Guardianship Statute Does Not Require Probate Court To Deny Guardianship Application Simply Because Evidence of Less Restrictive Alternative Is Produced

In re: Guardianship of Collins, 12th Dist. Case No. CA2013-08-072, 2014-Ohio-5750. The appellate court held that the probate court did not abuse its discretion in granting the application for guardianship even though the ward already had a healthcare power of attorney.  Interpreting R.C. § 2111.02(C)(5), the 12th District stated that the statute requires only that a probate court consider the existence of a less restrictive alternative to guardianship. The statute does not require a probate court to deny an application for guardianship simply because evidence of a less restrictive alternative is produced. In this matter, the ward’s attorney expressed her belief that the ward was trying to revoke her power of attorney. The record established that the ward did not believe she was ill or in need of treatment, twice stating she was 100% sane. The ward, however, also told the court that someone was posing as the applicant at the hearing. Because a power of attorney can be revoked at any time, the appellate court held that the trial court did not abuse its discretion in determining that the guardianship of the ward’s person was necessary and that the less restrictive alternative of the healthcare power of attorney would not sufficiently protect the ward’s person.