S. B. No. 157 As Introduced

As Introduced

127th General Assembly

Regular Session

2007-2008

S. B. No. 157

Senator Buehrer

Cosponsors: Senators Carey, Faber

A BILL

To amend sections 1337.09, 2109.21, 2111.02, and 1
2111.121 of the Revised Code to specifically 2
authorize a person to designate a guardian for the 3
person's incompetent adult child. 4

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 1337.09, 2109.21, 2111.02, and 5
2111.121 of the Revised Code be amended to read as follows: 6

       Sec. 1337.09. (A) Whenever a principal designates another as 7
attorney in fact by a power of attorney in writing and the writing 8
contains the words "This power of attorney shall not be affected 9
by disability of the principal," "this power of attorney shall not 10
be affected by disability of the principal or lapse of time," or 11
words of similar import, the authority of the attorney in fact is 12
exercisable by the attorney in fact as provided in the written 13
instrument notwithstanding the later disability, incapacity, or 14
adjudged incompetency of the principal and, unless it states a 15
time of termination, notwithstanding the lapse of time since the 16
execution of the instrument. 17

       (B) Whenever a principal designates another the principal's 18
attorney in fact by a power of attorney in writing and the writing 19
expressly states that the power of attorney shall become effective 20
at a later time or upon the occurrence of a specified event, 21
including, but not limited to, the disability, incapacity, or 22
adjudged incompetency of the principal, the attorney in fact may 23
exercise the authority provided to the attorney in fact in the 24
written instrument at the later time or upon the occurrence of the 25
specified event notwithstanding the later disability, incapacity, 26
or adjudged incompetency of the principal and, unless the 27
instrument states a time of termination, notwithstanding the lapse 28
of time since its execution. 29

       (C) All acts done by an attorney in fact pursuant to an 30
instrument as described in division (A) or (B) of this section 31
during any period of disability, incapacity, or adjudged 32
incompetency of the principal shall have the same effect and inure 33
to the benefit of and bind the principal or the principal's heirs, 34
devisees, and personal representatives as if the principal were 35
competent and not disabled or incapacitated. If a guardian 36
thereafter is appointed for the principal and the guardian is not 37
the attorney in fact, the attorney in fact, during the continuance 38
of the appointment, shall account to the guardian rather than the 39
principal. The guardian has the same power the principal would 40
have had if not incompetent, to revoke all or any part of the 41
power and authority of the attorney in fact. 42

       (D) In a durable power of attorney as described in division 43
(A) or (B) of this section, a principal may nominate the attorney 44
in fact or any other person to be the guardian of the principal's 45
person, estate, or both and may nominate the attorney in fact or 46
any other person to be the guardian of the person, the estate, or 47
both of one or more of the principal's minor or incompetent adult 48
children, whether born at the time of the execution of the durable 49
power of attorney or afterward. The nomination is for 50
consideration by a court if proceedings for the appointment of a 51
guardian for the principal's person, estate, or both or if 52
proceedings for the appointment of a guardian of the person, the 53
estate, or both of one or more of the principal's minor or 54
incompetent adult children are commenced at a later time. The 55
principal may authorize in a power of attorney of that nature the 56
person nominated as guardian or the attorney in fact to nominate a 57
successor guardian for consideration by a court. 58

       The principal may direct, in a power of attorney of that 59
nature, that bond be waived for a person nominated as guardian in 60
it or nominated as a successor guardian in accordance with an 61
authorization in it. 62

       Nomination of a person as a guardian or successor guardian of 63
the person, the estate, or both of one or more of the principal's 64
minor or incompetent adult children under this division, and any 65
subsequent appointment of the guardian or successor guardian as 66
guardian under section 2111.02 of the Revised Code, does not 67
vacate the jurisdiction of any other court that previously may 68
have exercised jurisdiction over the person of the minor or 69
incompetent adult child. 70

       The durable power of attorney as described in division (A) or 71
(B) of this section that contains the nomination of a person to be 72
the guardian of the person, the estate, or both of one or more of 73
the principal's minor or incompetent adult children under this 74
division may be filed with the probate court for safekeeping, and 75
the probate court shall designate the nomination as the nomination 76
of a standby guardian. 77

       Sec. 2109.21. (A) An administrator, special administrator, 78
administrator de bonis non, or administrator with the will annexed 79
shall be a resident of this state and shall be removed on proof 80
that the administrator is no longer a resident of this state. 81

       (B)(1) To qualify for appointment as executor or trustee, an 82
executor or a trustee named in a will or nominated in accordance 83
with any power of nomination conferred in a will, may be a 84
resident of this state or, as provided in this division, a 85
nonresident of this state. To qualify for appointment, a 86
nonresident executor or trustee named in, or nominated pursuant 87
to, a will shall be an individual who is related to the maker of 88
the will by consanguinity or affinity, or a person who resides in 89
a state that has statutes or rules that authorize the appointment 90
of a nonresident person who is not related to the maker of a will 91
by consanguinity or affinity, as an executor or trustee when named 92
in, or nominated pursuant to, a will. No such executor or trustee 93
shall be refused appointment or removed solely because the 94
executor or trustee is not a resident of this state. 95

       The court may require that a nonresident executor or trustee 96
named in, or nominated pursuant to, a will assure that all of the 97
assets of the decedent that are in the county at the time of the 98
death of the decedent will remain in the county until distribution 99
or until the court determines that the assets may be removed from 100
the county. 101

       (2) In accordance with this division and section 2129.08 of 102
the Revised Code, the court shall appoint as an ancillary 103
administrator a person who is named in the will of a nonresident 104
decedent, or who is nominated in accordance with any power of 105
nomination conferred in the will of a nonresident decedent, as a 106
general executor of the decedent's estate or as executor of the 107
portion of the decedent's estate located in this state, whether or 108
not the person so named or nominated is a resident of this state. 109

       To qualify for appointment as an ancillary administrator, a 110
person who is not a resident of this state and who is named or 111
nominated as described in this division, shall be an individual 112
who is related to the maker of the will by consanguinity or 113
affinity, or a person who resides in a state that has statutes or 114
rules that authorize the appointment of a nonresident of that 115
state who is not related to the maker of a will by consanguinity 116
or affinity, as an ancillary administrator when the nonresident is 117
named in a will or nominated in accordance with any power of 118
nomination conferred in a will. If a person who is not a resident 119
of this state and who is named or nominated as described in this 120
division so qualifies for appointment as an ancillary 121
administrator and if the provisions of section 2129.08 of the 122
Revised Code are satisfied, the court shall not refuse to appoint 123
the person, and shall not remove the person, as ancillary 124
administrator solely because the person is not a resident of this 125
state. 126

       The court may require that an ancillary administrator who is 127
not a resident of this state and who is named or nominated as 128
described in this division, assure that all of the assets of the 129
decedent that are in the county at the time of the death of the 130
decedent will remain in the county until distribution or until the 131
court determines that the assets may be removed from the county. 132

       (C) A guardian shall be a resident of the county, except that 133
the court may appoint a nonresident of the county who is a 134
resident of this state as guardian of the person, the estate, or 135
both; that a nonresident of the county or of this state may be 136
appointed a guardian, if named in a will by a parent of a minor or 137
if selected by a minor over the age of fourteen years as provided 138
by section 2111.12 of the Revised Code; and that a nonresident of 139
the county or of this state may be appointed a guardian if 140
nominated in or pursuant to a durable power of attorney as 141
described in division (D) of section 1337.09 of the Revised Code 142
or a writing as described in division (A) of section 2111.121 of 143
the Revised Code~~; and that a nonresident of the county or of this~~ 144
~~state may be appointed as a guardian if the nonresident was~~ 145
~~nominated as a guardian in or pursuant to a durable power of~~ 146
~~attorney as described in division (D) of section 1337.09 of the~~ 147
~~Revised Code or a writing described in division (A) of section~~ 148
~~2111.121 of the Revised Code~~. A guardian, other than a guardian 149
named in a will by a parent of a minor, selected by a minor over 150
the age of fourteen years, or nominated in or pursuant to such a 151
durable power of attorney or writing, may be removed on proof that 152
the guardian is no longer a resident of the county or state in 153
which the guardian resided at the time of the guardian's 154
appointment~~, and shall be removed on proof that the guardian is no~~ 155
~~longer a resident of this state~~. 156

       (D) Any fiduciary, whose residence qualifications are not 157
defined in this section, shall be a resident of this state, and 158
shall be removed on proof that the fiduciary is no longer a 159
resident of this state. 160

       (E) Any fiduciary, in order to assist in the carrying out of 161
the fiduciary's fiduciary duties, may employ agents who are not 162
residents of the county or of this state. 163

       Sec. 2111.02. (A) When found necessary, the probate court on 164
its own motion or on application by any interested party shall 165
appoint, subject to divisions (C) and (D) of this section and to 166
section 2109.21 and division (B) of section 2111.121 of the 167
Revised Code, a guardian of the person, the estate, or both, of a 168
minor or incompetent, provided the person for whom the guardian is 169
to be appointed is a resident of the county or has a legal 170
settlement in the county and, except in the case of a minor, has 171
had the opportunity to have the assistance of counsel in the 172
proceeding for the appointment of such guardian. An interested 173
party includes, but is not limited to, a person nominated in a 174
durable power of attorney as described in division (D) of section 175
1337.09 of the Revised Code or in a writing as described in 176
division (A) of section 2111.121 of the Revised Code. 177

       Except when the guardian of an incompetent is an agency under 178
contract with the department of mental retardation and 179
developmental disabilities for the provision of protective 180
services under sections 5123.55 to 5123.59 of the Revised Code, 181
the guardian of an incompetent, by virtue of such appointment, 182
shall be the guardian of the minor children of the guardian's 183
ward, unless the court appoints some other person as their 184
guardian. 185

       When the primary purpose of the appointment of a guardian is, 186
or was, the collection, disbursement, or administration of moneys 187
awarded by the veterans administration to the ward, or assets 188
derived from such moneys, no court costs shall be charged in the 189
proceeding for the appointment or in any subsequent proceedings 190
made in pursuance of the appointment, unless the value of the 191
estate, including the moneys then due under the veterans 192
administration award, exceeds one thousand five hundred dollars. 193

       (B)(1) If the probate court finds it to be in the best 194
interest of an incompetent or minor, it may appoint pursuant to 195
divisions (A) and (C) of this section, on its own motion or on 196
application by an interested party, a limited guardian with 197
specific limited powers. The sections of the Revised Code, rules, 198
and procedures governing guardianships apply to a limited 199
guardian, except that the order of appointment and letters of 200
authority of a limited guardian shall state the reasons for, and 201
specify the limited powers of, the guardian. The court may appoint 202
a limited guardian for a definite or indefinite period. An 203
incompetent or minor for whom a limited guardian has been 204
appointed retains all of the incompetent's or minor's rights in 205
all areas not affected by the court order appointing the limited 206
guardian. 207

       (2) If a guardian appointed pursuant to division (A) of this 208
section is temporarily or permanently removed or resigns, and if 209
the welfare of the ward requires immediate action, at any time 210
after the removal or resignation, the probate court may appoint, 211
ex parte and with or without notice to the ward or interested 212
parties, an interim guardian for a maximum period of fifteen days. 213
If the court appoints the interim guardian ex parte or without 214
notice to the ward, the court, at its first opportunity, shall 215
enter upon its journal with specificity the reason for acting ex 216
parte or without notice, and, as soon as possible, shall serve 217
upon the ward a copy of the order appointing the interim guardian. 218
For good cause shown, after notice to the ward and interested 219
parties and after hearing, the court may extend an interim 220
guardianship for a specified period, but not to exceed an 221
additional thirty days. 222

       (3) If a minor or incompetent has not been placed under a 223
guardianship pursuant to division (A) of this section and if an 224
emergency exists, and if it is reasonably certain that immediate 225
action is required to prevent significant injury to the person or 226
estate of the minor or incompetent, at any time after it receives 227
notice of the emergency, the court, ex parte, may issue any order 228
that it considers necessary to prevent injury to the person or 229
estate of the minor or incompetent, or may appoint an emergency 230
guardian for a maximum period of seventy-two hours. A written copy 231
of any order issued by a court under this division shall be served 232
upon the incompetent or minor as soon as possible after its 233
issuance. Failure to serve such an order after its issuance or 234
prior to the taking of any action under its authority does not 235
invalidate the order or the actions taken. The powers of an 236
emergency guardian shall be specified in the letters of 237
appointment, and shall be limited to those powers that are 238
necessary to prevent injury to the person or estate of the minor 239
or incompetent. If the court acts ex parte or without notice to 240
the minor or incompetent, the court, at its first opportunity, 241
shall enter upon its journal a record of the case and, with 242
specificity, the reason for acting ex parte or without notice. For 243
good cause shown, after notice to the minor or incompetent and 244
interested parties, and after hearing, the court may extend an 245
emergency guardianship for a specified period, but not to exceed 246
an additional thirty days. 247

       (C) Prior to the appointment of a guardian or limited 248
guardian under division (A) or (B)(1) of this section, the court 249
shall conduct a hearing on the matter of the appointment. The 250
hearing shall be conducted in accordance with all of the 251
following: 252

       (1) The proposed guardian or limited guardian shall appear at 253
the hearing and, if appointed, shall swear under oath that the 254
proposed guardian or limited guardian has made and will continue 255
to make diligent efforts to file a true inventory in accordance 256
with section 2111.14 of the Revised Code and find and report all 257
assets belonging to the estate of the ward and that the proposed 258
guardian or limited guardian faithfully and completely will 259
fulfill the other duties of guardian, including the filing of 260
timely and accurate reports and accountings; 261

       (2) If the hearing is conducted by a referee, the procedures 262
set forth in Civil Rule 53 shall be followed; 263

       (3) If the hearing concerns the appointment of a guardian or 264
limited guardian for an alleged incompetent, the burden of proving 265
incompetency shall be by clear and convincing evidence; 266

       (4) Upon request of the applicant, the alleged incompetent 267
for whom the appointment is sought or the alleged incompetent's 268
counsel, or any interested party, a recording or record of the 269
hearing shall be made; 270

       (5) Evidence of a less restrictive alternative to 271
guardianship may be introduced, and when introduced, shall be 272
considered by the court; 273

       (6) The court may deny a guardianship based upon a finding 274
that a less restrictive alternative to guardianship exists; 275

       (7) If the hearing concerns the appointment of a guardian or 276
limited guardian for an alleged incompetent, the alleged 277
incompetent has all of the following rights: 278

       (a) The right to be represented by independent counsel of his 279
choice; 280

       (b) The right to have a friend or family member of his choice 281
present; 282

       (c) The right to have evidence of an independent expert 283
evaluation introduced; 284

       (d) If the alleged incompetent is indigent, upon his request: 285

       (i) The right to have counsel and an independent expert 286
evaluator appointed at court expense; 287

       (ii) If the guardianship, limited guardianship, or standby 288
guardianship decision is appealed, the right to have counsel 289
appointed and necessary transcripts for appeal prepared at court 290
expense. 291

       (D)(1) When a person has been nominated to be a guardian of 292
the estate of a minor in or pursuant to a durable power of 293
attorney as described in division (D) of section 1337.09 of the 294
Revised Code or a writing as described in division (A) of section 295
2111.121 of the Revised Code, the person nominated has preference 296
in appointment over a person selected by the minor. A person who 297
has been nominated to be a guardian of the person of a minor in or 298
pursuant to a durable power of attorney or writing of that nature 299
does not have preference in appointment over a person selected by 300
the minor, but the probate court may appoint the person named in 301
the durable power of attorney or the writing, the person selected 302
by the minor, or another person as guardian of the person of the 303
minor. 304

       (2) A person nominated as a guardian of an incompetent adult 305
child pursuant to section 1337.09 or 2111.121 of the Revised Code 306
shall have preference in appointment over a person applying to be 307
guardian if the person nominated is competent, suitable, and 308
willing to accept the appointment, and if the incompetent adult 309
child does not have a spouse or an adult child and has not 310
designated a guardian prior to the court finding the adult child 311
incompetent. 312

       Sec. 2111.121. (A) A person may nominate in a writing, as 313
described in this division, another person to be the guardian of 314
the nominator's person, estate, or both or the guardian of the 315
person, the estate, or both, of one or more of the nominator's 316
minor or incompetent adult children, whether born at the time of 317
the execution of the writing or afterward. The nomination is for 318
consideration by a court if proceedings for the appointment of a 319
guardian of the person, the estate, or both, for the person making 320
the nomination or if proceedings for the appointment of a guardian 321
as the guardian of the person, the estate, or both of one or more 322
of the nominator's minor or incompetent adult children are 323
commenced at a later time. The person may authorize, in a writing 324
of that nature, the person nominated as guardian to nominate a 325
successor guardian for consideration by a court. The person also 326
may direct, in a writing of that nature, that bond be waived for a 327
person nominated as guardian in it or nominated as a successor 328
guardian in accordance with an authorization in it. 329

       To be effective as a nomination, the writing shall be signed 330
by the person making the nomination in the presence of two 331
witnesses; signed by the witnesses; contain, immediately prior to 332
their signatures, an attestation of the witnesses that the person 333
making the nomination signed the writing in their presence; and be 334
acknowledged by the person making the nomination before a notary 335
public. 336

       (B) If a person has nominated, in a writing as described in 337
division (A) of this section or in a durable power of attorney as 338
described in division (D) of section 1337.09 of the Revised Code, 339
another person to be the guardian of the nominator's person, 340
estate, or both, and proceedings for the appointment of a guardian 341
for the person are commenced at a later time, the court involved 342
shall appoint the person nominated as guardian in the writing or 343
durable power of attorney most recently executed if the person 344
nominated is competent, suitable, and willing to accept the 345
appointment. If the writing or durable power of attorney contains 346
a waiver of bond, the court shall waive bond of the person 347
nominated as guardian unless it is of the opinion that the 348
interest of the trust demands it. 349

       (C) Nomination of a person as a guardian or successor 350
guardian of the person, the estate, or both of one or more of the 351
nominator's minor or incompetent adult children under division (A) 352
of this section, and any subsequent appointment of the guardian or 353
successor guardian as guardian under section 2111.02 of the 354
Revised Code, does not vacate the jurisdiction of any other court 355
that previously may have exercised jurisdiction over the person of 356
the minor or incompetent adult child. 357

       (D) The writing containing the nomination of a person to be 358
the guardian of the person, the estate, or both of one or more of 359
the nominator's minor or incompetent adult children under division 360
(A) of this section may be filed with the probate court for 361
safekeeping, and the probate court shall designate the nomination 362
as the nomination of a standby guardian. 363

       Section 2. That existing sections 1337.09, 2109.21, 2111.02, 364
and 2111.121 of the Revised Code are hereby repealed. 365

Section 1. That sections 1337.09, 2109.21, 2111.02, and	5
2111.121 of the Revised Code be amended to read as follows:	6

Sec. 1337.09. (A) Whenever a principal designates another as	7
attorney in fact by a power of attorney in writing and the writing	8
contains the words "This power of attorney shall not be affected	9
by disability of the principal," "this power of attorney shall not	10
be affected by disability of the principal or lapse of time," or	11
words of similar import, the authority of the attorney in fact is	12
exercisable by the attorney in fact as provided in the written	13
instrument notwithstanding the later disability, incapacity, or	14
adjudged incompetency of the principal and, unless it states a	15
time of termination, notwithstanding the lapse of time since the	16
execution of the instrument.	17

(B) Whenever a principal designates another the principal's	18
attorney in fact by a power of attorney in writing and the writing	19
expressly states that the power of attorney shall become effective	20
at a later time or upon the occurrence of a specified event,	21
including, but not limited to, the disability, incapacity, or	22
adjudged incompetency of the principal, the attorney in fact may	23
exercise the authority provided to the attorney in fact in the	24
written instrument at the later time or upon the occurrence of the	25
specified event notwithstanding the later disability, incapacity,	26
or adjudged incompetency of the principal and, unless the	27
instrument states a time of termination, notwithstanding the lapse	28
of time since its execution.	29

(C) All acts done by an attorney in fact pursuant to an	30
instrument as described in division (A) or (B) of this section	31
during any period of disability, incapacity, or adjudged	32
incompetency of the principal shall have the same effect and inure	33
to the benefit of and bind the principal or the principal's heirs,	34
devisees, and personal representatives as if the principal were	35
competent and not disabled or incapacitated. If a guardian	36
thereafter is appointed for the principal and the guardian is not	37
the attorney in fact, the attorney in fact, during the continuance	38
of the appointment, shall account to the guardian rather than the	39
principal. The guardian has the same power the principal would	40
have had if not incompetent, to revoke all or any part of the	41
power and authority of the attorney in fact.	42

(D) In a durable power of attorney as described in division	43
(A) or (B) of this section, a principal may nominate the attorney	44
in fact or any other person to be the guardian of the principal's	45
person, estate, or both and may nominate the attorney in fact or	46
any other person to be the guardian of the person, the estate, or	47
both of one or more of the principal's minor or incompetent adult	48
children, whether born at the time of the execution of the durable	49
power of attorney or afterward. The nomination is for	50
consideration by a court if proceedings for the appointment of a	51
guardian for the principal's person, estate, or both or if	52
proceedings for the appointment of a guardian of the person, the	53
estate, or both of one or more of the principal's minor or	54
incompetent adult children are commenced at a later time. The	55
principal may authorize in a power of attorney of that nature the	56
person nominated as guardian or the attorney in fact to nominate a	57
successor guardian for consideration by a court.	58

The principal may direct, in a power of attorney of that	59
nature, that bond be waived for a person nominated as guardian in	60
it or nominated as a successor guardian in accordance with an	61
authorization in it.	62

Nomination of a person as a guardian or successor guardian of	63
the person, the estate, or both of one or more of the principal's	64
minor or incompetent adult children under this division, and any	65
subsequent appointment of the guardian or successor guardian as	66
guardian under section 2111.02 of the Revised Code, does not	67
vacate the jurisdiction of any other court that previously may	68
have exercised jurisdiction over the person of the minor or	69
incompetent adult child.	70

The durable power of attorney as described in division (A) or	71
(B) of this section that contains the nomination of a person to be	72
the guardian of the person, the estate, or both of one or more of	73
the principal's minor or incompetent adult children under this	74
division may be filed with the probate court for safekeeping, and	75
the probate court shall designate the nomination as the nomination	76
of a standby guardian.	77

Sec. 2109.21. (A) An administrator, special administrator,	78
administrator de bonis non, or administrator with the will annexed	79
shall be a resident of this state and shall be removed on proof	80
that the administrator is no longer a resident of this state.	81

(B)(1) To qualify for appointment as executor or trustee, an	82
executor or a trustee named in a will or nominated in accordance	83
with any power of nomination conferred in a will, may be a	84
resident of this state or, as provided in this division, a	85
nonresident of this state. To qualify for appointment, a	86
nonresident executor or trustee named in, or nominated pursuant	87
to, a will shall be an individual who is related to the maker of	88
the will by consanguinity or affinity, or a person who resides in	89
a state that has statutes or rules that authorize the appointment	90
of a nonresident person who is not related to the maker of a will	91
by consanguinity or affinity, as an executor or trustee when named	92
in, or nominated pursuant to, a will. No such executor or trustee	93
shall be refused appointment or removed solely because the	94
executor or trustee is not a resident of this state.	95

The court may require that a nonresident executor or trustee	96
named in, or nominated pursuant to, a will assure that all of the	97
assets of the decedent that are in the county at the time of the	98
death of the decedent will remain in the county until distribution	99
or until the court determines that the assets may be removed from	100
the county.	101

(2) In accordance with this division and section 2129.08 of	102
the Revised Code, the court shall appoint as an ancillary	103
administrator a person who is named in the will of a nonresident	104
decedent, or who is nominated in accordance with any power of	105
nomination conferred in the will of a nonresident decedent, as a	106
general executor of the decedent's estate or as executor of the	107
portion of the decedent's estate located in this state, whether or	108
not the person so named or nominated is a resident of this state.	109

To qualify for appointment as an ancillary administrator, a	110
person who is not a resident of this state and who is named or	111
nominated as described in this division, shall be an individual	112
who is related to the maker of the will by consanguinity or	113
affinity, or a person who resides in a state that has statutes or	114
rules that authorize the appointment of a nonresident of that	115
state who is not related to the maker of a will by consanguinity	116
or affinity, as an ancillary administrator when the nonresident is	117
named in a will or nominated in accordance with any power of	118
nomination conferred in a will. If a person who is not a resident	119
of this state and who is named or nominated as described in this	120
division so qualifies for appointment as an ancillary	121
administrator and if the provisions of section 2129.08 of the	122
Revised Code are satisfied, the court shall not refuse to appoint	123
the person, and shall not remove the person, as ancillary	124
administrator solely because the person is not a resident of this	125
state.	126

The court may require that an ancillary administrator who is	127
not a resident of this state and who is named or nominated as	128
described in this division, assure that all of the assets of the	129
decedent that are in the county at the time of the death of the	130
decedent will remain in the county until distribution or until the	131
court determines that the assets may be removed from the county.	132

(C) A guardian shall be a resident of the county, except that	133
the court may appoint a nonresident of the county who is a	134
resident of this state as guardian of the person, the estate, or	135
both; that a nonresident of the county or of this state may be	136
appointed a guardian, if named in a will by a parent of a minor or	137
if selected by a minor over the age of fourteen years as provided	138
by section 2111.12 of the Revised Code; and that a nonresident of	139
the county or of this state may be appointed a guardian if	140
nominated in or pursuant to a durable power of attorney as	141
described in division (D) of section 1337.09 of the Revised Code	142
or a writing as described in division (A) of section 2111.121 of	143
the Revised Code~~; and that a nonresident of the county or of this~~	144
~~state may be appointed as a guardian if the nonresident was~~	145
~~nominated as a guardian in or pursuant to a durable power of~~	146
~~attorney as described in division (D) of section 1337.09 of the~~	147
~~Revised Code or a writing described in division (A) of section~~	148
~~2111.121 of the Revised Code~~. A guardian, other than a guardian	149
named in a will by a parent of a minor, selected by a minor over	150
the age of fourteen years, or nominated in or pursuant to such a	151
durable power of attorney or writing, may be removed on proof that	152
the guardian is no longer a resident of the county or state in	153
which the guardian resided at the time of the guardian's	154
appointment~~, and shall be removed on proof that the guardian is no~~	155
~~longer a resident of this state~~.	156

(D) Any fiduciary, whose residence qualifications are not	157
defined in this section, shall be a resident of this state, and	158
shall be removed on proof that the fiduciary is no longer a	159
resident of this state.	160

(E) Any fiduciary, in order to assist in the carrying out of	161
the fiduciary's fiduciary duties, may employ agents who are not	162
residents of the county or of this state.	163

Sec. 2111.02. (A) When found necessary, the probate court on	164
its own motion or on application by any interested party shall	165
appoint, subject to divisions (C) and (D) of this section and to	166
section 2109.21 and division (B) of section 2111.121 of the	167
Revised Code, a guardian of the person, the estate, or both, of a	168
minor or incompetent, provided the person for whom the guardian is	169
to be appointed is a resident of the county or has a legal	170
settlement in the county and, except in the case of a minor, has	171
had the opportunity to have the assistance of counsel in the	172
proceeding for the appointment of such guardian. An interested	173
party includes, but is not limited to, a person nominated in a	174
durable power of attorney as described in division (D) of section	175
1337.09 of the Revised Code or in a writing as described in	176
division (A) of section 2111.121 of the Revised Code.	177

Except when the guardian of an incompetent is an agency under	178
contract with the department of mental retardation and	179
developmental disabilities for the provision of protective	180
services under sections 5123.55 to 5123.59 of the Revised Code,	181
the guardian of an incompetent, by virtue of such appointment,	182
shall be the guardian of the minor children of the guardian's	183
ward, unless the court appoints some other person as their	184
guardian.	185

When the primary purpose of the appointment of a guardian is,	186
or was, the collection, disbursement, or administration of moneys	187
awarded by the veterans administration to the ward, or assets	188
derived from such moneys, no court costs shall be charged in the	189
proceeding for the appointment or in any subsequent proceedings	190
made in pursuance of the appointment, unless the value of the	191
estate, including the moneys then due under the veterans	192
administration award, exceeds one thousand five hundred dollars.	193

(B)(1) If the probate court finds it to be in the best	194
interest of an incompetent or minor, it may appoint pursuant to	195
divisions (A) and (C) of this section, on its own motion or on	196
application by an interested party, a limited guardian with	197
specific limited powers. The sections of the Revised Code, rules,	198
and procedures governing guardianships apply to a limited	199
guardian, except that the order of appointment and letters of	200
authority of a limited guardian shall state the reasons for, and	201
specify the limited powers of, the guardian. The court may appoint	202
a limited guardian for a definite or indefinite period. An	203
incompetent or minor for whom a limited guardian has been	204
appointed retains all of the incompetent's or minor's rights in	205
all areas not affected by the court order appointing the limited	206
guardian.	207

(2) If a guardian appointed pursuant to division (A) of this	208
section is temporarily or permanently removed or resigns, and if	209
the welfare of the ward requires immediate action, at any time	210
after the removal or resignation, the probate court may appoint,	211
ex parte and with or without notice to the ward or interested	212
parties, an interim guardian for a maximum period of fifteen days.	213
If the court appoints the interim guardian ex parte or without	214
notice to the ward, the court, at its first opportunity, shall	215
enter upon its journal with specificity the reason for acting ex	216
parte or without notice, and, as soon as possible, shall serve	217
upon the ward a copy of the order appointing the interim guardian.	218
For good cause shown, after notice to the ward and interested	219
parties and after hearing, the court may extend an interim	220
guardianship for a specified period, but not to exceed an	221
additional thirty days.	222

(3) If a minor or incompetent has not been placed under a	223
guardianship pursuant to division (A) of this section and if an	224
emergency exists, and if it is reasonably certain that immediate	225
action is required to prevent significant injury to the person or	226
estate of the minor or incompetent, at any time after it receives	227
notice of the emergency, the court, ex parte, may issue any order	228
that it considers necessary to prevent injury to the person or	229
estate of the minor or incompetent, or may appoint an emergency	230
guardian for a maximum period of seventy-two hours. A written copy	231
of any order issued by a court under this division shall be served	232
upon the incompetent or minor as soon as possible after its	233
issuance. Failure to serve such an order after its issuance or	234
prior to the taking of any action under its authority does not	235
invalidate the order or the actions taken. The powers of an	236
emergency guardian shall be specified in the letters of	237
appointment, and shall be limited to those powers that are	238
necessary to prevent injury to the person or estate of the minor	239
or incompetent. If the court acts ex parte or without notice to	240
the minor or incompetent, the court, at its first opportunity,	241
shall enter upon its journal a record of the case and, with	242
specificity, the reason for acting ex parte or without notice. For	243
good cause shown, after notice to the minor or incompetent and	244
interested parties, and after hearing, the court may extend an	245
emergency guardianship for a specified period, but not to exceed	246
an additional thirty days.	247

(C) Prior to the appointment of a guardian or limited	248
guardian under division (A) or (B)(1) of this section, the court	249
shall conduct a hearing on the matter of the appointment. The	250
hearing shall be conducted in accordance with all of the	251
following:	252

(1) The proposed guardian or limited guardian shall appear at	253
the hearing and, if appointed, shall swear under oath that the	254
proposed guardian or limited guardian has made and will continue	255
to make diligent efforts to file a true inventory in accordance	256
with section 2111.14 of the Revised Code and find and report all	257
assets belonging to the estate of the ward and that the proposed	258
guardian or limited guardian faithfully and completely will	259
fulfill the other duties of guardian, including the filing of	260
timely and accurate reports and accountings;	261

(2) If the hearing is conducted by a referee, the procedures	262
set forth in Civil Rule 53 shall be followed;	263

(3) If the hearing concerns the appointment of a guardian or	264
limited guardian for an alleged incompetent, the burden of proving	265
incompetency shall be by clear and convincing evidence;	266

(4) Upon request of the applicant, the alleged incompetent	267
for whom the appointment is sought or the alleged incompetent's	268
counsel, or any interested party, a recording or record of the	269
hearing shall be made;	270

(5) Evidence of a less restrictive alternative to	271
guardianship may be introduced, and when introduced, shall be	272
considered by the court;	273

(6) The court may deny a guardianship based upon a finding	274
that a less restrictive alternative to guardianship exists;	275