What is a Guardian?
A guardian is appointed by a court to take responsibility for the elderly person and assist them take medication and make smart financial decisions. It is an option taken by the court after a hearing and medical confirmation that the elder is unable to take care of them self.
Who Might Need a Guardian?
Any person over the age of 18 who is incapacitated due to mental illness, physical illness, or disability, substance dependency, or a related condition which causes the person to be unable to take care of them self may be entitled to a guardian. Most commonly, guardians are appointed to elderly persons who have lost the ability to take care of themselves.
Why Might Someone Need a Guardian?
When our grandparents, parents, and even friends become unable to care for themselves, they might need a guardian to help take care of themselves. The inability to take care of oneself may look like forgetting to take necessary medicines, the inability to maintain basic health (such as forgetting to shower or eat), or the inability to maintain and manage finances. In these instances, it may be in the elderly person’s best interests for a court to appoint a guardian.
It can be a difficult decision for the elderly person to decide that they need help, and sometimes the court requires a guardian even where the elderly person does not want one. This can be an emotional time for the elder as well as the family, and making this decision, even when it is correct, might feel uncomfortable. A person who is alleged to be incapacitated has the right to dispute the allegation, be present at the hearing, call witnesses to attest to their capacity, present evidence and cross-examine witnesses.
What is a Guardian Ad Litem?
If a person is deemed to be incapacitated, they may be appointed an attorney by the court who serves as a “Guardian Ad Litem.” This attorney meets with the elderly person and determines their wishes regarding the hearing and any proposed guardians. The purpose of this lawyer is to look out for the elder’s best interests at court and make a recommendation to the court with the best way to proceed.
What are the Kinds of Guardianships?
There are three kinds of guardianships in Oklahoma:
General Guardianship: A general guardianship allows a guardian to have control over the person in care and/or all of their property.
Limited Guardianship: A limited guardian is a guardian who only has limited powers over the elder and/or the elder’s property.
Special Guardianship: A special guardian is a guardian who is appointed for an emergency purpose, and usually lasts for up to a month.
Who can be a Guardian?
A guardian can be a family member or a professional who is appointed by the court. Sometimes family members are able to step up to take care of the elder, but this can sometimes lead to strife among family members, particularly where there are significant financial matters that need to be handled.
In Oklahoma, the priority of who takes guardianship rights over an incapacitated adult is as follows:
- Individual nominated by the subject
- Current guardian appointed by another court
- An individual nominated by the will of another guardian
- The spouse of the subject
- An adult child
- A parent of the subject
- A sibling of the subject
- A person living with the subject for more than six months and approved by the court
What are the Duties of a Guardian?
A guardian has a higher duty of care toward the elderly person than a non-guardian. This means that the guardian must put the interests of the elderly person above their own, which is why some families prefer to have a professional be the guardian instead of a family member. Alternatively, this is also why some families prefer to have a family member act as the guardian as opposed to a stranger.
In Oklahoma, guardians have the following responsibilities:
- To ensure the Elder’s proper care, safety, and protection
- To ensure the support, health, and education of the Elder
- Must keep safe and in good condition the property of the Elder. A Guardian must permit no unnecessary waste or destruction of the real property of their Elder unless by order
- To safely encourage, to the extent possible, the Elder’s participation in decisions affecting the Elder in all matters they are able, within any court-imposed limitations. Including but not limited to allowing the Elder to make their own decision
- To perform all duties and powers assigned by the court
- Become and remain knowledgeable of the Elder’s capabilities, limitations, and needs (physical, mental, medical, etc.)
- Ensure the Elder has proper housing in the least restrictive, safest, and most normal manner
- Determine the Elder’s place of residence (cannot move out of the county without court approval)
- Timely pay the Elder’s debts
- Collect all debts owed to the Elder
- Settle claims or lawsuits as authorized by the court
- Sell real property, with court order only
- Make investments, with court order only
- Provide consents and approvals as authorized by the court
What are the Limits of what a Guardian may do?
A guardian in Oklahoma may NOT:
- Use the ward’s money for anything other than the ward’s needs and maintenance
- Sell the ward’s property without prior order
- Move the ward’s residence out of the county without prior order
- Consent on behalf of the ward to withhold or withdraw life-support or life-sustaining procedures without court authorization or as authorized by an Advance Directive
- Consent on behalf of the ward to termination of the ward’s parental rights
- Consent on behalf of the ward to an abortion, psychosurgery, removal of a bodily organ, performance of any biomedical or behavioral procedure except in an emergency and as necessary to save the ward’s life and with permission
- Prohibits marriage or divorce of the ward, except with court approval
- Consent on behalf of the ward to placing the ward in a facility or institution absent formal commitment proceedings
- Restrict or limit the ward more than necessary;
- Have guardianship over more than five wards at one time.
What should be in a Guardianship Care Plan?
A proposed plan for care and treatment of the Elder should include services necessary to meet the essential requirements for the Elder’s physical health and safety, considering recommendations from the court; the plan for providing or obtaining those services; how the Guardian of the person will share decision making authority with the Elder; and any other services that are necessary to assist in fulfilling the Elder’s needs.
The proposed plan for care and treatment of the Elder may be filed at the time of filing of the petition, time of hearing, or within 10 days of appointment as Guardian. Any modification to the care plan must also be submitted.
What should be in a Financial Plan?
A proposed financial plan should include services necessary to manage the Elder’s property under the Guardian or limited Guardian’s control; the plan for providing or obtaining those services; how the Guardian of the property will share decision making authority with the Elder; and any other services that are necessary to assist in the management of the Elder’s property to fulfill the Elder’s needs and the Guardian’s duties.
The proposed plan for care and treatment of the Elder may be filed at the time of filing of the petition, time of hearing, or within 10 days of appointment as Guardian. Any modification to the care plan must also be submitted.
What are the Rights of the Elder?
An Elder under a guardianship retains the right to be respected and treated like an adult. This includes the right to privacy, to live independently, and to participate in decisions. Once a person is appointed a Guardian, he or she must act to protect the Elder’s interest. A Guardian must seek the least restrictive alternative when meeting the needs of the Elder.
Additionally, adults have the freedom to control their lives and with this freedom of choice comes the responsibility of dealing with the consequences of foolish choices. Adults enjoy this right to freedom of choice if able to understand the situations and the likely consequences of our choices. If trauma, disability, and/or illness are severe enough to impair the mental abilities so much that a person cannot understand their situations and knowingly accept the likely consequences of his or her actions, it may be necessary to limit that individual’s rights to prevent harm.
What Kind of Long-Term Care is an Elder Expected to Need?
The length and time of care that an elder might need depends on a lot of factors. Mostly, the essential considerations that a court will look at are the existing physical and mental condition of the elder, the family’s history of medical issues, and the elder’s expected lifestyle. If an elder has extreme dementia and is a flight risk, the care might be extensive. If the elder has physical trouble at night but not during the daytime, there may be only a limited need for the guardian. Ultimately, it depends on the elder’s needs.
What can an Elder do to Maintain Health and Independence?
Guardianship requires the elderly person to lose some of his or her rights. This can be a taxing experience for the elder, because they may lose the right to manage finances, choose his or her own caretaker, and to decide where he or she lives. For these reasons, most elderly people want to maintain as much of their health and independence as possible. Since it can expected that elder care will at some point be necessary—whether at 60 years or 100 years—it is good to have a plan on how the elder can maintain that freedom as much as possible by staying physically healthy, having social interactions on a regular basis, and doing things they enjoy.
How Much Does a Guardian Cost?
Guardianship petitions are usually expensive, and it can cost a lot of money not only to obtain one, but also to become one. There are numerous forms to be drafted and filed, many procedural requirements, and likely several court hearings. In the event that there is opposition to a proposed guardianship, the process can become even more involved and can be emotionally and financially draining.
The difficult financial aspect of long-term care is that the cost is completely dependent on the type of care necessary, the location of the care, and the length of time required. Planning in advance can help alleviate at least some of these burdens. Some health insurance plans include long-term care or offer options that do so. Other people may set aside a specific portion of their savings to long-term care. Be sure to organize your financial records to prepare for the event of long-term care.
What are the Alternatives to Guardianship?
Since the courts are reluctant to take away the rights of an elder, they consider elderly guardianship to be a last resort option. The following alternatives involve the elderly person willingly assigning his or her rights to another person, but if they become unable to do so because of mental incapacity, then these alternatives are no longer available. In Oklahoma, possible alternatives to guardianship include:
Living Trust: The elderly person can designate someone to handle his or her financial affairs.
Representative Payeeship: If the elderly person’s income is from government benefits, he or she may designate someone to manage this income.
Power of Attorney: A Durable Power of Attorney is a written instrument that is signed by the elder, witnessed and notarized, where the elderly person may give another person the right to act on his or her behalf.
Standby Guardianship: The elderly person may designate someone as a standby guardian, in case the person loses the ability to care for himself or herself. The person must make this decision in writing, and they must be of sound mind when they make the decision, and it cannot be made under duress, fraud, or undue influence.
Who can Petition a Court to Designate a Guardian?
Generally, the following people or entities can petition a court to designate a guardian:
- The elderly person
- A spouse or domestic partner of the elderly person
- A relative of the elderly person
- A friend of the elderly person
- A state or local government agency
The guardianship process can be long and complex, perhaps understandably, given that the elderly person will lose some important rights and have his or her care entrusted to another person.
What are the Requirements to Become a Guardian?
To be a guardian in Oklahoma, a person must be:
- The Guardian must be over the age of 18;
- The Guardian must be of sound mind (not incapacitated or partially incapacitated);
- A Guardian must be free of criminal convictions, protective orders, or pending criminal charges
The Guardian must obtain an Oklahoma State Bureau of Investigation criminal background check (the person seeking Guardianship shall tell the court about any criminal history of himself/herself, or any other adult household member, so the court can consider whether the criminal history relates to the requested Guardianship) - A Guardian must not be insolvent or have declared bankruptcy in the five (5) years preceding the Guardianship petition;
- The person seeking Guardianship should not be under any financial obligation to the proposed Elder
- The guardian should not have any conflict of interest that would keep the person seeking
- Guardianship from properly caring for the Elder or the Elder’s finances
- The party seeking to be appointed guardian must be a citizen, legal resident, or must be otherwise legally present in the United States of America.
Contact – Cannon & Associates: Oklahoma Guardianship Attorneys
Experience matters when you or a loved one requires a legal guardian in Oklahoma. It is important to know the Oklahoma family lawyer firm you hire is dedicated to your cause and versed in all aspects of elderly care law and guardianship law in Oklahoma. Cannon & Associates is dedicated to FIERCE ADVOCACY for incapacitated persons who need care or their loved ones that are seeking a guardianship. Contact Cannon & Associates to protect your family and find the correct guardian for you or your loved one in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.