Most of us assume we will always have control over our own decisions, finances, and future. However, life is unpredictable. If you suffer an illness, injury, or mental decline that leaves you legally “incompetent”, Ohio’s Probate Court can appoint a guardian to take over your affairs—potentially against your wishes.
This process, known as probate guardianship, can have serious financial, legal, and emotional consequences for both you and your loved ones. Fortunately, with proper estate planning, you can avoid it entirely.
Let’s explore how guardianship works, why it can become a problem, and what steps you can take to protect yourself and your family.
What Is Probate Guardianship?
A guardian is a person the Probate Court appoints to make decisions on behalf of someone who cannot legally do so. While most people associate guardianship with minors, adults can also fall under guardianship if they lose their ability to manage their affairs.
This can happen due to:
- Traumatic brain injury
- Dementia or Alzheimer’s disease
- A stroke or other serious illness
- A debilitating mental health condition
- A coma or long-term incapacitation
If a court deems you “incompetent,” you legally become a ward, and the court assigns a guardian—someone who then controls key aspects of your life.
Types of Guardianship in Ohio
Ohio recognizes three types of guardianship:
- Guardianship of the Person – The guardian makes personal, medical, and daily life decisions for you. This includes healthcare choices, living arrangements, and basic needs.
- Guardianship of the Estate – The guardian manages your finances, including your bank accounts, property, income, and investments.
- Guardianship of Both – A combination of personal and estate guardianship, where the guardian controls both your daily life and financial matters.
Guardianship limits your personal freedom and can create significant financial burdens for your loved ones.
The Probate Guardianship Problem
If the court appoints a probate guardian, it introduces several challenges that may negatively impact your estate and your family.
1. Loss of Personal & Financial Control
Once a guardian is appointed, you lose your legal right to make decisions regarding your finances, medical care, and assets. Even if you recover, it can be difficult and expensive to regain control.
2. Expensive Probate & Guardianship Fees
Probate isn’t free—your estate must cover all costs. These include:
✔ Guardian fees – Court-appointed guardians are paid from your assets.
✔ Court & legal fees – The probate process involves attorney fees, court costs, and administrative expenses.
✔ Appraisal & accounting fees – Your assets must be valued before distribution.
✔ Executor fees – Estates in probate are typically charged 1% to 4% of their total value.
These fees drain your estate, leaving less for your beneficiaries.
3. Delays in Settling Your Estate
Probate is a long and complex process. Instead of a smooth transition of assets, your family may face months or even years of legal battles, causing unnecessary stress and financial strain.
4. Family Disputes & Court Battles
Guardianship can create conflict among family members. If multiple relatives believe they should serve as guardian, disputes may arise, leading to costly and time-consuming legal battles.
Example:
Imagine you suffer a stroke, and the court appoints a guardian to manage your affairs. If your children disagree on who should be in control, they may fight in court, delaying important financial and medical decisions. Meanwhile, probate fees chip away at your estate, reducing the inheritance meant for your loved ones.
How to Avoid Probate Guardianship
The good news? You can avoid probate guardianship entirely by planning ahead. A comprehensive estate plan ensures your wishes are followed and keeps your assets out of the probate system.
Here’s how:
1. Establish a Living Trust
A revocable living trust allows you to control your assets while you’re alive and transfers them directly to beneficiaries upon your passing—without probate.
Benefits:
✔ Avoids probate & guardianship
✔ Keeps your estate private
✔ Gives you control over asset distribution
2. Name a Durable Power of Attorney
A Durable Power of Attorney (POA) allows someone you trust to make financial decisions if you become incapacitated. This prevents the need for a court-appointed guardian.
✔ Choose your own representative instead of leaving it up to the court.
✔ Ensure seamless financial management if you become unable to make decisions.
3. Create a Healthcare Power of Attorney & Advance Directives
A Healthcare POA lets you appoint someone to make medical decisions on your behalf. Combined with an Advance Directive (Living Will), this document ensures your wishes for medical care are honored.
✔ Prevents family disputes over medical decisions.
✔ Avoids unwanted medical treatments.
4. Name Guardians in Your Will
Even if you don’t expect to need one, naming a guardian in your Will ensures you choose who will manage your affairs if necessary. This prevents the court from appointing someone you wouldn’t have chosen.
✔ Gives you control over your future care.
✔ Prevents court involvement.
5. Use Beneficiary Designations
Certain assets—such as life insurance policies, retirement accounts (401k, IRA), and bank accounts—can bypass probate if you name direct beneficiaries.
✔ Ensures quick asset transfers to loved ones.
✔ Reduces probate costs.
6. Regularly Update Your Estate Plan
Life changes—such as marriage, children, or acquiring new assets—require estate plan updates. Keeping your documents current ensures they align with your wishes.
✔ Review your plan every 3-5 years or after major life events.
✔ Ensure all documents reflect your current financial situation.
Take Control of Your Future
Probate guardianship can take away your decision-making power and create financial hardships for your loved ones. The best way to protect yourself and your estate is through proactive estate planning.
Attorney Christopher Diedling can help you with estate planning strategies that help you avoid probate guardianship.
✔ Get started today –filling out our confidential planning intake form, and let’s create a strategy that keeps your estate in the right hands.
Don’t leave your future to chance—plan ahead and stay in control.