Ohio

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process


I. Designation of Standby Guardian

In Ohio, the main way to nominate a guardian for children has been through a Durable Power of Attorney. Therefore, it is in the commercial code that standby guardianship is described: "the power of attorney shall become effective at a later time or upon the occurrence of a specified event, including, but not limited to, the disability, incapacity, or adjudged incompetency" of the parent. [Commercial 1337.09(B)] However, lawmakers also have provided in the "guardian" section of the probate code a way for a parent to nominate a standby guardian in any other written attested document. [Probate 2111.121] Whether through a Durable Power of Attorney, or through another kind of attested writing, the emphasis is on the occurrence of a future event that begins the guardianship. The event need not be incapacity or disability.

Such a nomination amounts to a preference for the court to consider. A child 14 years or older also may express a preference, but the parent's nomination would tend to carry greater weight with the court. The law is clear, however, that the court ultimately will make an independent judgement about what is in the child's best interests. [Probate 2111.02(D); 2111.12]

The parent is free to design the terms of a designation – whether it shall apply to both the child's activities and property, or just the activities; when it shall commence; who the guardian shall be; whether it is to include unborn children; and how long it shall last. [Commercial 1337.09; Probate 2111.121] The parent likely will require the help of a lawyer to work out a designation plan for her children unless the Clerk of the Court has very clear forms.




II. Agreement of the Non-Custodial Parent

There is no requirement that the non-custodial parent sign the nominating document. The standby guardianship laws do not describe requirements for finding and obtaining the consent of the non-custodial parent. However, other parts of Ohio law lay down specific factors for determining from whom consent needs to be obtained. For example, the adoption laws exclude the following kinds of parents from having to consent: those who have "failed without justifiable cause to communicate with the minor or to provide for the maintenance and support" for at least the preceding year; a putative father who fails to register as the father within 30 days of the birth; or who has willfully abandoned the mother during her pregnancy; or whose parental rights have been terminated; or who has been "judicially declared incompetent" and failed to respond to a request for consent; or one who simply fails to respond to the request whether or not incompetent; or wherever it is "unreasonably difficult" to obtain the consent, whether because of prolonged absence, unavailability; or any other reason. [Adoption 3107.07]

In other words, a non-custodial parent who demands preference over another nominated guardian, will have to have already expressed his willingness and ability to parent.




III. Role of the Standby Guardian

A standby guardian's powers are first proposed in the parent's nominating document, and then agreed to or modified by the court. They may include responsibilities for the child's property, as well as decision-making regarding the activities, including protection, control, maintenance and education. [Probate 2111.13] The Ohio law does not describe "concurrent authority." When the guardianship goes into effect, it would appear that those duties are not shared with the parent – (unless informally, or by specific decree of the court).

Because Ohio law does not define what the triggering events shall be, the guardianship might begin in whatever way the parent suggests and the court agrees.

A hearing is held at the time the nominating document and petition for appointment of a standby guardian are filed. The proposed guardian must appear at the hearing, and take an oath to fulfill his duties. Because those duties may well include filing reports and accounting to the court, they also may include filing evidence of the triggering event. However, that is not alluded to in the law. Specifically, there is no requirement for medical certification of incapacity or debilitation. [Probate 2111.02 ( C)]

A standby guardianship would last as long as outlined in the court decree, or in lieu of specific instructions, until the child reaches majority, unless ended by an event or court action.





IV. Court Process

Court process begins when the parent (or interested other person) files a Durable Power of Attorney [Commercial 1337.09] or other nominating document [Probate 2111.121] with the court, along with a petition requesting appointment of a standby guardian. Prior to holding a hearing in the case, the court may appoint a Probate Court investigator to report on the facts and recommend a course of action. [Probate 2111.042]

The court will hold a hearing to determine if the guardianship is in the child's best interests. A referee, rather than a judge, may preside. The proposed guardian must appear and take an oath that he will faithfully fulfill the duties of a guardian. [Probate 2111.02( C)] Bond may be waived. Because any child 14 or older may express a preference, one would assume older children would appear in court. [Probate 2111.12] If the guardianship appointment is made the court's decree will set the terms. Guidance for the court to determine the best interests of the child can be found in a number of places in Ohio law. For example, in the adoption statute there are many factors to consider that lead to a stable environment. [Adoption 3107.161]

Once the appointment is made, whether or not the court will require a subsequent filing of documents confirming a triggering event will depend on the terms of the court's decree. It is not a specified action in the law.

		Ohio Revised Code Title XXI. Courts – Probate – Juvenile Chapter 2111. Guardians; conservatorships, general provisions (1996 Session laws, 121st General Assembly) sections Commercial 1337.09(B); Probate 2111.02; .042; .12; .121; .13; Adoption 3107.07