of Guardianship:
Finally, there is limited guardianship that allows a probate court
to appoint someone as guardian over only the portion of a person’s
life where he is both incompetent and has a need. Thus, you might have
a limited guardian for medical purposes only (i.e., to provide consent
for medical procedures), or for placement purposes only, or for the limited
purpose of approving behavior plans and/or psychotropic medications.
This is the least restrictive form of guardianship and should be utilized
whenever possible. (See O.R.C. Section 2111.02.)
What rights are taken away when a Guardian is appointed?
The rights taken away depend upon the type of guardian who is appointed. If a Plenary Guardian (i.e., Guardian of Person AND Estate) is appointed, then nearly all of an individual’s rights are taken away and given to a guardian to exercise on his behalf. The person has, in essence, been determined by a court to be totally incompetent in the eyes of the law.
The loss of personal rights is why guardianship is a very serious step, and one only to be taken as a matter of last resort. That is why a Limited Guardianship that identifies and limits a specific area in an individual’s life, and does not affect any other rights, is much to be preferred if guardianship is necessary. That is also why the alternatives to guardianship listed below should be considered before guardianship.
Although it is a serious thing to take one individual’s rights away and give them to someone else to exercise, we need to recognize that many parents and other guardians end up doing this for their children/wards not to punish or control them, but to speak and advocate for/with them, to protect their health and safety, and to help them exercise rights they never could have exercised on their own. Often the Guardian is the person who knows the individual the best, and is best situated to speak for and advocate for him – even more so if the guardian is a parent or sibling. In addition, the guardian may be the one person who is a constant in the ward’s life as direct care staff and professionals come and go.
Other areas of the individual’s life may touch upon fundamental rights or a right of privacy. There may be certain medical procedures that a probate court will not allow a guardian to give consent to such as abortion, sterilization or sex change. However, despite some reluctance, courts may terminate the natural guardianship of a parent over his/her minor children when the parent has a mental disability if the court believes it is necessary to do so for the welfare of the child. Likewise, courts may prevent or nullify the marriage of a ward, especially if the marriage takes place without the guardian’s consent.
It is also important to recognize that some rights are personal to the individual and cannot be exercised by a guardian. A guardian cannot make a Will or execute a Power of Attorney for his ward. In addition, voting is a fundamental right. Unless a court specifically rules that a person is incompetent for purposes of voting, an individual retains the right to vote – even if he has a Plenary Guardian.
What rights are taken away when a Guardian is appointed?
The rights taken away depend upon the type of guardian who is appointed. If a Plenary Guardian (i.e., Guardian of Person AND Estate) is appointed, then nearly all of an individual’s rights are taken away and given to a guardian to exercise on his behalf. The person has, in essence, been determined by a court to be totally incompetent in the eyes of the law.
The loss of personal rights is why guardianship is a very serious step, and one only to be taken as a matter of last resort. That is why a Limited Guardianship that identifies and limits a specific area in an individual’s life, and does not affect any other rights, is much to be preferred if guardianship is necessary. That is also why the alternatives to guardianship listed below should be considered before guardianship.
Although it is a serious thing to take one individual’s rights away and give them to someone else to exercise, we need to recognize that many parents and other guardians end up doing this for their children/wards not to punish or control them, but to speak and advocate for/with them, to protect their health and safety, and to help them exercise rights they never could have exercised on their own. Often the Guardian is the person who knows the individual the best, and is best situated to speak for and advocate for him – even more so if the guardian is a parent or sibling. In addition, the guardian may be the one person who is a constant in the ward’s life as direct care staff and professionals come and go.
Other areas of the individual’s life may touch upon fundamental rights or a right of privacy. There may be certain medical procedures that a probate court will not allow a guardian to give consent to such as abortion, sterilization or sex change. However, despite some reluctance, courts may terminate the natural guardianship of a parent over his/her minor children when the parent has a mental disability if the court believes it is necessary to do so for the welfare of the child. Likewise, courts may prevent or nullify the marriage of a ward, especially if the marriage takes place without the guardian’s consent.
It is also important to recognize that some rights are personal to the individual and cannot be exercised by a guardian. A guardian cannot make a Will or execute a Power of Attorney for his ward. In addition, voting is a fundamental right. Unless a court specifically rules that a person is incompetent for purposes of voting, an individual retains the right to vote – even if he has a Plenary Guardian.