130th Ohio General Assembly
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(127th General Assembly)
(Amended Substitute Senate Bill Number 157)



AN ACT
To amend sections 1337.09, 2109.21, 2111.02, 2111.121, 2307.14, 5305.22, 5711.05, 5711.07, 5907.06, and 5907.09 of the Revised Code to specifically authorize a person to designate a guardian for the person's incompetent adult child and to make corrections regarding incompetent and mentally ill persons.

Be it enacted by the General Assembly of the State of Ohio:

SECTION 1. That sections 1337.09, 2109.21, 2111.02, 2111.121, 2307.14, 5305.22, 5711.05, 5711.07, 5907.06, and 5907.09 of the Revised Code be amended to read as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

(C) A guardian shall be a resident of the county, except that the court may appoint a nonresident of the county who is a resident of this state as guardian of the person, the estate, or both; that a nonresident of the county or of this state may be appointed a guardian, if named in a will by a parent of a minor or if selected by a minor over the age of fourteen years as provided by section 2111.12 of the Revised Code; and that a nonresident of the county or of this state may be appointed a guardian if nominated in or pursuant to a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code or a writing as described in division (A) of section 2111.121 of the Revised Code; and that a nonresident of the county or of this state may be appointed as a guardian if the nonresident was nominated as a guardian in or pursuant to a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code or a writing described in division (A) of section 2111.121 of the Revised Code. A guardian, other than a guardian named in a will by a parent of a minor, selected by a minor over the age of fourteen years, or nominated in or pursuant to such a durable power of attorney or writing, may be removed on proof that the guardian is no longer a resident of the county or state in which the guardian resided at the time of the guardian's appointment, and shall be removed on proof that the guardian is no longer a resident of this state.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sec. 2111.121.  (A) A person may nominate in a writing, as described in this division, another person to be the guardian of the nominator's person, estate, or both or the guardian of the person, the estate, or both, of one or more of the nominator's minor or incompetent adult children, whether born at the time of the execution of the writing or afterward, subject to notice and a hearing pursuant to section 2111.02 of the Revised Code. The nomination is for consideration by a court if proceedings for the appointment of a guardian of the person, the estate, or both, for the person making the nomination or if proceedings for the appointment of a guardian as the guardian of the person, the estate, or both of one or more of the nominator's minor or incompetent adult children are commenced at a later time. The person may authorize, in a writing of that nature, the person nominated as guardian to nominate a successor guardian for consideration by a court. The person also may direct, in a writing of that nature, that bond be waived for a person nominated as guardian in it or nominated as a successor guardian in accordance with an authorization in it.

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

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

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

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

Sec. 2307.14.  As used in this section, "incompetent person" means a 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.

The court shall require a guardian ad litem, or a trustee appointed under section 2307.13 or 2307.131 of the Revised Code, faithfully to discharge the guardian ad litem's or trustee's duty, and upon failure to do so, may remove the guardian ad litem or trustee, and appoint another. The court may fix a compensation for the guardian ad litem's or trustee's services, which shall be taxed in the costs against the minor, the incompetent person, or the unborn persons.

Sec. 5305.22.  (A) Any real estate or interest therein in real estate coming to a person by purchase, inheritance, or otherwise, after the spouse of such the person is adjudged an incompetent a mentally ill person subject to hospitalization by court order and admitted to either a hospital for persons with mental illness in this or any other state of the United States or the psychiatric department of any hospital of the United States, may be conveyed by such the person while such the person's spouse who is an incompetent a mentally ill person subject to hospitalization by court order remains a patient thereof of that hospital, free and clear from any dower right or expectancy of such the person's spouse who is an incompetent a mentally ill person subject to hospitalization by court order. Dower shall not attach to any real estate so acquired and conveyed during the time described in this section in favor of such spouse who is an incompetent a mentally ill person subject to hospitalization by court order. The indorsement upon the instrument of conveyance, by the superintendent of the hospital to which the spouse was admitted, that such the spouse of the person conveying the real estate is an incompetent a mentally ill person thereof subject to hospitalization by court order who has been admitted to that hospital, stating when received therein in that hospital and signed officially by the superintendent, shall be sufficient evidence of the fact that such the spouse of the person conveying the real estate is such incompetent a mentally ill person subject to hospitalization by court order. This indorsement shall be a part of the instrument of conveyance.

(B) As used in this section, "mentally ill person subject to hospitalization by court order" has the same meaning as in section 5122.01 of the Revised Code.

Sec. 5711.05.  As used in this section and, "legal disability" has the same meaning as in section 5711.07 2131.02 of the Revised Code, "incompetent person" means a 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.

Each person shall return all the taxable property of which the person is the owner, except property required by this section or the regulations of the tax commissioner to be returned for the person by a fiduciary; but this section does not authorize any person to omit from the person's return of taxable property the person's interest in investments and other taxable intangible property yielding income owned or held for the person's benefit by a fiduciary and not taxed at the source, or other taxable property so owned or held by a nonresident fiduciary. The return of all the taxable property of a corporation shall be made by the president, a vice-president, or the secretary and by the principal accounting officer, that of a partnership, by a partner, and that of an association, by the managing agent in this state.

All taxable property belonging to the persons named or indicated shall be returned by the fiduciaries named, as follows:

(A) That of a ward, by the ward's guardian;

(B) That of a minor or an incompetent person under a legal disability having no guardian, by the minor's or incompetent person's father, if living, if not, by the minor's or incompetent person's mother, if living, and if neither father nor mother is living, by the person having such property in charge;

(C) That of an estate of a deceased person, by the deceased person's executor, administrator, or personal representative;

(D) That of persons whose assets are in the hands of receivers, assignees for the benefit of creditors, trustees in bankruptcy, or official custodians, by such receivers, assignees, trustees in bankruptcy, or official custodians.

Personal property used in business and taxable property of a nonresident used in and arising out of a business transacted for the nonresident or on the nonresident's behalf in any of the cases mentioned in section 5709.03 of the Revised Code, in the possession or custody of any agent, factor, bailee, or other similar fiduciary, shall be returned by such fiduciary, except as is provided by regulation of the commissioner; but as to such property in the possession, custody, or legal ownership of a trustee the next succeeding paragraph of this section shall be exclusive; provided that a warehouseperson shall not be required to return for taxation personal property consigned to the warehouseperson for the sole purpose of being stored or forwarded, if such warehouseperson has no interest in such property other than a warehouseperson's lien, or any profit to be derived from its sale.

All the taxable property, except investments and other taxable intangible property yielding income, of a person for whose benefit property is held in trust shall be returned by the trustee, and if any beneficiary of such a trust is a minor or an incompetent person under a legal disability residing in this state, and for whom there is no other fiduciary in this state, the commissioner may require such a trustee to return also the investments and other taxable intangible property yielding income held for the benefit of any such beneficiary and not taxed at the source.

All returns made as fiduciaries' returns shall be separate from the fiduciary's return as an individual, firm, association, or corporation and shall set forth the names of all persons toward whom the relation of fiduciary is borne or on whose behalf the returns are made, together with the capacity in which the fiduciary so acts for each of such persons.

The commissioner may adopt and promulgate regulations covering the making of returns not inconsistent with this section or sections 5711.01 to 5711.36 of the Revised Code, so that all property taxable in this state shall be returned for taxation.

Sec. 5711.07.  Personal property used in business shall be listed and assessed in the taxing district in which such business is carried on. If such business is carried on in more than one taxing district in the same county, the return shall set forth the amount of the property used therein which is situated in each taxing district in such county, and the value of all the personal property used in business shall be apportioned to and assessed in each of such taxing districts in proportion to the value of the personal property situated therein. Domestic animals not used in business shall be listed and assessed in the taxing district where kept. Ships, vessels, boats, and aircraft, and shares and interests therein, shall be listed and assessed in the taxing district in which the owner resides. All other taxable property shall be listed and assessed in the municipal corporation in which the owner resides, or, if the owner resides outside a municipal corporation, then in the county in which the owner resides except as provided in sections 5711.01 to 5711.36, inclusive, of the Revised Code. Whenever, under such sections, taxable property required by this section to be listed and assessed in the taxing district or county in which the owner resides is required to be listed by a fiduciary, such property shall be listed and assessed by such fiduciary in the taxing district or county in which such fiduciary resides, or, in the case of joint fiduciaries, in which either such fiduciary resides; but such property belonging to the estate of a deceased resident of this state shall be listed and assessed in the taxing district or county in which the deceased resident resided at the time of death, regardless of the residence of the deceased resident's executors, administrators, or personal representatives, and such property belonging to a ward, minor, incompetent person, or beneficiary of a trust residing in this state, title, custody, or possession of which is vested in a nonresident fiduciary, shall be listed and assessed in the taxing district or county in which such ward, minor, incompetent person, or beneficiary resides.

As used in this section, "incompetent person" means a 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.

Sec. 5907.06.  (A) A mentally ill person with a mental illness that subject to hospitalization by court order whose mental condition causes the person to be dangerous to the community shall not be admitted to a veterans' home. In case If a mentally ill person with such a mental illness subject to hospitalization by court order, through misrepresentation as to the person's condition, is sent to a home, the person shall be returned to, and the expense of the return shall be borne by, the county from which the person came.

(B) As used in this section, "mentally ill person subject to hospitalization by court order" has the same meaning as in section 5122.01 of the Revised Code.

Sec. 5907.09.  (A) When the affidavit referred to in section 5907.08 of the Revised Code is filed, the probate judge shall forthwith determine whether the competence of the resident is a mentally ill person subject to hospitalization by court order. Insofar as applicable, the laws governing in cases of admission to a state hospital for persons with mental illness shall apply. The probate judge shall have the same authority, and may receive and order paid the same fees and costs, as the probate judge would have in the county in which the veteran was a resident at the time of entering the veterans' home.

(B) As used in this section, "mentally ill person subject to hospitalization by court order" has the same meaning as in section 5122.01 of the Revised Code.

SECTION 2. That existing sections 1337.09, 2109.21, 2111.02, 2111.121, 2307.14, 5305.22, 5711.05, 5711.07, 5907.06, and 5907.09 of the Revised Code are hereby repealed.

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