A guardianship is a very drastic legal step in an adult’s life. It is the process where a court of law removes legal rights to make decisions on his or her own. It’s not something we like to pursue unless there are no other options.

There are alternatives to guardianship. If the person has a good power of attorney, the powers under that document may be able to accomplish the transactions that are immediately necessary. If the person hasn’t lost all mental faculties, she can consent to a conservatorship where that person basically consents to a court-supervised power of attorney.

But sometimes they're unavoidable because certain realities are just there. In that case, the probate court can grant someone else (the "guardian") the ability to make decisions for the person needing help (the "ward"). The ward becomes legally incapable of making any meaningful decisions and the guardian can control nearly all aspects of the ward's life. It's a pretty drastic result.

Why do we want to avoid guardianships?

The legal process of a guardianship is designed to protect assets for the person who’s under the guardianship—the ward. The court has to approve all financial transactions and the court reviews those transactions with the approach that all activity must be in the best interests of the ward. If it’s not, the court is much less likely to approve the transaction.

Why is that bad?

It’s not bad. But if the goals are to protect assets from being spent on long-term care, the court might not approve. The court would rather that person’s money be spent on his care. The court generally won’t look at a transaction that benefits family—or sometimes even a spouse—as being in that person’s best interests. So it’s not that it’s bad, but we lose some direct control to make decisions because we’re reliant on the probate judge agreeing to use his or her discretion in favor of asset protection. As superior guardian under Ohio law, the probate judge can authorize gifting and asset protection. But it’s much harder to accomplish.

Why are guardianships difficult?

They’re difficult because every penny must be accounted for and before anything can be spent, the probate judge must approve the transaction. And then every year or every other year (depending on the court) you have to file an accounting of how you’ve spent the money. You may even have to go as far as to file canceled checks and receipts for all the transactions. Most people need a lawyer's help to keep the paperwork moving through the process. Guardianships are just a lot of work and that makes them expensive.