Disability Rights Ohio declares victory in groundbreaking case: Right to counsel for those under guardianship upheld by Ohio Supreme Court

January 16, 2013 / guardianship

COLUMBUS, OH – Today, the Ohio Supreme Court unanimously affirmed the right of individuals under guardianship to be represented by a court-appointed lawyer during review hearings to determine whether they continue to need a guardian. Disability Rights Ohio brought this case on behalf of Mr. James McQueen, who resides in a locked nursing facility in Cuyahoga County by order of his court-appointed guardian, who is neither a family member nor a friend. Mr. McQueen no longer wishes to live in the facility and had applied for a review of his case to end guardianship.

Under Ohio law, a guardian is appointed for someone who can no longer make his or her own decisions. Once guardianship is granted, the ward loses legal power over his or her own affairs. Given this significant removal of individual rights, citizens in Ohio have long had a right to an attorney before a guardian is appointed. This case breaks new ground by affirming the continued right of these individuals to a lawyer at all subsequent review hearings. Mr. McQueen will now receive his day in court with an attorney.

“This landmark decision will have a lasting statewide impact,” says Kerstin Sjoberg-Witt, Legal Director of Disability Rights Ohio. “Anyone under a guardianship, both currently and in the future, now has a clear legal right to an attorney when challenging the need for a guardian.”

The court’s decision was unanimous. All of the Justices agreed that the right to a review hearing included the right to a court-appointed attorney under R.C. 2111.49(C) (emphasis added): “a hearing shall be held in accordance with section 2111.02 of the Revised Code to evaluate the continued necessity of the guardianship.” Therefore, to not provide an attorney would make the “accordance with” language “meaningless.”

Additional language in the ruling clarified that where the law provides for an appointed attorney, mandamus is an appropriate avenue to use when a lower court fails to appoint an attorney. Mandamus is a legal remedy that forces a court or other government entity to uphold a law or make a ruling on a law as written.

Disability Rights Ohio thanks Mr. McQueen for his steadfast endurance in this case, which took more than one year. We also thank all of the amici curiae, who provided valuable insight to the court about the importance of Mr. McQueen's right and its impact on the way probate courts operate in Ohio.

Amici Curiae:

  • Advocates for Basic Legal Equality, Inc.
  • Community Legal Aid Services, Inc.
  • Legal Aid of Western Ohio
  • Legal Aid Society of Cleveland
  • Legal Aid Society of Columbus
  • Legal Aid Society of Southwest Ohio
  • National Alliance on Mental Illness (NAMI) of Ohio
  • National Coalition for a Civil Right to Counsel
  • Ohio Poverty Law Center, LLC
  • People First of Ohio
  • Pro Seniors, Inc.
  • Southeastern Ohio Legal Services
  • The Arc of Ohio

R. Jeffery Pollock of McDonald Hopkins LLC served as counsel for The Arc of Ohio, National Alliance on Mental Illness (NAMI) of Ohio, and People First of Ohio in preparing the brief.

Make a Donation

Please give. To the best of your ability.
GIVE NOW