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Am I entitled to an attorney in guardianship proceedings?



 

Sometimes mental health or physical illnesses make it difficult for a person to make decisions about their basic needs, finances, and medical issues. If you or someone you care about struggles to make these kinds of life decisions, a court can appoint someone else to make the decisions. This process is called “guardianship.”

A guardianship starts with an application in Probate Court. Often, the application is filed by a family member or a social service agency. If someone applies to be a guardian for another person, that person has the right to be at all Court hearings. The Court will ask a doctor to evaluate the person, and the person has the right to ask for an independent expert evaluation (a second opinion from a different doctor). The person also has the right to have an attorney represent him or her. If the person cannot afford an attorney or independent expert evaluation, the court must pay these fees.

After the Court approves a guardianship, the person who struggles to make decisions is called a “ward” and the “guardian” must make decisions in his or her best interests. The guardian has to talk with the ward when possible. If a ward later feels capable of making independent decisions, he or she can ask the Court for a “Guardianship Review Hearing.” A review hearing can happen once a year; a request to modify or end the guardianship can be made anytime.

Before 2013, few Ohio probate courts appointed the ward an attorney in the Review Hearing. However, in January 2013, the Ohio Supreme Court decided that all Probate Courts must appoint an attorney if the ward could not afford one in the case State ex rel. McQueen v. Cuyahoga County. Now, Ohio law requires probate courts appoint an attorney to represent a ward at any hearing reviewing or challenging the guardianship, if the ward cannot afford counsel and requests an attorney.

For more information about guardianships, see Ohio Guardianship Guide at www.ohioattorneygeneral.gov/Files/Publications. Helpful forms and other information may also be found at Disability Rights Ohio, www.disabilityrightsohio.org.

This article was written by Deborah Dallman and appeared in The Alert: Volume 32, Issue 1. Click here to read a full PDF of this issue!