Probate Court’s Appointment of Agent as Guardian Reversed


When Jessie Simmons signed powers of attorney giving her son Donald authority to handle her personal and financial affairs, she probably thought she was doing the right thing. After all, a power of attorney makes it easier for family members to take care of what needs to be done. It also avoids the expense and delay associated with court proceedings. That is why durable powers of attorney are so popular today. They don’t always work to avoid court involvement, however.

Another son, Jack, filed a petition with the Ohio probate courts seeking appointment as his mother’s guardian. Donald objected, arguing that his power of attorney was completely sufficient to handle her business, and that her desire to avoid the court process should be respected. He also insisted that the actual administration of Ms. Simmons’ affairs should be kept private, and that he should not have to provide information to his brother (and their sister, who supported Jack).

The problem with that, according to Jack, was that Donald was mishandling their mother’s money. He owed money to Mrs. Simmons, and was not repaying the loan—and he should have known that was improper, since Donald was a practicing attorney. He also refused to give either of his siblings any information about their mother, claiming attorney-client privilege.

After hearing this evidence, the probate judge decided to appoint Donald as his mother’s guardian. Although there were questions about his handling of her finances, the judge reasoned that at least he would be responsible to account to the court, and other family members could find out what was going on. At the same time, Mrs. Simmons’ wishes about which family member should act would be respected.

Thus, Donald Simmons suddenly found himself appointed to a position that he did not believe to be necessary at all. Jack Simmons, for his part, found that the very person whose actions he had challenged was given authority over Ms. Simmons by the court itself. Jack appealed the decision.

The Ohio Court of Appeals agreed with Jack that Donald should not be appointed as guardian. His behavior and testimony indicated that he had been less than forthright about his handling of Ms. Simmons’ affairs before the court proceeding was initiated, and the judges reasoned that he could not be expected to cooperate any more fully as guardian. He had never asked to be named as guardian, and the appellate court ordered that he should not be appointed. Guardianship of Simmons, October 10, 2003.

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