable orders for discharging the guardian and shall deliver to the foreign guardian all moneys and other property in the hands of the resident guardian after his settlement.

Effective Date: 01-01-1976

If a guardian is appointed by a court of another state or territory or by a foreign country for a nonresident ward, and the ward is entitled to money or other property in the custody of an executor, administrator, or other person in this state, the executor, administrator, or other person may deliver the money or other property to the guardian of the nonresident ward.

Effective Date: 10-04-1984

Wards living outside this state and owning lands within it are entitled to the benefit of Chapters 2101. to 2131., inclusive, of the Revised Code. Guardians appointed by foreign courts for nonresident wards may bring and maintain actions and enforce the collection of judgments rendered in such cases in their favor in the manner and to the extent that they could if appointed in this state, upon giving security for the costs which may accrue therein as other nonresidents do under sections 2323.30 to 2323.36, inclusive, of the Revised Code.

Effective Date: 10-01-1953

Applications for the sale of real estate by guardians of wards who live out of this state shall be made in the county in which the land is situated. If such real estate is situated in two or more counties, such application shall be made in one of the counties in which a part of it is situated. Additional security, which may be approved by the probate court of the county in which the application is made, shall be required from such guardian when deemed necessary.

Effective Date: 10-01-1953

The marriage of a ward shall terminate the guardianship as to the person, but not as to the estate, of the ward.

Effective Date: 01-01-1990

When a guardian has been appointed for a minor before such minor is over fourteen years of age, such guardian’s power shall continue until the ward arrives at the age of majority, unless removed for good cause or unless such ward selects another suitable guardian. After such selection is made and approved by the probate court and the person selected is appointed and qualified, the powers of the former guardian shall cease. Thereupon his final account as guardian shall be filed and settled in court.

Upon the termination of a guardianship of the person, estate, or both of a minor before such minor reaches eighteen years of age, if a successor guardian is not appointed and if the court finds that such minor is without proper care, the court shall certify a copy of its finding together with as much of the record and such further information as the court deems necessary, or as the juvenile court may request, to the juvenile court for further proceedings and thereupon such court shall have exclusive jurisdiction respecting such child.

Effective Date: 10-01-1953

Upon reasonable notice to the guardian, to the ward, and to the person on whose application the appointment was made, and upon satisfactory proof that the necessity for the guardianship no longer exists or that the letters of appointment were improperly issued, the probate court shall order that the guardianship of an incompetent terminate and shall make an appropriate entry upon the journal. Thereupon the guardianship shall cease, the accounts of the guardian shall be settled by the court, and the ward shall be restored to the full control of the ward’s property as before the appointment. Such entry terminating the guardianship of an incompetent person shall have the same effect as a determination by the court that such person is competent.

Effective Date: 10-25-1961; 2007 HB53 08-07-2007

If the ward for whom a guardian has been appointed removes to another county within this state and acquires a new residence or legal settlement therein, the probate court having jurisdiction over the guardian and the ward, may, on its own motion, or on motion of the guardian or any interested party, with the consent of the probate court of the county to which such ward has removed, transfer the jurisdiction over said guardian and ward to such probate court, provided it appears that such transfer would be in the best interest of the ward.

Thereupon, the original probate court shall prepare certified copies of the appointment, letters of guardianship, bond, inventory, the last account, if any, a full and complete transcript of its docket and journal entries up to and including the order of transfer and copies of such other papers as may be requested by the receiving court, and shall cause the same to be filed in the probate court accepting jurisdiction, all costs to be paid by the guardian out of the assets of the estate of the ward.

Upon the filing of the certified copies of the original papers and the transcript, and the payment of costs, the probate court to which the proceedings have been transferred may assign a case number and by journal entry, accept jurisdiction. A copy of the entry accepting jurisdiction shall be returned to the court of original jurisdiction. Thereupon, the probate court to which the proceedings have been transferred shall acquire jurisdiction over the guardian and the ward as though such probate court had jurisdiction and appointed the guardian in the first instance, and the jurisdiction of the probate court from which the proceedings have been transferred shall cease.

Effective Date: 10-05-1961

All sales, leases, encumbrances, or liens made or created on any real estate located in Ohio by guardians for persons who are incompetent by reason of advanced age or mental or physical disability since August 17, 1919, by order of any court of this state shall not be declared invalid for the reason that such guardians for incompetents were not vested with all the statutory powers given to guardians of idiots, imbeciles, and lunatics. Such acts of guardians for incompetents are legal and effective.

Effective Date: 10-01-1953

(A)(1) Subject to division (A)(3) of this section, the guardian of an incompetent person shall file a guardian’s report with the court two years after the date of the issuance of the guardian’s letters of appointment and biennially after that time, or at any other time upon the motion or a rule of the probate court. The report shall be in a form prescribed by the court and shall include all of the following:

(a) The present address of the place of residence of the ward;

(b) The present address of the guardian;

(c) If the place of residence of the ward is not the ward’s personal home, the name of the facility at which the ward resides and the name of the person responsible for the ward’s care;

(d) The approximate number of times during the period covered by the report that the guardian has had contact with the ward, the nature of those contacts, and the date that the ward was last seen by the guardian;

(e) Any major changes in the physical or mental condition of the ward observed by the guardian;

(f) The opinion of the guardian as to the necessity for the continuation of the guardianship;

(g) The opinion of the guardian as to the adequacy of the present care of the ward;

(h) The date that the ward was last examined or otherwise seen by a physician and the purpose of that visit;

(i) A statement by a licensed physician, licensed clinical psychologist, licensed independent social worker, licensed professional clinical counselor, or mental retardation team that has evaluated or examined the ward within three months prior to the date of the report as to the need for continuing the guardianship.

(2) The court shall review a report filed pursuant to division (A)(1) of this section to determine if a continued necessity for the guardianship exists. The court may direct a probate court investigator to verify aspects of the report.

(3) Division (A)(1) of this section applies to guardians appointed prior to, as well as on or after, the effective date of this section. A guardian appointed prior to that date shall file the first report in accordance with any applicable court rule or motion, or, in the absence of such a rule or motion, upon the next occurring date on which a report would have been due if division (A)(1) of this section had been in effect on the date of appointment as guardian, and shall file all subsequently due reports biennially after that time.

(B) If, upon review of any report required by division (A)(1) of this section, the court finds that it is necessary to intervene in a guardianship, the court shall take any action that it determines is necessary, including, but not limited to, terminating or modifying the guardianship.

(C) Except as provided in this division, for any guardianship, upon written request by the ward, the ward’s attorney, or any other interested party made at any time after the expiration of one hundred twenty days from the date of the original appointment of the guardian, a hearing shall be held in accordance with section 2111.02 of the Revised Code to evaluate the continued necessity of the guardianship. Upon written request, the court shall conduct a minimum of one hearing under this division in the calendar year in which the guardian was appointed, and upon written request, shall conduct a minimum of one hearing in each of the following calendar years. Upon its own motion or upon written request, the court may, in its discretion, conduct a hearing within the first one hundred twenty days after appointment of the guardian or conduct more than one hearing in a calendar year. If the ward alleges competence, the burden of proving incompetence shall be upon the applicant for guardianship or the guardian, by clear and convincing evidence.

Effective Date: 03-18-1997

(A)(1) At all times, the probate court is the superior guardian of wards who are subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all orders of the court that concern their wards or guardianships.

(2)(a) Subject to divisions (A)(2)(b) and (c) of this section, the control of a guardian over the person, the estate, or both of his ward is limited to the authority that is granted to the guardian by the Revised Code, relevant decisions of the courts of this state, and orders or rules of the probate court.

(b) Except for the powers specified in division (E) of this section and unless otherwise provided in or inconsistent with another section of the Revised Code, the probate court may confer upon a guardian any power that this section grants to the probate court in connection with wards.

(c) For good cause shown, the probate court may limit or deny, by order or rule, any power that is granted to a guardian by a section of the Revised Code or relevant decisions of the courts of this state.

(B) In connection with any person whom the probate court has found to be an incompetent or a minor subject to guardianship and for whom the court has appointed a guardian, the court has, subject to divisions (C) to (E) of this section, all the powers that relate to the person and estate of the person and that he could exercise if present and not a minor or under a disability, except the power to make or revoke a will. These powers include, but are not limited to, the power to do any of the following:

(1) Convey or release the present, contingent, or expectant interests in real or personal property of the person, including, but not limited to, dower and any right of survivorship incident to a survivorship tenancy, joint tenancy, or tenancy by the entireties;

(2) Exercise or release powers as a trustee, personal representative, custodian for a minor, guardian, or donee of a power of appointment;

(3) Enter into contracts, or create revocable trusts of property of the estate of the person, that may not extend beyond the minority, disability, or life of the person or ward;

(4) Exercise options to purchase securities or other property;

(5) Exercise rights to elect options under annuities and insurance policies, and to surrender an annuity or insurance policy for its cash value;

(6) Exercise the right to an elective share in the estate of the deceased spouse of the person pursuant to section 2107.45 of the Revised Code;

(7) Make gifts, in trust or otherwise, to relatives of the person and, consistent with any prior pattern of the person of giving to charities or of providing support for friends, to charities and friends of the person.

(C) Except for the powers specified in division (D) of this section, all powers of the probate court that are specified in this chapter and that relate either to any person whom it has found to be an incompetent or a minor subject to guardianship and for whom it has appointed a guardian and all powers of a guardian that relate to his ward or guardianship as described in division (A)(2) of this section, shall be exercised in the best interest, as determined in the court’s or guardian’s judgment, of the following:

(1) The person whom the probate court has found to be an incompetent or a minor subject to guardianship;

(2) The dependents of the person;

(3) The members of the household of the person.

(D) If the court is to exercise or direct the exercise, pursuant to division (B) of this section, of the power to make gifts in trust or otherwise, the following conditions shall apply:

(1) The exercise of the particular power shall not impair the financial ability of the estate of the person whom the probate court has found to be an incompetent or a minor subject to guardianship and for whom the court has appointed a guardian, to provide for his foreseeable needs for maintenance and care;

(2) If applicable, the court shall consider any of the following:

(a) The estate, income, and other tax advantages of the exercise of a particular power to the estate of a person whom the probate court has found to be an incompetent or a minor subject to guardianship and for whom the court has appointed a guardian;

(b) Any pattern of giving of, or any pattern of support provided by, the person prior to his incompetence;

(c) The disposition of property made by the will of the person;

(d) If there is no knowledge of a will of the person, his prospective heirs;

(e) Any relevant and trustworthy statements of the person, whether established by hearsay or other evidence.

(E)(1) The probate court shall cause notice as described in division (E)(2) of this section to be given and a hearing to be conducted prior to its exercise or direction of the exercise of any of the following powers pursuant to division (B) of this section:

(a) The exercise or release of powers as a donee of a power of appointment;

(b) Unless the amount of the gift is no more than one thousand dollars, the making of a gift, in trust or otherwise.

(2) The notice required by division (E)(1) of this section shall be given to the following persons:

(a) Unless a guardian of a ward has applied for the exercise of a power specified in division (E)(1) of this section, to the guardian;

(b) To the person whom the probate court has found to be an incompetent or a minor subject to guardianship;

(c) If known, to a guardian who applied for the exercise of a power specified in division (E)(1) of this section, to the prospective heirs of the person whom the probate court has found to be an incompetent or a minor subject to guardianship under section 2105.06 of the Revised Code, and any person who has a legal interest in property that may be divested or limited as the result of the exercise of a power specified in division (E)(1) of this section;

(d) To any other persons the court orders.

(F) When considering any question related to, and issuing orders for, medical or surgical care or treatment of incompetents or minors subject to guardianship, the probate court has full parens patriae powers unless otherwise provided by a section of the Revised Code.

Effective Date: 01-01-1990

Each county shall establish in the county treasury an indigent guardianship fund. All revenue that the general assembly appropriates to the indigent guardianship fund for a county, thirty dollars of the thirty-five-dollar fee collected pursuant to division (A)(34) of section 2101.16 of the Revised Code, and twenty dollars of the sixty-dollar fee collected pursuant to division (A)(59) of that section shall be deposited into the fund that is established in that county. Expenditures from the fund shall be made only upon order of the probate judge and only for payment of any cost, fee, charge, or expense associated with the establishment, opening, maintenance, or termination of a guardianship for an indigent ward.

If a probate court determines that there are reasonably sufficient funds in the indigent guardianship fund of the county in which the court is located to meet the needs of indigent guardianships in that county, the court, by order, may declare a surplus in the indigent guardianship fund and expend the surplus funds for other guardianship expenses or for other court purposes.

Effective Date: 11-09-1994