In Re Guardianship of Luft

I concur in the judgment of reversal but am of the opinion that this court should render a final judgment terminating the guardianship. I am in full accord with my associates in finding that the court properly appointed the guardian in the first instance, but when it appeared that Mrs. Luft's consent was not genuine, and was given under an apparent misapprehension of her legal rights, the guardianship should have been terminated. It should be noted that Mrs. Luft did not voluntarily seek the assistance of the court, but was brought in under a complaint properly filed therein, charging both mental and physical disability. She certainly recognized these as most serious charges, and when she was advised that the court probably would appoint a guardian for mental disability, although there was no evidence to support such a charge, she merely chose the lesser of two evils and gave her consent. Under these circumstances the consent was not of her own free will and accord and, therefore, does not meet the requirements of Section 10507-2, General Code. The appointment of a guardian for physical disability without the ward's consent is an unwarranted abridgment of his right to acquire, possess and protect property and, therefore, in violation of Section 1, Article I of the Constitution of Ohio. Schafer v. Haller, Gdn., 108 Ohio St. 322,140 N.E. 517, 30 A. L. R., 1378.

Further, I am of the opinion that the record clearly shows not only that there is no necessity for a guardian, but that it would be to the best interest of the ward that the guardianship be terminated. Her income from the estate is so limited that it cannot satisfy all her needs, compelling her to accept the services of others without compensation. She, therefore, needs the entire income, even more, and the added expenditures incident to the guardianship should not be imposed upon her. Since she has full mental capacity it must be inferred that she is able to employ others physically qualified to look after her affairs.