Appointment of a guardian for a minor is serious business. A child's welfare and financial resources are at stake, and appointing the wrong person as guardian can be disastrous for the child's future. If you've been asked to be a guardian for a minor child, need to contest the appointment of someone else, or are a parent preparing for the future welfare of your child, you need to understand how guardianships work. Below you find the answers to common questions about when guardians are needed, how to become a guardian, and what happens in a contested guardianship.
When Do Kids Need Guardians?
In Ohio, children are considered to be adults at the age of 18 unless mentally disabled. A guardian is needed to ensure they are properly cared for in terms of health, upbringing and education. They also need a guardian to watch over any significant assets that come into their possession, such as proceeds from a personal injury lawsuit for an accident that disabled them or an inheritance.
When a child has at least one living parent who is a competent adult, the natural parents are considered the child's guardians for everything other than the child's assets. If a minor or disabled child has assets, someone must be appointed guardian by the local probate court. If a child has no living parents or their living parents have been deemed incompetent or unfit or have surrendered their parenting rights, then the probate court will appoint someone else.
Do Natural Parents Ever Need to Apply to Be Guardians of their Own Children?
When children come in possession of significant assets, as mentioned above, the natural parents – even if competent and fit parents – must apply to be guardians of the children's assets. The courts are required to verify that the parents are not likely to squander away assets the children need. If the parents don't meet the statutory requirements to be guardians of their child's assets, then another guardian must be found.
Who Can Apply as Guardian of a Minor?
When a child's parents can't be the child's guardians, anyone with ties to the child can apply to become the child's guardian. It is often preferred that another family member become the child's guardian, especially for daily care and upbringing. For guardianship of assets, it is not uncommon for an attorney, accountant or other professional to apply for and be appointed guardian.
How Does Someone Become a Guardian?
To become a child's guardian, the potential guardian must file an application with the probate court in the jurisdiction where the child resides. In Ohio, a guardian over a child's assets, whether it be the child's parents, a relative or other party, must be bonded by an insurance company. The bond must be in an amount at least twice the value of the child's assets and must be paid for 100 percent in advance of the application. The bond must be submitted at the time of the application for guardianship.
After the application is made, the local probate court will schedule a hearing to determine the applicant's qualifications. The child is usually not required to attend the hearing, but the applicant is. If the applicant meets all statutory and court requirements, he or she is usually appointed guardian unless it is being contested.
Contested guardianships occur when either a person or entity objects to the appointment of the applicant and files an objection with the court or when more than one person or entity applies for appointment. In either case, a hearing is held and arguments are heard from all concerned parties, then the probate judge makes a decision and appoints a guardian (assuming at least one of the potential guardians meets the necessary requirements).
In a case in which an objection is made against the sole applicant for guardianship and the probate judge agrees with the objection, then an interim guardian may be appointed.
Who can Contest a Guardianship?
Essentially, anyone with an interest in the child's welfare can file an objection to a guardianship. Even the child, who of course is concerned with their own welfare, can object to the appointment of a particular guardian. In such a case, an attorney is hired or appointed to represent the ward.
Getting Help with the Guardianship Process
Where guardianship of a minor is involved, it is best to be represented by an experienced estate planning and probate attorney. An attorney can assist with the application for guardianship or objection to the appointment of a person or entity as guardian. An attorney can also argue your case in court, and, in some cases, may be able to present alternatives to guardianship that will involve less interference from the court, such as setting up a special needs trust for a minor child so that their assets don't disqualify them from receiving Medicaid or Social Security benefits. Call an experienced estate planning and probate attorney to ensure the best possible outcome for your guardianship case.