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Ohio Probate Judge Describes Court as “Superior Guardian”

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DECEMBER 27, 2011 VOLUME 18 NUMBER 44
Carl Smith is a developmentally disabled young man living in Ohio. When he reached age 18, his mother Peggy Smith applied to the local probate court for appointment as his guardian. She was appointed, and Carl continued to live with her for the next several years.

In 2005 James Stewart moved into the Smith home. Mr. Stewart was a recently-released felon; he had spent fourteen years in the Ohio prison system after a rape conviction. Mr. Stewart and Ms. Smith later married.

In 2007 Carl Smith reported that his stepfather had slapped him. Without any further evidence of violence, authorities simply closed their investigation. In 2008 Carl reported that his stepfather had beaten him with a belt; caregivers at his day program observed cuts and bruises, and a report was filed. Mr. Stewart was charged with a felony for the alleged abuse, and he represented himself at trial. He was convicted.

Meanwhile, the probate court learned of the assault charge and scheduled its own hearing into Carl’s care and living arrangements. Concerned about his safety, the probate judge removed Mrs. Stewart (the former Ms. Smith) as guardian and appointed a private fiduciary to make placement and treatment decisions for Carl. Carl moved into a group home with two other developmentally disabled residents and a full-time caregiver.

Mrs. Stewart appealed her removal as guardian. The Ohio Court of Appeals agreed that her removal was premature as the criminal charges against Mr. Stewart had not yet been resolved. At about the same time, the same Court of Appeals also reversed the conviction of Mr. Stewart on the assault charge, finding that he should not have been allowed to represent himself in his criminal trial.

The county prosecutor made a decision not to re-try Mr. Stewart on the assault charge, since he had already served as much jail time as he would get if there was another trial. Mrs. Stewart then sought approval to return Carl’s guardianship to her, and to bring him back into her — and her husband’s — home.

The Ohio probate judge declined to make Mrs. Stewart the guardian for her son once again. After a court-appointed investigator reported that Carl was frightened of Mr. Stewart and happy in his current environment, the judge ruled that Mrs. Stewart had exposed her son to potential and actual harm.

In a guardianship case, ruled the probate judge, the court is the “superior guardian” and ultimately responsible for decisions about placement, care and welfare. The appointed guardian “is simply an officer of the court subject to the court’s control, direction and supervision.” With that responsibility, it is incumbent on the probate court to investigate and act on any concerns about the well-being of wards in guardianship proceedings.

Mrs. Stewart appealed again. She argued that the probate court had disobeyed the earlier Court of Appeals instruction by not returning Carl to her care, and that it had no jurisdiction to initiate its own investigation into Carl’s living arrangements.

In its second view of the guardianship matter (and its third look at the Stewart/Smith family) the Court of Appeals dismissed Mrs. Stewart’s allegations. It agreed with the probate judge that the court is the “superior guardian,” and that a guardian’s actions are always subject to the court’s review. The appellate court quoted a 2010 Ohio Supreme Court decision (In Re: Guardianship of Spangler) in which the state’s high court had ruled that “the plenary power of the probate court as the superior guardian allows it to investigate whether a guardian should be removed upon receipt of sufficient information that the guardian is not acting in the ward’s best interest.” In Re: Guardianship of Smith, December 16, 2011.

In addition to Ohio, courts in Mississippi and Washington have described their local probate courts as the “superior guardian” in recent guardianship disputes. What does that mean? As a practical matter, it means that court-appointed guardians — even when they are also the parents or other close family member — are responsible to the probate judge for their decisions about care and placement. The probate judge may investigate, may enter restrictive orders and may even remove guardians when it appears necessary for the ward’s safety or well-being.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.