September 3, 2021

Guardianships vs. Conservatorships: Breaking Down the Differences Under Ohio Law

by Mary Kraft, Esq. & Adriann McGee, Esq., Reminger Co., LPA

From the "Free Britney" movement to Netflix’s “I Care A Lot,” conservatorships and guardianships have garnered media attention over the past year.

Although some headlines have cultivated a negative connotation surrounding these court-ordered relationships, rest assured that safeguards are implemented by the courts and law in Ohio to protect the rights and interests of Conservatees and Wards. This rise of media coverage has also left many wondering, what is the difference between a guardianship and a conservatorship? Well, each state is different.

In Ohio, a guardianship is an involuntary relationship between the Ward, a legally incompetent person, and a Guardian, the person appointed by the probate court to manage the Ward’s personal and/or financial affairs. The relationship is involuntary because someone other than the prospective Ward must file the application for guardianship. But, most importantly, before a guardianship can be established, the probate court must hold a hearing to determine whether the prospective Ward is legally incompetent. Under R.C. 2111.01(D), “incompetent” means:

  1. 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, 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;
  2. Any person confined to a correctional institution within this state.

Ultimately, if the probate court determines that the prospective Ward is incompetent, a guardianship is established and a Guardian is appointed. While the Guardian has the authority to manage finances and/or activities of daily life in furtherance of the Ward’s best interest, the probate court itself is the superior Guardian. Accordingly, the Guardian must receive approval from the probate court prior to making most decisions, including spending guardianship funds, moving the Ward into a more restrictive residence, and filing a lawsuit on behalf of the Ward.

A conservatorship, on the other hand, is a voluntary relationship in Ohio, between the Conservatee, a person who is mentally competent but physically infirm, and a Conservator, the person appointed by the probate court to manage the Conservatee’s personal and/or financial affairs. This relationship is voluntary because a competent adult must file a petition with the probate court on their own behalf, requesting the appointment of a Conservator. Accordingly, the biggest difference between guardianships and conservatorships in Ohio rests on competency.

Each state has their own set of rules and laws regarding guardianships and conservatorships. Indeed, Britney Spears’ conservatorship in California is much different than a conservatorship in Ohio. That is because California conservatorships are more akin to guardianships in Ohio. However, constancy throughout guardianships and conservatorships in every state is the ultimate purpose to protect and act in best interest of the Ward and Conservatee.


Kraft


McGee

Related CLE:

The Britney Spears Case and the Human Cost of Conservatorship

September 23, 2021
12:00-1:30pm on Zoom
1.5 CLE Hours

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