Estate and Trust Dispute Center of Ohio

Effective July 1, 2022, Ohio’s Rules of Superintendence have been updated with regard to guardianships. The new Rules focus on facilitating visitation and communication with a Ward.

Consider a common situation: an elderly parent names one of her children as her power of attorney (POA). Eventually, the parent requires placement in a long-term care facility. While in the facility, the POA directs the facility to exclude other children from any visitation or calls with the parent. The parent becomes isolated, lonely, and very dependent on the POA. The POA may use this opportunity to financially exploit their parent.

Isolation is often one of the first red flags that cause someone to hire a lawyer to seek guardianship. But, a guardianship requires a statement of expert evaluation – a doctor’s report as to the ward’s mental competency. How can someone excluded from seeing the ward get such a statement?

Under the new Rules of Superintendence[1], a potential guardian can file an application with a statement that “the agent of the prospective ward or other individual has refused to consent to an examination.” The Rules also added a requirement that the Court direct its investigator “to inquire into the visitation history and preferences of the prospective ward…” both during the initial investigation and at any time the court directs. The investigator must then provide a written report with a “visitation recommendation” to the court. This “visitation recommendation” will be available to the court when it makes the ultimate decision to impose a guardianship and who should be the guardian.

The new Rules also require Guardians to do all of the following:

identify those persons with whom the ward desires to communicate and facilitate the communication the guardian believes is in the best interest of the ward. Encourage visitation and communication with the ward so long as such visitation is in the best interest of the ward. Promptly submit a list of names to the court of any persons or entities whom the guardian has excluded or seeks to exclude from visiting or communicating with the ward.

Lastly, the Rules have long required a court have a process whereby persons could submit comments or concerns about a guardianship. The new Rules require that system to also accept comments or concerns “including actions of the guardian in denying a request of a person to visit with the ward…”

With these new Rules in place, we can be sure that probate courts will watch closely any guardian who tries to isolate their ward. If you have questions about guardianships, you can reach out to our experienced probate attorneys.