This week’s blog continues the discussion of Legal Issues when someone has Dementia. The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?” The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place. The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared. The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney. The June 4, 2015 installment discussed how to decide whether to prepare a Living Will. The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney. The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.” The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.” The July 2, 2015 installment discussed revoking prior Powers of Attorney. The July 9, 2015 installment discussed Do Not Resuscitate orders. The July 16, 2015 installment discussed the Right of Disposition designation. The July 23, 2015 installment discussed the Will (or Last Will and Testament.) The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. The August 6, 2015 installment discussed whether to pre-plan a funeral. The August 14, 2015 installment discussed choosing a final resting place. The August 28, 2015 installment discussed pre-planning the funeral ceremony. The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral. The September 10, 2015 installment discussed medical insurance choices. The September 17, 2015 installment discussed long term care insurance. The September 24, 2015 installment discussed how an elder law attorney can help. The October 1, 2015 installment introduced the topic of guardianship. Today’s installment will discuss the application process for a guardianship action.
When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship. Guardianship is a long process with many potential twists and turns. The twists and turns can start right at the outset with the guardianship application itself.
In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of taking proper care of the person’s self or property.” (Ohio Revised Code section 2111.01(D)) The determination whether the proposed ward is incompetent starts with an application for guardianship submitted by the would-be guardian. The application must have with it a statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent. (In Ohio, there is a form for this medical statement.) If no health professional will support the applicant’s claim, the probate court won’t even accept the application for guardianship. If a medical professional won’t support the claim, the probate court won’t bother with it.
If the would-be guardian submits an application with the necessary medical statement, the probate court will have one of its own investigators check out the claim of incompetence. The investigator will meet with the proposed ward and try to determine whether the person is able to make decisions about his or her health care and finances. In my experience, these investigators are very conscientious, trying very hard to make a fair determination. The investigator then reports back to the probate court. If the investigator reports that the proposed ward seems unable to handle his or her own affairs, the guardianship process will continue. If the investigator reports that the proposed ward seems capable of handling his or her own affairs, the guardianship process ends.
If the investigator reports that the would-be ward seems unable to handle his or her own affairs, the probate court will set a hearing date on the guardianship application at which the proposed ward can oppose the application.