TLDR: If you have not already executed your advance directives, doing so could eliminate the possibility of facing the difficult legal dilemma of conservatorship or guardianship.

What happens when an individual is mentally competent but unable to care for themselves or manage their affairs due to a physical disability? For individuals living with severe physical disabilities, the inability to perform daily tasks does not mean they’ve lost the ability to make decisions. Yet, when legal help is needed to manage their personal or financial affairs, families often face a confusing question: Should they seek guardianship or conservator ship? The question raises important distinctions under Ohio law between guardianship and conservatorship.

Guardianship: Reserved for Those Determined to be Mentally-Incompetent

Under Ohio Revised Code (ORC) § 2111.01(D), guardianship is appropriate only when a person is legally deemed incompetent. This means they must be unable to care for themselves or manage their affairs due to mental impairment, intellectual disability, substance abuse, or incarceration.  The largest hurdle we see to obtaining guardianship is the people who would petition the court to be the guardian need a statement of expert evaluation determining level of incompetency and if the potential guardian isn’t the agent under a Medical Power of Attorney, the medical provider will not talk to them. 

Conservatorship: A Voluntary Alternative

For individuals who are mentally competent but physically unable to manage their personal or financial affairs, Ohio provides an alternative: conservatorship.

According to ORC § 2111.021, a competent adult who is physically infirm may voluntarily petition the probate court for a conservatorship. This process allows the individual to appoint a conservator to help manage their affairs while retaining autonomy and legal competency.

Key features of conservatorship include:

• The process is voluntary and initiated by the individual in need.
• It can be tailored to cover the person, property, or both.
• The individual retains control over the scope of the conservator's authority.
• The conservatorship can be terminated or modified at any time by the petitioner.

Guidance for Moving Forward

Ohio law respects the autonomy of those who remain mentally competent, providing a flexible and protective framework through conservatorship without unnecessarily stripping them of their legal rights.

Having a medical power of attorney and/or a HIPPA waiver on file with the loved one’s medical professional can often help avoid guardianship. Having a financial or durable power of attorney executed for the loved one can often avoid conservatorship. Lardiere McNair and Stonebrook has experienced attorneys significant experience in preparing advance directives for individuals, which will allow for avoidance of the difficult probate process. If you or a loved one have yet to execute your advance directives, call our office today to set up a consultation to speak with one of our experienced attorneys!

Micah S. Fretz is a Law Clerk at Lardiere McNair & Stonebrook, Ltd., LPA.

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