Guardianship of an Incompetent Adult: The Basics

A guardian is a person (or agency) appointed by the county probate court to have the care and management of the person, the estate, or both of an incompetent or minor.

The word “incompetent” has a variety of meanings.  Generally, incompetent is defined in the Ohio Revised Code 2111.01(D)(1) as “any person who is so mentally impaired, as a result of a mental or physical illness or disability, as a result of intellectual disability, or as a result of chronic substance abuse, 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 person for whom the person is charged by law to provide.”

Incompetence is a factor test and is ultimately determined by the county probate judge at a hearing.  The proposed guardian will provide evidence for the judge to consider.  A key piece of evidence is a Statement of Expert Evaluation performed by either a licensed physician or licensed clinical psychologist. 

At the hearing, the proposed guardian bears the burden of proving, by clear and convincing evidence both of the following:

(1) The alleged incompetent’s incompetence; and

(2) That no less restrictive alternative exists to the proposed guardianship. 

Guardianships can be tricky from a Constitutional standpoint.  When guardianships are uncontested, at the very least there is a due process to protect the rights of the allegedly incompetent person.  A contested proceeding is most common when the allegedly incompetent person opposes the guardianship.  However, contested guardianships arise when there are competing interests of family members, friends, or beneficiaries of the estate of the allegedly incompetent person.