PROBATE A

Q: My mentally disabled sister was severely injured when she fell down the stairs at the group home where she resides. My brother is the guardian of her person and estate, and he has not investigated to determine if there was any negligence involved. Can I look into the matter? :

As your sister’s appointed guardian, your brother is the only one who can legally investigate any possible negligence by the group home and file legal action for her personal injury claim (if appropriate). Keep in mind that the Probate Court is the superior guardian and delegates to the appointed guardian the care and management of the person and/or estate of an incompetent. The appointed guardian acts as an agent for the Court and subject to the control of the Court. Guardians owe a fiduciary duty (a special duty) to act in the best interest of their ward, and their authority is restricted to what is listed in his/her letter of guardianship. Because your brother is guardian of your sister’s person and estate, his authority has very few limits but is as complete as allowed by Ohio law and the probate court that has jurisdiction of the guardianship. As guardian of the person, your brother is responsible for protecting and controlling the ward. A guardian shall immediately report to the probate division of a court of common pleas and, when applicable, to adult protective services any appropriate allegations of abuse, neglect, or exploitation of a ward. The guardian also has authority to request and review medical records and other applicable reports. As guardian of the estate, he is responsible for managing your sister’s estate, and must therefore make financial and business decisions in her best interest. This includes bringing legal action on the ward’s behalf for her injuries. If it seems your brother is not appropriately carrying out his duties, any interested party, including you and/or your sister (the ward), may ask the probate court to review the guardianship. As mentioned above, the court is the superior guardian of the ward, meaning it is ultimately responsible for protecting your sister. The court may issue instructions to your brother as guardian or remove him if the circumstances require. Please contact the DiCello Law Firm to discuss your sister’s situation in greater detail.

Robert J. DiCello