[Cite as In re Al Bani, 2014-Ohio-5783.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

IN THE MATTER OF 

THE GUARDIANSHIP OF: 

USAMAH AL BANI 

 

C.A. No. 27348 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. 2013 GA 172 

DECISION AND JOURNAL ENTRY

Dated: December 31, 2014 

 

WHITMORE, Judge. 

{¶1} Appellant, Usamah Al Bani, appeals from the judgment of the Summit County 

Court of Common Pleas, Probate Division, appointing a guardian over his person. This Court 

affirms. 

I 

{¶2} At the time of the probate court hearing, Al Bani was homeless, 69 years old, 

wheelchair dependent, and required extensive assistance with his activities of daily living. Al 

Bani had spent over 30 years in prison before settling in Akron, Ohio. According to Al Bani, he 

suffered two strokes prior to 2011, following which he rehabilitated himself while still in prison. 

In addition to his history of strokes, Al Bani has a number of other physical ailments, including 

hypertension, dysarthria, Crohn’s disease, hyperlipidemia, asthma, and chronic anemia. Al Bani 

also suffers from depression and psychotic disorder not otherwise specified. His family is 

estranged and has not been involved in his care. 
2 

 

{¶3} In April 2012, Al Bani suffered a third stroke that was “more major than the other 

two.” He was initially treated at Akron City Hospital, but left against medical advice. He was 

unable to care for himself and was re-hospitalized. He was sent to Edwin Shaw Rehab, but again 

left against medical advice. He also left Summa Villa Nursing Home against medical advice. He 

was re-hospitalized at Akron General Medical Center. Eventually, he was transferred to 

Wayside Farm Nursing and Rehabilitation Center (“Wayside Farm”). 

{¶4} Following Wayside Farm’s request that a guardian be appointed, Attorney 

Barbara Heinzerling applied for a guardianship over the person of Al Bani. The matter 

proceeded to a hearing before a magistrate. The magistrate considered the statement of expert 

evaluation submitted by Dr. Loren Pool, the medical director for Wayside Farm, and the report 

submitted by the probate court investigator. In addition, the magistrate heard testimony from 

Dottie Pastis, a social worker, Charity Spade, a restorative nurse, and Al Bani. The magistrate 

recommended a guardianship over the person, finding “by clear and convincing evidence that 

Usamah Al Bani is an incompetent person due to the strokes he has suffered, his lack of insight 

and judgment, poor decision making, and mental illness.” 

{¶5} Al Bani filed objections to the magistrate’s decision. The trial court overruled his 

objections, adopted the magistrate’s decision, and appointed Heinzerling guardian over the 

person of Al Bani. Al Bani now appeals raising three assignments of error for our review. For 

ease of the analysis, we rearrange and consolidate some assignments of error. 

II 

Assignment of Error Number One

THE TRIAL COURT ERRED BY CONCLUDING THAT A MULTITUDE OF 

AILMENTS UNRELATED TO THE PROPOSED WARD’S COMPETENCE 

RENDERED THE WARD INCOMPETENT. 
3 

 

Assignment of Error Number Three

THE TRIAL COURT ERRED BY CONSIDERING THE PROPOSED WARD’S 

CHARACTER TRAITS AS EVIDENCE OF INCOMPETENCE. 

{¶6} We address Al Bani’s first and third assignments of error together because both 

challenge the relevance of information that the probate court considered in determining that he 

was incompetent. 

{¶7} “The purpose of guardianship hearings is to gather information in order to 

determine the best interests of the prospective ward.” In re Guardianship & Conservatorship of 

Stancin, 10th Dist. Franklin No. 02AP-637, 2003-Ohio-1106, ¶ 12. “The process to appoint a 

guardian is not adversarial in nature.” In re Guardianship of Berkes, 9th Dist. Summit No. 

19225, 1999 WL 193882, *3 (Mar. 31, 1999). The probate court has broad discretion in matters 

involving the appointment of a guardian. In re Guardianship of Slone, 3d Dist. Crawford No. 3-

04-13, 2004-Ohio-6041, ¶ 7. 

{¶8} Al Bani first argues that “[n]one of [his physical ailments] are relevant to the issue 

of his competence.” Under the guardianship statutes, “[i]ncompetent” is defined as “any person 

who is so mentally impaired as a result of a mental or physical illness or disability * * * that the 

person is incapable of taking proper care of the person’s self * * *.” (Emphasis added). R.C. 

2111.01(D). Thus, to the extent that a physical illness or disability causes a mental impairment, 

that physical ailment is relevant in determining whether the individual is incompetent. 

{¶9} In overruling Al Bani’s objections1 to the magistrate’s decision, the probate court 

aptly noted, “[w]hile physical impairment alone is not sufficient for a declaration of 

incompetency, it is relevant to the proposed ward’s incompetency when considered as a source 

 

1

 We note that Al Bani’s brief to this Court is virtually identical to his objections to the 

magistrate’s decision. 
4 

 

of mental impairment.” Dr. Pool opined in his expert evaluation that Al Bani’s stroke was one 

cause of his mental impairment. Al Bani acknowledges that “[m]any of [his] ailments are related 

to [his] stroke.” While Al Bani’s other physical ailments were mentioned by the probate court, a 

review of its decision reveals that Al Bani’s “stroke and stroke related medical traits” were the 

only physical ailments considered in its determination that he was incompetent. 

{¶10} Because the statute defining incompetence specifies that a mental impairment can 

be the “result of mental or physical illness or disability” and Dr. Pool opined that Al Bani’s 

stroke caused his mental impairment, the trial court did not err in considering this in its 

determination that he was incompetent. (Emphasis added.) R.C. 2111.01(D). Moreover, given 

that Al Bani concedes that his mental illnesses could be considered by the trial court, he has not 

demonstrated any prejudice. 

{¶11} Al Bani also argues that the following items were irrelevant and should not have 

been considered by the probate court: (1) that he cussed at a resident, (2) that he threw a ball at a 

resident, (3) that he threatened to break the plexiglass to a fire extinguisher, and (4) that he has 

no remorse or regret for his actions. These specific incidents occurred within a month and a half 

of the magistrate’s hearing. 

{¶12} Dottie Pastis, the social worker at Wayside Farm who oversaw Al Bani’s anger 

management classes, testified regarding his behavior there. Pastis testified that Al Bani stated 

that “he was going to break the plexiglass from the fire extinguisher and make a weapon out of 

it” on September 20. She also noted that, on October 1, he swore at someone who was lighting 

his cigarette. Then, on October 23, “he threw a ball and hit another resident in the back as he 

was walking away from him.” Pastis further testified that Al Bani stated he had no remorse for 

his actions. The application for the appointment of a guardian was heard on October 30, 2013. 
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{¶13} Under the facts of this case, we cannot say that the probate court abused its 

discretion in considering Al Bani’s recent behavior when deciding whether he was incompetent. 

{¶14} Al Bani’s first and third assignments of error are overruled. 

Assignment of Error Number Two

THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY WEIGH THE 

EVIDENCE THAT THE PROPOSED WARD IS COMPETENT AND 

CAPABLE OF INDEPENDENT LIVING. 

{¶15} Under his second assignment of error, Al Bani argues the probate court “fail[ed] 

to place sufficient weight on [his] evidence that he is capable of sound decision making and 

independent living.” We disagree. 

{¶16} A probate court’s decision to appoint a guardian will not be reversed absent an 

abuse of discretion. In re Guardianship of Borland, 5th Dist. Stark No. 2002CA00410, 2003-

Ohio-6870, ¶ 8. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, 

or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “A 

reviewing court will not reverse a judgment appointing a guardian as an abuse of discretion if it 

is supported by competent, credible evidence.” In re Guardianship of Waller, 1st Dist. Hamilton 

No. C-100131, 2011-Ohio-313, ¶ 16. 

{¶17} Dr. Pool, a licensed physician, opined that Al Bani was mentally impaired and 

“not capable of taking proper care of himself or his property.” Dr. Pool noted that Al Bani was 

homeless and had no support system of family or friends. Dr. Pool further noted that Al Bani’s 

“story changes with the telling.” Dr. Pool noted that, while at Wayside, Al Bani had thrown 

chairs and a urinal and had threatened to kill an aide. Dr. Pool opined that Al Bani had a 

“diminished capacity for appropriate decision-making and judgment.” Dr. Pool further opined 
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that the proposed guardianship should be granted and concluded, “[w]ithout a guardian, Mr. Al 

Bani will return to the revolving door care that has limited his recovery.” 

{¶18} The probate court investigator also reported that Al Bani had a history of putting 

himself at risk due to poor judgment and decision making. During her interview of Al Bani, she 

noted impairments in concentration, comprehension, and judgment. In regards to activities of 

daily living, she indicated that he was incapable of dressing, transferring from bed, toileting, 

bathing, shopping, driving, and taking his medications. She noted there were indicators of selfneglect, that his family was estranged and living out of state, that he was noncompliant with his 

medications and had a history of leaving facilities against medical advice. The court investigator 

recommended that a guardianship was necessary over the person of Al Bani. 

{¶19} Pastis, a social worker, chronicled Al Bani’s history leading up to his admission at 

Wayside Farm and his behavior there. She testified that, following his most recent stroke, Al 

Bani went against medical advice and left multiple medical facilities and that he remained 

noncompliant with his medications. She noted that he has no family support and had lost his 

apartment that he had been sharing with a 21-year-old woman. Pastis indicated that this woman 

had access to his bank card and withdrew all of his funds from his account. Upon his admission 

to Wayside Farm, a large machete knife was found in his belongings. In addition, during his 

stay, he had thrown various items at staff members and residents, and remarked that “there are 

plenty of things in this facility that you can make a weapon out of.” Pastis testified that Al Bani 

was attending anger management classes and, although he now behaved appropriately with her, 

some of his statements concerned her. While Pastis was testifying regarding Al Bani’s anger 

management classes, he interrupted her to state that the answers he gives are “[t]extbook.” Pastis 

explained that “[e]ven though he knows what to say in anger management, it’s doing him no 
7 

 

good.” Pastis further testified that Al Bani has mental health diagnoses, but he refuses to admit 

that he has them. Pastis voiced concerns regarding Al Bani’s strokes, homelessness, leaving 

medical facilities against medical advice, and being vulnerable to being taken advantage of in the 

community. 

{¶20} Charity Spade, a restorative nurse, testified that Al Bani spends the majority of his 

time in a wheelchair and is an “extensive assist” for activities of daily living. Spade reported 

that, although Al Bani could not walk without the assistance of others, he had requested a 

walker. She testified that he was a “very, very high fall risk.” She indicated that he often goes 

backwards in his wheelchair because it is easier, but he does not appreciate the safety risk this 

poses and that he had run into her before. Spade also testified that it was recommended that Al 

Bani take a “swallowing test” because he was coughing on his pills and food. Al Bani refused 

the test, and as a result, the home thickens his liquids and placed him on a mechanically soft diet. 

Nurse Spade opined that Al Bani could not currently live in the community physically. She 

further opined that “[m]entally he does not make [] sound decisions.” 

{¶21} According to Al Bani, he refused to take the swallow test because he read an 

article in Prevention magazine criticizing it and that the radiation places the body in danger. Al 

Bani affirmed that it was not an emotional decision. He did not offer any explanation for his 

decisions to leave the various medical facilities against medical advice or his noncompliance 

with his medications. Regarding his various behaviors, Al Bani claimed to have no idea where 

the machete knife came from and that he was provoked before he threw things. For instance, he 

testified that he threw a full urinal because an aide was not responding promptly to him. While 

he admitted to being “vindictive,” he believed he had positive behaviors since being released 

from prison. In addition, he averred it was “pure speculation” that anyone had taken advantage 
8 

 

of him. Al Bani testified, “[s]ince [his] release from prison [he] maintained three residence[s], 

held a job, paid [his] bills, fed [him]self, and done anything [he] had to do since 2011. Just since 

April [he’d] not been able to do that.” 

{¶22} In deciding a guardianship was necessary, the probate court noted Al Bani’s prior 

“living capabilities * * * are not relevant to his present day condition.” A person’s previous 

ability to take proper care of himself or his property does not automatically lead to the 

conclusion that he is currently able to do so. The guardianship statutes provide for the fluid 

nature of one’s mental status, for example, by allowing for the review and termination of a 

guardianship. See R.C. 2111.47. In a guardianship hearing, the issue is whether the individual is 

“presently incompetent and in need of a guardian.” In re Guardianship of Thomas, 148 Ohio 

App.3d 11, 20 (10th Dist.2002). 

{¶23} Based on the evidence in the record, we cannot say that the trial court abused its 

discretion in determining that, at the time of the hearing, Al Bani was unable to properly care for 

himself due to his mental impairment, and was, therefore, in need of a guardian. 

{¶24} Al Bani’s second assignment of error is overruled. 

III 

{¶25} Al Bani’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas, Probate Division, is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 
9 

 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 BETH WHITMORE 

 FOR THE COURT 

HENSAL, P. J. 

CONCURS.

CARR, J. 

CONCURS IN JUDGMENT ONLY.

APPEARANCES:

JOSEPH A. KACYON, Attorney at Law, for Appellant. 

BARBARA HEINZERLING, Attorney at Law, Appellee.