Appointment of a Guardian in a Power of Attorney

By: Elliott Stapleton

In Ohio, a power of attorney can nominate a guardian and may nominate a guardian of the person, the estate, or both of one or more of the individual’s minor children or incompetent adult children. This can include any future born children.

A nomination is submitted for consideration by the Probate court if proceedings for the appointment are necessary. Typically, the appointment of a power of attorney will avoid the guardianship process.

If for any reason, a third party who is not the nominated power of attorney applies to the Probate court, the nominated guardian can submit a competing application. Generally, except for good cause shown or disqualification, the court will appoint the nominated guardian named in the individual’s most recent power of attorney.

If there is a concern that a third party will apply to be a guardian against the principal’s wishes, it is possible to file a copy of the power of attorney with the local probate court. This would limit the risk of a third party applying for guardianship without notification to the agent appointed in the power of attorney. This is known as a “standby guardian” when filed with the probate court.

If a guardian who is not the nominated agent is appointed, the guardian must provide notice to the agent and the principal.

The individual signing the power of attorney may direct that bond be waived for a person nominated as guardian or as a successor guardian. This will limit the administrative expense necessary for the guardian to serve.

A power of attorney is determined by the law of the jurisdiction indicated in the document. If there is no jurisdiction indicated, then where the document was executed.

A power of attorney can either be effective immediately (right after it is signed the agent has authority) or springing (meaning the power springs into effect upon a future event).
If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective only if the terms of the document have been satisfied. Triggers might include a determination by a physician (or two physicians) who have examined or a licensed psychologist who has evaluated the principal and determined he or she is incapacitated or determination by a court that the principal is incapacitated.

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