2. PROTECTING THE ELDERLY

3. The Nature of Probate Court
Not a Social Service Agency
Court of Law
Duty is to the Public at large
Individual Freedoms are to be Protected
Finder of Facts
Ethical Constrants
Ex Parte Communication

4. Probate Court
Lawyers??
Last Resort?

5. 2101.24 Jurisdiction of probate court.
EXCLUSIVE JURISDICTION
(e) To appoint and remove guardians, conservators,… direct and control their conduct, and settle their accounts;
(g) To make inquests respecting persons who are so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that they are unable to manage their property and affairs effectively, subject to guardianship;

6. Jurisdiction of Probate Court
(m) To direct and control the conduct of fiduciaries and settle their accounts;
(s) To act for and issue orders regarding wards pursuant to section of the Revised Code;
Superior Guardian

7. AREAS OF COURT INVOLVEMENT
Guardianships
Conservatorships
Adult Protective Services
DDS Protections
POAs
Mental Health Commitments

8. GUARDIANSHIP
Guardianship is a formal, legal relationship where a competent willing person is appointed by the Probate Court to have the care and management of the person, estate or both of an “incompetent person”
Guardian of the estate of the ward has the authority to make all financial decisions for ward
Guardian of the person of the ward has the authority to control and protect the person of the ward

9. INCOMPETENT(R.C )
(D) “Incompetent” means any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide, or any person confined to a correctional institution within this state.

10. PROCEDURE Hearing must be held Notice to next of kin in Ohio
Two parts to hearing
Clear and Convincing Evidence
Rights of the prospective ward
Medical evidence
Bond requirement
Court Investigator

11. PROBATE COURT AS SUPERIOR GUARDIAN
R.C
Guardians shall obey all orders of the court that concern their ward
Probate court confers upon a guardian the power to act on behalf of ward
Probate court may limit or deny any power granted to guardian
Guardianship is between the ward and the court

12. EMERGENCY GUARDIANSHIP
Court, ex parte, may appoint an emergency guardian for a maximum of 72 hours if
An emergency exists
Immediate action is necessary to prevent significant injury to the person or estate of the incompetent
After hearing may be extended for 30 days

13. CONSERVATORSHIP ( )
A competent adult how is physically infirm may petition the probate court his person and or any and all personal and real property under a conservatorship.
Voluntary
Scope can be limited
Termination

14. ADULT PROTECTIVE SERVICES
(B) “Adult” means any person sixty years of age or older within this state who is handicapped by the infirmities of aging or who has a physical or mental impairment which prevents the person from providing for the person’s own care or protection, and who resides in an independent living arrangement.
(I) “Incapacitated person” means a person who is impaired for any reason to the extent that the person lacks sufficient understanding or capacity to make and carry out reasonable decisions concerning the person’s self or resources, with or without the assistance of a caretaker.
Definitions

15. TEMPORARY RESTRAINING ORDER (5101.63)
If, during the course of an investigation conducted under section of the Revised Code, any person, including the adult who is the subject of the investigation, denies or obstructs access to the residence of the adult, the county department of job and family services may file a petition in court for a temporary restraining order to prevent the interference or obstruction.
Renumbered

16. PETITIONING COURT FOR COURT ORDER TO PROVIDE PROTECTIVE SERVICES (5101
Petition shall state the specific facts alleging the abuse, neglect, or exploitation and shall include a proposed protective plan.
Notice personally served on adult at least 5 days prior to hearing, rights of adult, basis for belief services necc., right to attorney, notice spouse, chlildren etc.

17. HEARING ON PETITION(5101.67) 14 DAYS AFTER FILING
Right to appointed counsel
Clear and Convincing evidence that adult has been abused, neglected, or exploited…
Six months but can be continued one year

18. TRO person interfering with provision of services (5101.69)
Adult consents but others refuse to allow services
Petition Court
Hearing w/in 14 days
Find services necc., consent given, another preventing

19. EMERGENCY ORDER ( )
Non consent of adult

20. 5122.10 Emergency hospitalization
Any psychiatrist, licensed clinical psychologist, licensed physician, health officer, parole officer, police officer, or sheriff may take a person into custody, …if the psychiatrist, licensed clinical psychologist, licensed physician, health officer, parole officer, police officer, or sheriff has reason to believe that the person is a mentally ill person subject to hospitalization by court order under division (B) of section of the Revised Code, and represents a substantial risk of physical harm to self or others if allowed to remain at liberty pending examination.

21. 5122.01 Hospitalization of mentally ill definitions
(A) “MENTAL ILLNESS” MEANS A SUBSTANTIAL DISORDER OF THOUGHT, MOOD, PERCEPTION, ORIENTATION, OR MEMORY THAT GROSSLY IMPAIRS JUDGMENT, BEHAVIOR, CAPACITY TO RECOGNIZE REALITY, OR ABILITY TO MEET THE ORDINARY DEMANDS OF LIFE.
(B) “MENTALLY ILL PERSON SUBJECT TO HOSPITALIZATION BY COURT ORDER” MEANS A MENTALLY ILL PERSON WHO, BECAUSE OF THE PERSON’S ILLNESS:
(1) REPRESENTS A SUBSTANTIAL RISK OF PHYSICAL HARM TO SELF… ;
(2) REPRESENTS A SUBSTANTIAL RISK OF PHYSICAL HARM TO OTHERS …
(3) REPRESENTS A SUBSTANTIAL AND IMMEDIATE RISK OF SERIOUS PHYSICAL IMPAIRMENT OR INJURY TO SELF AS MANIFESTED BY EVIDENCE THAT THE PERSON IS UNABLE TO PROVIDE FOR AND IS NOT PROVIDING FOR THE PERSON’S BASIC PHYSICAL NEEDS BECAUSE OF THE PERSON’S MENTAL ILLNESS …
(4) WOULD BENEFIT FROM TREATMENT IN A HOSPITAL FOR THE PERSON’S MENTAL ILLNESS…

22. 5122.11 Judicial hospitalization
Proceedings for the hospitalization of a person pursuant to sections to of the Revised Code shall be commenced by the filing of an affidavit in the manner and form prescribed by the department of mental health, by any person or persons with the court, either on reliable information or actual knowledge, whichever is determined to be proper by the court.

23. 5126.30 Protective services for adults with developmental disability definitions.
(A) “Adult” means a person eighteen years of age or older with mental retardation or a developmental disability.
(G) “Incapacitated” means lacking understanding or capacity, with or without the assistance of a caretaker, to make and carry out decisions regarding food, clothing, shelter, health care, or other necessities, but does not include mere refusal to consent to the provision of services.

24. (H) “Emergency protective services” means protective services furnished to a person with mental retardation or a developmental disability to prevent immediate physical harm.

25. Complaint process.
(A) A county board of developmental disabilities may file a complaint with the probate court of the county in which an adult with mental retardation or a developmental disability resides for an order authorizing the board to arrange services described in division (C) of section of the Revised Code for that adult if the adult is eligible to receive services or support under section of the Revised Code and the board has been unable to secure consent.

26. 5126.331 Ex parte emergency order
(A) A probate court, through a probate judge or magistrate, may issue by telephone an ex parte emergency order authorizing any of the actions described in division (B) of this section if all of the following are the case

27. Probate Court
(1) The court receives notice from the county board of developmental disabilities, the board … believes an emergency order is needed …
(2) The adult who is the subject of the notice is eligible to receive services or support
(3) There is reasonable cause to believe that the adult is incapacitated

28. Probate Court
(4) There is reasonable cause to believe that there is a substantial risk to the adult of immediate physical harm or death.