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Fleming & Curti, PLC

Ohio Probate Judge Describes Court as " Superior Guardian "

DECEMBER 27, 2011 VOLUME 18 NUMBER 44

Carl is a developmentally disabled young man living in Ohio. When he

reached age 18, his mother Peggy applied to the local probate court for

appointment as his guardian. She was appointed, and Carl continued to live with

her for the next several years.

In 2005 moved into the home. Mr. was a

recently-released felon; he had spent fourteen years in the Ohio prison system

after a rape conviction. Mr. and Ms. later married.

In 2007 Carl reported that his stepfather had slapped him. Without any

further evidence of violence, authorities simply closed their investigation. In

2008 Carl reported that his stepfather had beaten him with a belt; caregivers at

his day program observed cuts and bruises, and a report was filed. Mr.

was charged with a felony for the alleged abuse, and he represented himself at

trial. He was convicted.

Meanwhile, the probate court learned of the assault charge and scheduled its

own hearing into Carl's care and living arrangements. Concerned about his

safety, the probate judge removed Mrs. (the former Ms. ) as

guardian and appointed a private fiduciary to make placement and treatment

decisions for Carl. Carl moved into a group home with two other developmentally

disabled residents and a full-time caregiver.

Mrs. appealed her removal as guardian. The Ohio Court of Appeals

agreed that her removal was premature as the criminal charges against Mr.

had not yet been resolved. At about the same time, the same Court of

Appeals also reversed the conviction of Mr. on the assault charge,

finding that he should not have been allowed to represent himself in his

criminal trial.

The county prosecutor made a decision not to re-try Mr. on the assault

charge, since he had already served as much jail time as he would get if there

was another trial. Mrs. then sought approval to return Carl's

guardianship to her, and to bring him back into her -- and her husband's --

home.

The Ohio probate judge declined to make Mrs. the guardian for her son

once again. After a court-appointed investigator reported that Carl was

frightened of Mr. and happy in his current environment, the judge ruled

that Mrs. had exposed her son to potential and actual harm.

In a guardianship case, ruled the probate judge, the court is the " superior

guardian " and ultimately responsible for decisions about placement, care and

welfare. The appointed guardian " is simply an officer of the court subject to

the court's control, direction and supervision. " With that responsibility, it is

incumbent on the probate court to investigate and act on any concerns about the

well-being of wards in guardianship proceedings.

Mrs. appealed again. She argued that the probate court had disobeyed

the earlier Court of Appeals instruction by not returning Carl to her care, and

that it had no jurisdiction to initiate its own investigation into Carl's living

arrangements.

In its second view of the guardianship matter (and its third look at the

/ family) the Court of Appeals dismissed Mrs. 's allegations.

It agreed with the probate judge that the court is the " superior guardian, " and

that a guardian's actions are always subject to the court's review. The

appellate court quoted a 2010 Ohio Supreme Court decision (In Re: Guardianship

of Spangler) in which the state's high court had ruled that " the plenary power

of the probate court as the superior guardian allows it to investigate whether a

guardian should be removed upon receipt of sufficient information that the

guardian is not acting in the ward's best interest. " In Re: Guardianship of

, December 16, 2011.

In addition to Ohio, courts in Mississippi and Washington have described their

local probate courts as the " superior guardian " in recent guardianship disputes.

What does that mean? As a practical matter, it means that court-appointed

guardians -- even when they are also the parents or other close family member --

are responsible to the probate judge for their decisions about care and

placement. The probate judge may investigate, may enter restrictive orders and

may even remove guardians when it appears necessary for the ward's safety or

well-being.

Subjects: guardianship, Mississippi, Ohio, Ohio Court of Appeals, probate

court, superior guardian, Washington

This article can be found at

http://issues.flemingandcurti.com/2011/12/26/ohio-probate-judge-describes-court-\

as-superior-guardian/ - © 2011

Fleming & Curti, P.L.C. • 330 N. Granada Avenue, Tucson, Arizona 85701 •

Phone: (520) 622-0400 Arizona or (877) 366-0400 Toll-Free

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