Probate Litigation Attorneys
Recently the Ninth District Court of Appeals made a ruling in the matter of In Re: Guardianship of Bakhtiar, which allows persons interested in the welfare of another the ability to intervene in guardianship proceedings if the party who is intervening can demonstrate an interest relating to the property or transaction that is the subject of the action.
The concept, as it relates to the potential intervention in a guardianship proceeding, does not necessarily relate to personal interests but, most often, relates to the important role intervention plays in guardianship proceedings: “The rules for intervention allow courts to maintain control of proceedings and permit parties to participate only when they have an actual interest in the guardianship proceedings. The creation of a guardianship is a significant event, and family, friends, or even concerned neighbors could all potentially be affected by the outcome of a guardianship proceeding. Not all such persons will have a legally sufficient interest to allow them to become parties to the proceedings however.”
We, at Reminger Co., LPA, suspect that intervention might be available to family members or even “neighbors” who have a reasonably substantial relationship to the ward such that the concepts of guardianship and guardianship decision making could impact rights to visitation, impact relationships with the ward, or impact subjects of medical care, choice of residential placement, and nursing care. If an interested party relies on financial support from the ward under “non-abusive circumstances”, then intervention might also be possible if a guardianship order would affect the provision of care and support. Similarly, if the interested person has been properly named a beneficiary under various assets, which assets would become the property of the guardianship, an intervention might be possible to protect an interest in the ongoing maintenance of the beneficiary designation as it relates to expenditure of accounts and a disposition of assets as intended by the potential ward prior to a finding of incompetence.
The potential of intervention is highlighted by looking at the holding by the Ohio Supreme Court in the matter In Re: Guardianship of Santrucek, 120 Ohio St. 3d 67, 2008 Ohio 4915: A ward’s non-Ohio resident next of kin, who failed to file an application to be appointed guardian and otherwise was not made a party to the guardianship proceeding, lacks standing to appeal the trial court’s determination of jurisdiction. “In so doing, the court noted that, while the appellant was precluded by statute from being named guardian, ‘there were other means for her to have been made a party.’” (citing to the intervention rules).
Intervention should be considered if (a) the intervening party would not qualify as a guardian; (b) the intervening party would not desire to be a guardian; (c) the intervening party may disagree with the allegation that the ward is incompetent. In the past, it was not atypical for an attorney to give an interested person advice to file a guardianship application or otherwise risk having no role in the guardianship proceedings. Now that intervention is recognized as a valuable tool in the arsenal, we expect to see more such filings.
If you have questions about guardianship proceedings, including what it takes to file an application for guardianship, proof required, and the potential of intervention, please contact one of our guardianship trial attorneys.