Guardianship - 1/02/09

Kim: Recently a  72 year old Shaker Heights resident was arrested for kidnapping her 86 year old sister. Apparently the 86 year old sister was living in Pittsburg in a  dilapidated apartment by herself and her sister was worried about her  so she forced her to come home with her to Shaker Heights.  If you feel your  parent or other  family member is incompetent and unable t to care for themselves what can you do to help them?   Here to answer these questions is attorney Michael Solomon.

Kim: What happens if an adult child is worried about the safety or health of  an elderly  parent  who might be living alone ? What can they do to protect their parent?

Mike: Well one thing you can’t do is kidnap your parent. You can go to Probate Court and ask to be appointed guardian. The Court will hold a hearing to decide if your parent is incompetent and if you are the appropriate person for the guardianship.

Kim: What do you do if you don’t have time to wait for the Court to hold a hearing?

Mike: Ohio law does give you the right to probate a person. That means you ask the Probate Court for an emergency action to appoint you guardian even without a hearing. If the Probate court believes it is an emergency it can immediately appoint you a guardian.  After the emergency is handled, the Probate Court must hold a hearing within three days to decide what actions to take. 

Also if you are concerned that your parent or other relative may squander their money by giving it away or spending it before the Court has a chance to determine their competence there is a little known provision in Ohio law to protect your parents money. The law allows you to freeze a parent’s bank accounts even before the hearing is held to determine competence. You need to send the bank a letter telling them that a competence hearing has been set and that they should not pay out any money from the account until after the court has ruled.

Kim: What if you are concerned about an elderly person, maybe a neighbor or other relative, but don’t want to get involved in all of these court proceedings?

Mike : You could call adult protective services. They will investigate and if they feel it is appropriate, they may go to the Probate Court for a guardianship  to protect the person.

Kim: Is there anything you can do in advance to protect an older person ?

Mike: There are two very important documents you should have:

Durable Power of Attorney- Your  parent or other elderly relative should have a durable power of attorney giving someone the right to handle their  financial matters. Also, the power of attorney  tells the court   who they  would like to be their   guardian if one is needed.

Health Care  Power Of Attorney -  This document states who    can make medical decision  for the elderly person without necessarily  having to go to court to have a guardian appointed.

You should check with your loved ones to make sure that they have taken these basic steps to protect themselves.

Kim: Thank you.