Supported Decision Making
If you have a question about Supported Decision Making that is not answered below, please call Shelly Snyder at 419-221-1385 ext. 1291.
Supported Decision Making FAQs
What happens after a guardian passes away?
The Probate Court in which the guardianship case is filed should be immediately notified and provided with a copy of the death certificate, if possible. One or more persons or agencies willing and able to serve as guardian may apply for appointment. The Court conducts a hearing and appoints the applicant or applicants found to be suitable and in the best interests of the ward. Since the Probate Judge is the superior guardian in all guardianship cases, the Court may address emergency situations involving the ward until a successor is appointed. If a guardian is temporarily or permanently removed or resigns, and the welfare of the ward requires immediate action, the Probate Court may appoint an interim guardian for a limited period of time.
Does a person with limited guardianship still have voting rights?
Voting is a personal right that, at the discretion of the court, may be removed, but cannot be delegated to the guardian.
According to the Supreme Court of Ohio, legal and civil rights are guaranteed by the Ohio and United States Constitution, unless taken away by appointment of a guardian. Voting is among those fundamental rights and privileges that are not lost under guardianship.
“Guardianship does not terminate a ward’s right to vote unless the probate court specifically makes a finding and rules otherwise. Absent a probate court finding that an individual has lost the right to vote, then the ward retains the right to vote.”
How do you remove guardianship? What is the process to terminate guardianship for someone who would benefit from Supported Decision-Making instead of guardianship of the person?
To remove guardianship, you will need to obtain an order terminating the guardianship from the Probate Court in which the guardianship case is filed. Normally, this will require the filing of a motion to terminate the guardianship and a finding that the guardianship is no longer necessary.
What is the difference between the various types of power of attorney?
A power of attorney, or POA, is a legal document that allows one person, called the “agent,” to represent another person, called the “principal,” in various types of financial and medical matters. Generally, a power of attorney exists upon entering into an agreement and terminates when the principal dies, becomes incapacitated if the agreement is not durable, is revoked, or the purpose it was created for is accomplished. A durable power of attorney becomes effective when you sign it, but also remains effective after you are deemed incompetent. In Ohio, there is a presumption that a power of attorney is durable unless the agreement expressly provides otherwise. Thus, if you would like the power of attorney to terminate upon incapacity, it must be expressly provided in the terms of the agreement. A springing power of attorney only goes into effect once you become incompetent. A limited power of attorney only extends to a specific purpose and ends upon the completion of the duty or at a time specified in the document.
There are three substantive kinds of power of attorney: general, financial, and health care. A general power of attorney is described above. A financial power of attorney gives your agent power over financial transactions. You may indicate that your agent has authority in all financial areas or limit it to certain areas. The different kinds of financial transactions are listed in the Ohio Revised Code at 1337.60. A healthcare power of attorney gives your agent authority over decisions related to your medical treatment. Importantly, a healthcare power of attorney only “springs” (goes into effect) once you have been deemed incompetent.
Is Supported Decision Making a formal process or simply a collaborative, informal process?
Supported Decision Making is an informal, very natural process. Just like you and I may seek help in making decisions for things such as purchasing a car or what doctor to go to, individuals with disabilities can also choose someone they trust, such as a family member, close friend, coworker, or staff to help them understand and make decisions. An individual can choose just one person to help them, a team of people, or various people depending upon what the matter is. If an individual would like a more formalized Supported Decision Making process, there are sample forms of SDM contracts that are available. These contracts can be revoked by the individual at any time.
Does a Social Security “payee” have legal authority in other areas?
A payee is an individual who receives your benefits on your behalf from the Social Security Administration. A payee is selected because Social Security has decided that a payee is necessary to help you manage your finances. Similar to a guardian, you may indicate who you wish to have as your payee, but the final decision is with Social Security.
Payees should not mingle the beneficiary’s funds with their own funds. This usually means that a payee will open a bank account with the beneficiary as the owner and themselves as the financial agent. The beneficiary can never have direct access to the account and the payee can never say they have ownership of the account.
Even if you have a payee, you maintain the right to receive all notices sent from Social Security (unless you have a guardian) and to maintain authority over other, non-Social Security benefits, such as food assistance or money earned. With rights come responsibilities. As the payee, you maintain the responsibility to report your income, especially any changes.
While a payee can manage certain accounts on your behalf, they cannot enter into contracts on behalf of the beneficiary, unless the payee is also the guardian or has power of attorney. If someone has power of attorney or is your guardian, they still must apply separately to become your Social Security payee.
How often is a guardian required to meet with the individual?
Ohio Rule of Superintendence 66.09 (E) provides that a guardian shall: “Meet with the ward as needed [emphasis added], but not less than once quarterly or as determined by the probate division of the court of common pleas.” Check Local Rules of Court for any other requirements of contact with the ward.
Who oversees guardianship reporting?
At all times, the probate court is the superior guardian of wards who are subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all orders of the court that concern their wards or guardianships.
The Court exercises oversight in a number of ways, some of which are as follows:
1. Requiring the filing and review of an Annual Plan by the guardian.
2. Requiring an annual Guardian’s Report by the guardian, with a Statement of Expert Evaluation to be attached. Both filings are reviewed by court staff.
3. In addition, an Account is required to be filed annually and approved by the Court if there is a guardian of the estate of the ward.
4. The Court also is responsible for the guardian’s compliance with the initial and annual guardian’s training required by the Ohio Rules of Superintendence.
5. The Court investigates and makes any necessary orders if a complaint is filed against a guardian.
What criteria (from a doctor) determines competency?
This Statement of Expert Evaluation refers to the details of what the expert is assessing. It is important to note that this document is referring to the legal definition of competency, which can differ from a medical or psychological definition, dependent on the field of who is completing the evaluation. As noted on the document, the information on the evaluation is used as evidence presented to the probate court to consider before declaring if a person is incompetent.
Keep in mind that every case being assessed is different and the level of functionality is particular to that person.
Those professionals approved to complete the evaluation are listed on the document and include:
– Licensed physician
– Licensed clinical psychologist
(ONLY a physician or psychologist can complete the initial evaluation when filing an application for guardianship. ONLY a licensed physician can complete the Supplement for Emergency Guardian when filing for Emergency Guardianship.)
– Licensed independent social worker
– Licensed professional clinical counselor
– Allen County Board of Developmental Disabilities Team
What other “experts” can determine competency?
Only a physician or psychologist can complete the initial evaluation when filing an application for guardianship. ONLY a licensed physician can complete the Supplement for Emergency Guardian when filing for Emergency Guardianship.
What happens if the money doesn’t “add up?” Can guardians be fined? Removed?
A partial (annual) or final account of a guardian of the estate must be approved by the Court. The Court has broad authority to issue orders determined to be appropriate if an account cannot be approved. The guardian could be removed and ordered to reimburse any funds determined to have been improperly expended or otherwise are due to the ward’s estate. If the guardian was bonded, the surety could be ordered to pay the ward’s guardianship estate for any amount found due by the Court. The guardian could be subject to criminal charges if the ward’s assets have been misappropriated. Note – guardians of the person only may also be removed or cited for failure to comply with their duties as guardian of the person.
What is the difference between limited guardianship for healthcare and a durable power of attorney for healthcare?
Limited guardianship is an alternative to full guardianship which allows a “ward” (the individual with a guardian) to be unrestricted in the areas where the limited guardianship does not apply. A probate court will appoint a limited guardianship only in the area where the ward is incompetent and demonstrates a need. Because people may need help in some areas, and not others, the courts have an interest in preserving their independence as much as possible. An example is a court appointing limited guardianship for the purpose of placing the ward in a group home. The limited guardian may make all decisions regarding group home placement. However, the ward is still allowed to make decisions about medical procedures and medication.
A durable healthcare power of Attorney is when a competent individual gives another person the power to make healthcare decisions for them if, at a later time, they are deemed incompetent. A power of attorney can only be created by someone who is competent. This is to guarantee that the chosen agent is trustworthy and reliable. If an individual is deemed incompetent before creating a power of attorney, they cannot enter into one and the probate court must oversee their relationships.
The biggest difference is at what level of competency an individual is considered. A competent adult who wants to make a decision about their future healthcare decisions can create a durable healthcare power of attorney. Someone who is already incompetent may have a probate court appoint a limited guardian for them. The reverse will never happen: a person who is competent in all areas will not be appointed a guardian and an incompetent person cannot enter into a power of attorney agreement.
References:
National Guardianship Association. (2017). Fundamentals of guardianship: what every guardian should know. Chicago, Illinois: ABA, Senior Lawyers Division.
The Supreme Court of Ohio. (2016). Fundamentals of adult guardianship: participant manual. Columbus, Ohio: The Supreme Court of Ohio Judicial College Staff.
Magistrate Tim Hamman of Allen County, OH Probate Court, personal communication, April – December, 2018.