[Cite as In re Guardianship of Collins, 2014-Ohio-5750.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




IN THE MATTER OF:                                          :
                                                               CASE NO. CA2013-08-072
        THE GUARDIANSHIP OF                                :
        DEBORAH FAY COLLINS                                         OPINION
                                                           :        12/30/2014

                                                           :

                                                           :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                             Case No. 20132033



Ostrowski Law Firm Co., L.P.A., Andrea G. Ostrowski, 20 South Main Street, Springboro,
Ohio 45066, for appellant, Deborah Fay Collins

Ruffolo, Stone & Dressel, John M. Ruffolo, 7501 Paragon Road, Dayton, Ohio 45459, for
appellee, Cheryl Price



        M. POWELL, J.

        {¶ 1} Appellant, Deborah Fay Collins, appeals a decision of the Warren County Court

of Common Pleas, Probate Division, appointing appellee, Cheryl Page, as guardian of her

person.

        {¶ 2} Page and Collins are half-sisters. Collins lives in a nursing home. On March

12, 2013, Page filed an application in the probate court to be appointed guardian of Collins'

person. At the time, Page was already Collins' attorney-in-fact pursuant to a health care
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power of attorney and a financial power of attorney. With her application, Page also filed a

Statement of Expert Evaluation by a physician. In the expert evaluation, the physician

diagnosed Collins with "schizophrenia, chronic, undifferentiated type, severe." He also stated

that Collins' insight into her mental illness was poor and that she did not think she was ill or

needed to take medications or receive any treatment. The physician further stated that

Collins "could not provide her own basic needs or obtain these from others," and that in his

opinion, the application for guardianship should be granted.

       {¶ 3} The probate court appointed an investigator to assess Collins' need for a

guardian. In a report filed in May 2013, the investigator recommended that a guardian be

appointed for Collins' person. Collins moved for an independent expert evaluation. In a

report filed in July 2013, the independent evaluator also recommended that a guardian be

appointed for Collins. A hearing on the application was held on July 9, 2013. At the hearing,

Collins' attorney argued that in light of the health care power of attorney and the financial

power of attorney, less restrictive alternatives were already in place and thus, a guardianship

was unnecessary.

       {¶ 4} By judgment entry filed on July 9, 2013, the probate court found that Collins

was incompetent by reason of mental illness and therefore incapable of taking proper care of

herself, and appointed Page as guardian of Collins' person.

       {¶ 5} Collins appeals, raising one assignment of error:

       {¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED A

GUARDIANSHIP BECAUSE LESS RESTRICTIVE MEASURES WERE ALREADY IN

PLACE.

       {¶ 7} Collins argues that because the health care power of attorney is a less

restrictive alternative to guardianship, the probate court should have denied Page's



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application and abused its discretion in failing to do so.1

        {¶ 8} When considering an application for appointment of a guardian, a probate court

must (1) first determine that a guardian is required, and (2) also determine who shall be

appointed guardian. In re Guardianship of Smith, 12th Dist. Butler No. CA2013-09-165,

2014-Ohio-2119, ¶ 18. When evidence of less restrictive alternatives to guardianship is

introduced, the probate court must consider such evidence. R.C. 2111.02(C)(5). A probate

court may deny a guardianship if it finds a less restrictive alternative to guardianship exists.

R.C. 2111.02(C)(6).

        {¶ 9} In matters relating to guardianship, the probate court is required to act in the

best interest of the ward. In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551 (12th

Dist.1992). "'Best interests' means the permanent welfare of the ward in his relation to

society in view of all the circumstances." In re Briggs, 9th Dist. Summit No. 18117, 1997 WL

416331, *3 (July 9, 1997). When an alleged incompetent objects to the appointment of a

guardian, as is the case here, the probate court must be very cautious in proceeding. In re

Guardianship of Corless, 2 Ohio App.3d 92, 94 (12th Dist.1981).

        {¶ 10} A probate court has broad discretion in appointing guardians, and decisions

regarding the appointment of a guardian will not be reversed on appeal absent an abuse of

discretion. In re Guardianship of Smith, 2014-Ohio-2119 at ¶ 19.

        {¶ 11} At the hearing, Collins' attorney argued that in light of the health care power of

attorney, a less restrictive alternative was already in place and thus, a guardianship was

unnecessary. The document was not admitted into evidence and there was no testimony

about its contents. The document was, however, briefly examined by the probate court.

During the hearing, Page expressed her concern that the health care power of attorney would


1. Because Page only sought to be appointed guardian of Collins' person, and not of Collins' person and estate,
we will not address the issue of the existence of the financial power of attorney.
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not prevent Collins from leaving the nursing home if such were her intent. Collins' attorney

expressed her belief that Collins "was trying to revoke the Power of Attorney." Before

granting Page's application, the probate court noted that organizations or people sometimes

do not follow or honor a power of attorney, told Collins "it [was] necessary at this point that

somebody acts as [her] representative," and considered the health care power of attorney as

a less restrictive alternative but ultimately concluded it insufficiently protected Collins.

       {¶ 12} We find the probate court did not abuse its discretion in granting Page's

application for guardianship, notwithstanding the health care power of attorney. R.C.

2111.02(C)(5) only requires a probate court to consider the existence of a less restrictive

alternative to guardianship. The statute does not require a probate court to deny an

application for guardianship simply because evidence of less restrictive alternatives is

produced.

       {¶ 13} In addition, it is well-established that a power of attorney may be revoked by the

principal at any time. In re Guardianship of Thomas, 148 Ohio App.3d 11, 18 (10th

Dist.2002). At the hearing, Collins' attorney expressed her belief that Collins "was trying to

revoke the Power of Attorney." The record also shows that Collins does not believe she is ill

or in need of medication or treatment, twice stated during the hearing that she was 100

percent sane, yet also told the court that the person posing as Cheryl Page was in fact Lisa

Page, a woman married to Collins' former brother-in-law, and that the real Cheryl Page was

in prison for attempted murder for trying to kill Collins.

       {¶ 14} In light of the foregoing, we find the probate court did not abuse its discretion in

finding that a guardianship of Collins' person was necessary and that a less restrictive

alternative in the form of the health care power of attorney would not sufficiently protect her

person. The probate court was well within its discretion to conclude that the health care

power of attorney was not or no longer in Collins' best interest.
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{¶ 15} Collins' assignment of error is overruled.

{¶ 16} Judgment affirmed.


RINGLAND, P.J., and S. POWELL, J., concur.




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