Adult Guardianships

Adult Guardianships in Oklahoma

Many families in Oklahoma find themselves in a situation where a loved one is not able to care for themselves properly. A parent or grandparent may be suffering from ailments that prevent them from making rational decisions for their lives or fulling their daily needs. An adult child may be suffering from physical illness, substance abuse, or mental health issues. A minor child may need someone to intervene to prevent further neglect or abuse to their person or property. 

Guardianships are a tool to provide relief for loved ones in need of care or supervision beyond the normal course of family life. If any of the circumstances identified above apply to you or someone in your life, then you may be able to find relief through the Oklahoma Guardianship and Conservatorship Act, which is found in Oklahoma Statutes Title 30 Section 101-22. This article addresses the requirements for an adult guardianship in Oklahoma.

When Are Guardianships Available in Oklahoma?

Guardianships are available in Oklahoma when someone is incapacitated as an adult or a minor in need of care by someone other than a parent, but falling short of an adoption or termination of parental rights.

Circumstances for Guardianships in Oklahoma

• Minors; 
• Incapacitated and partially incapacitated persons; 
• Property in Oklahoma belonging to a minor or incapacitated person who does not live in Oklahoma; and 
• Property coming into the control of a guardian who is subject to the laws of Oklahoma. 

What does Incapacities Person mean in the Guardianship Context?

An incapacitated person for purposes of guardianship means a person who is eighteen (18) years of age or older, who is impaired by reason of one of the following situations that makes them unable to care for themselves:

1) mental illness

2) intellectual or developmental disability

3) physical illness or disability

4) drug or alcohol dependency

Other circumstances may be shown to indicating an inability to receive and evaluate information effectively or to make and to communicate responsible decisions. These impairments warrant a guardianship, if the person is impaired to the extent that the person 1) lacks the capacity to meet essential requirements for his physical health or safety, or 2) is unable to manage his financial resources. 

Are Guardianships Appropriate in Instances of Abuse or Neglect?

In some instances abuse or neglect are a sufficient basis to seek an adult guardianship. However, deciding whether to act on your suspicions of neglect or abuse (of a minor or incapacitated person) can be a difficult decision. If you’re wondering if the circumstances actually rise to the level of concern where you should act, the following are the legal definitions of abuse and neglect as it relates to guardianships in Oklahoma:

• Abuse – the intentional infliction of physical pain, injury, or mental anguish or the deprivation of food or clothing by those responsible for these things. 
• Neglect – failure to care for an incapacitated person or minor who is unable to protect their own interests including:
  • Failure to provide adequate clothing or shelter, 
  • Harming or threatening with harm through action or inaction by either another individual or through the persons own action or inaction because of lack of awareness, which has or may result in physical or mental injury.

Who Can Become 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 care for the ward, but this can sometimes lead to strife among family members, particularly where there are significant financial matters that need to be handled. 

Generally, any person interested in the welfare of the person believed to be incapacitated or partially incapacitated may apply to the court for guardianship pursuant to Oklahoma Statutes Title 30 Section § 3-101. 

A person, who is at least 18, and of sound mind not influenced by duress, menace, fraud, or undue influence may nominate their own guardian over physical care and/ property. 

Nominations for guardian must be made in writing and signed by the person making the nomination. If two or more people are nominated, then the latest in time will serve as guardian. The court does have discretion to appoint co-guardians as it sees fit pursuant to Oklahoma Statutes Title 30 Section § 3-102. 

Determining the Right Guardian in Oklahoma

Many guardianship cases are simply handled by one party seeking guardianship over another party in order to manage the affairs and finances of the ward. However, some guardianship cases are highly contested and courts must evaluate the arguments and relationship of potential guardians to the ward in question. The following information is responsive to the questions related to how guardianship judges determine priority of potential guardians, as well as the issues considered in appointed a guardian in contested guardianship cases. 

Is Anyone Given Priority in Guardianship Appointments?

There are a wide variety of individuals that may become a guardian in Oklahoma; however, judges in guardianship cases do give priority to specific individuals in determining the best guardian for a particular ward.

In Oklahoma, the following hierarchy is the priority list for who takes guardianship over an incapacitated adult:

1. Individual nominated by the subject 
2. Current guardian appointed by another court
3. An individual nominated by the will of another guardian
4. The spouse of the subject
5. An adult child of the subject
6. A parent of the subject
7. A sibling of the subject
8. A person living with the subject for more than six months and approved by the court

Are Courts Bound by Guardianship Priority?

No, courts or judges determining adult guardianship do not have to choose based on hierarchy listed above. Ultimately, the court has the final say and can choose a guardian based on its determination of the best interests of the ward. 

What Factors are considered in selecting a Guardian?

The guardianship court judge will conduct an inquiry into the proposed guardian’s fitness to serve as a guardian. Many factors are considered by the court in determining the best guardian for a specific ward; however, the main focus is determining what I sin the best interest of the ward. The following factors help guide the court’s determination: 

• Whether or not the proposed guardian is over the age of 18?
• Is the proposed guardian of sound mind (not incapacitated or partially incapacitated)? 
• Is the proposed guardian free of criminal convictions, protective orders, or pending criminal charges?
• Whether an Oklahoma State Bureau of Investigation (OSBI) criminal background check is needed (the person seeking guardianship must tell the court about any criminal history, or any adult living in the household, so the court can consider whether the criminal history relates to the requested guardianship)?
• Whether the person seeking guardianship is insolvent or has declared bankruptcy in the five (5) years preceding the guardianship petition?
• Whether the person seeking guardianship is under any financial obligation to the proposed ward?
• Whether there is any conflict of interest that would keep the person seeking guardianship from properly caring for the ward or the ward’s finances?
• Whether the person seeking guardianship is a citizen, legal resident, or is otherwise legally present in the United State of America?

This list of questions is not exhaustive; however, it is a foundation for framing your case to seek guardianship for a vulnerable adult. By working with an experienced Oklahoma City guardianship attorney you will have a better chance at presenting the best case to the guardianship court to show you are the right person to act as guardian. Additionally, an experienced Oklahoma City guardianship lawyer will walk you through the process and handle all the procedural hurdles that exist in guardianship cases. 

Do Different Types of Guardianships Exist in Oklahoma?

Yes, there are different types of guardianships in Oklahoma to address the different needs of the wards the guardianship is designed to protect. 

What Types of Guardianships exist in Oklahoma?

There are three primary categories of guardianships in Oklahoma: general, limited, and special. 

General Guardian: A general guardianship allows a guardian to have control over the person in case and/or all their property within the state.

Limited Guardian: A limited guardian is a person authorized by the court to exercise limited powers over the person of the ward, or over the property of the ward within this state, or over both such person and property.

Special Guardian: A special guardian is a guardian who is appointed for an emergency purpose, and the guardianship usually last for up to a month.

Guardianship courts are often hesitant to give guardians more power than necessary, in an effort to protect the affairs and finances of the ward. However, many instances call for a general guardianship. Working with an experienced Oklahoma City guardianship attorney will assist you in identifying the right fit for your situation and presenting your case to the court for consideration and hopefully your appointment as guardian. 

How do You become a Guardian in Oklahoma?

The Oklahoma guardianship court process can be confusing, if you have not navigated the process previously. Additionally, the otherwise useful resource of looking at previous pleadings on OSCN.net is not available as guardianship cases are sealed from public access. 

Guardianship court proceedings have a different process than any civil or criminal case in our legal system. Again, it is advised you work with an experienced guardianship attorney; however, the following is a baseline to show you an overview of what lies ahead in your guardianship case. 

The following is intended to provide a greater understanding of what it takes to become a guardian.

How Does a Guardianship Case Begin?  

The first step in a guardianship case, like any other, is the filing of a legal document to initiate the case in district court. You will need to file the appropriate petition for the specific guardianship you are seeking, provide copies of your pleadings to the assigned judge over the guardianship case and notify all interested parties, including the ward, of the proceedings and dates for court. 

Notice of the guardianship proceedings to all interested parties is a crucial step after filing the guardianship petition. Notice, and the documents that must be served, vary between the different types of guardianships. The important questions that must be addressed regarding notice are as follows:

1) Who receives notice of the guardianship action?

2) When and how should notice of the guardianship be served?

3) What documents must be served in the guardianship case? 

GENERAL GUARDIANSHIP AND LIMITED GUARDIANSHIP CASES

1) Who receives notice of the guardianship action? 

The following parties must receive notification of the guardianship action in general and limited guardianships:

• Ward or incapacitated person; 
• Ward’s spouse, if any; 
• Ward’s attorney, if any;
• Ward’s adult children, or if none, the Ward’s parents, if living;
• If parents not living, then Ward’s adult siblings and all adult children of any deceased siblings of the Ward, and all adult grandchildren of the Ward;
• If none of the above, then to at least one but not more than three of the Ward’s nearest relatives;
• Any person or organization nominated or proposed to serve as guardian or limited guardian or limited guardian appointed by will or other writing;
• DHS or DMHSAS if providing services to Ward; 
• If Ward is a veteran and receiving or entitled to receive veteran benefits or services, from the United States Department of Veteran’s Affairs, then notice to the VA;
• Any other person as directed by the court.

2) When and how should notice of the guardianship be served?

Notice by personal service to the Ward

• At least ten (10) days before the hearing. 
• Copies of the notice of hearing and petition for guardianship must be delivered in person to the Ward by the Sheriff or licensed process server, or attorney if applicable. 
• A return of service must be filed. This must contain the date and time of service, who completed service, and must have the notarized signature of the person making service. 

Notice by Mail to all Others. 

• At least ten (10) days before the hearing. Copies of the notice of hearing and petition for guardianship must be mailed, by regular first-class mail, to all other persons entitled to notice of hearing on the petition for guardianship (see column to the left).  

3) What documents must be served in the guardianship case? 

The following documents must be served in general guardianship and limited guardianship cases: 

• Notice of all hearings;
• A copy of Petition for Guardianship; and
• Any other documents filed with the court that is set for hearing

SPECIAL GUARDIANSHIP CASES

1) Who receives notice of the Guardianship Action?

The following parties must receive notification of the guardianship action in special guardianships:

• The Ward or incapacitated person; 
• The Ward’s attorney, if any; 
• The Ward’s spouse, if any; and
• At least one other adult relative of the Ward who is not the petitioner or person seeking guardianship.

2) When and how should notice of the guardianship be served?

Notice to the ward in Special Guardianship by personal service in the manner directed by the court. Notice to all other persons receiving notice is directed by the guardianship court.

3) What documents must be served in the guardianship case? 

The following documents must be served in special guardianship cases: 

• Notice of Hearing, and 
• Copy of petition or other document giving rise to the notice.

Court Approval Process of Guardianships

After the guardianship petition and other initiating documents are filed and proper notice is provided to all the parties, the court must approve a proposed guardianship before it takes effect. Once all interested parties have sufficient time to file pleadings, the court then holds a hearing to evaluate the evidence presented by each party. Guardianship hearings can be very simply, if handled by an experienced guardianship attorney and they are uncontested; however, when multiple parties are seeking competing guardianships then the matter may become highly complex. 

How Does the Court Decide on a Guardian?

Once the Court evaluates potential guardians, the evidence presented, any briefs of the parties, if submitted, then the Court will issue an order appointing a guardian, if the court believes a proper guardian has been proposed. 

The guardianship order creates and sets out the guardian’s authority to act on behalf of the ward. The court’s order lists all the powers that a guardian may exercise. A guardian only has the authority to perform the specific functions listed in the court’s order. 

What is included in a Guardianship Order?

An order appointing a guardian must include the court’s finding that it was established by clear and convincing evidence that the needs of the proposed ward require a guardianship instead of less restrictive alternatives. 

Once a guardianship has been established, the court and the guardian work together to manage the care and finances of the ward. The guardian is responsible for providing the court with certain documents and information, and the court must review that information and plans for the ward. The proposed guardian must submit a care plan including at least the following: 

1) Care and treatment of the Ward; and 

2) management of the Ward’s financial resources 

What should be included in Guardian Care and Treatment Plan?

The guardian care and treatment plan should include at least the following elements:

• Services necessary to meet the essential requirements of the Ward’s physical health and safety (consider those recommended by the court as well). 
• Plan for providing those services or the plan for obtaining those services for the Ward. 
• How decision-making authority will be shared between the Ward and the Guardian, and 
• Any other services that are necessary in fulfilling the Ward’s needs.

When Is the Care and Treatment Plan filed with the Court?

The guardian care and treatment plan may be filed with the court at the time of the petition for guardianship, at the time of the guardianship hearing, or within 10 days of the appointment of the guardian. Any modification to the guardian care and treatment plan must be submitted to the Court. 

What should be included in the Financial Resources Plan?

The guardian financial resources plan should include at least the following elements:

• Necessary services to manage the Ward’s property, and the plan to provide or obtain those services, 
• How decision-making authority will be shared between the Ward and the Guardian, and 
• Any other services that are necessary in management of the Ward’s property to address the Ward’s needs and/or duties of the Guardian.

When Is the Financial Resources Plan filed with the Court?

The guardianship financial resources plan must be filed within 2 months after appointment as guardian. 

What Accountability does a Guardian have to the Court?

When a person becomes a guardian, they assume a high level of responsibility and control over the Ward’s life. Because of that responsibility and control, the Guardian has a heightened degree of accountability to both the court granting the guardianship and to the Ward. 

Does the Guardian have Statutory Duties?

Yes, in assuming responsibility for the Ward, the Guardian must perform certain statutory duties to the court. The Guardian has the duty to 1) promote and protect the wellbeing of the Ward’s person and/or property, 2) encourage the development of the Ward’s maximum self-reliance and independence, and 3) properly monitor and track the Ward’s health and financial assets. 

Does the Guardian Swear Anything to the Court?

Yes, the Guardian, in performing duties, must perform in a manner that satisfies the Court. In doing so, the Guardian must provide particular assurances to the court, including: 1) that the rights of their appointed Ward are protected, 2) the Ward’s property is safe (subject to the order and guardianship plans), 3) diligent and good faith performance of any specific duties assigned by the court, 4) proper management of the Guardian’s own finances and affairs, and 5) file proposed care and financial plan. 

Does the Guardian File Anything After Appointment as Guardian?

Yes, the Guardian is also responsible for filing an inventory of the estate of the Ward within two months after appointment with the court clerk. The inventory must contain the estimated value of the Ward’s estate based on the opinion of the Guardian. New inventories may be required at any time. For example, if the Guardian discovers new property not included in the first inventory, then the Guardian will need to file a new inventory. The Ward, judge, or an interested third party may request an appraisal of the property. 

The Guardian is also responsible for getting the court’s approval for the following: 

• Transfer of guardianship to another state, 
• Sale of the ward’s property, 
• Removal of the ward’s property from the state, and 
• Moving the ward’s residence. 

Are any Securities required in Guardianship Appointments?

As a protective measure, the Guardian may also have to post a bond with the court depending on the size of the Ward’s estate and the Guardian’s relationship to the Ward. The bond may be waived if the Guardian is a parent, spouse, brother, sister, grandparent, child, or grandchild of the ward, and the Ward’s estate and yearly income is less than $40,000. 

What is an Annual Guardianship Report?

The guardian must also file an annual report on the Ward and Guardianship of the property. Oklahoma law requires the annual report to contain the following: 

1. The name and place of abode of the Ward and the name and address of the Guardian,
2. Any significant change in the capacity of the ward to meet the essential requirements for their physical health or safety, 
3. The services being provided to the ward and the relationship of those services to the individual guardianship plans, 
4. Any significant actions taken by the guardian during the reporting period, 
5. Any significant problems relating to the guardianship which arose during the reporting period, 
6. The reasons, if any, why the appointment should be continued, and 
7. The reasons, if any, why no less restrictive alternative will permit the incapacitated or partially incapacitated person to meet the essential requirements for his physical health or safety. 
8. Attachments required:
   1. An accounting of all monies received by the Guardian on behalf of the Ward, 
   2. Any expenditures made by the Guardian on behalf of the Ward, 
   3. Any compensation requested by the Guardian, and 
   4. Copies of any appropriate medical records, evaluations, or other similar documentation pertinent to the reporting period. 

The requirements for the annual report seem daunting, but don’t worry, our experienced Oklahoma guardianship attorneys can assist you through each step of this process. 

What Level of Accountability does a Guardian owe the Ward?

A Guardian has a higher duty of care toward the Ward than a non-guardian. That means the Guardian must put the interests of the ward above their own, which is why some families prefer to have a professional guardian in place of a member of the family. However, some families would prefer to have a family member serve as guardian over a stranger. 

What Duties are owed to the Ward?

In Oklahoma, guardians have the following responsibilities to the ward: 

1. To ensure the Ward’s proper care, safety, and protection,
2. To ensure the support, health, and education of the Ward,
3. Must keep safe and in good condition the property of the Ward. A Guardian must permit no unnecessary waste or destruction of the real property of their Ward unless by court order,
4. To safely encourage, to the extent possible, the Ward’s participation in decisions affecting the Ward in all matters they are able, within any court-imposed limitations. Including but not limited to allowing the Ward to make their own decisions,
5. To perform all duties and powers assigned by the court,
6. Become and remain knowledgeable of the Ward’s capabilities, limitations, and needs (physical, mental, medical, etc.),
7. Ensure the Ward has proper housing in the least restrictive, safest, and most normal manner,
8. Determine the Ward’s place of residence (cannot move out of the county without court approval),
9. Timely pay the Ward’s debts,
10. Collect all debts owed to the Ward,
11. Settle claims or lawsuits as authorized by the court,
12. Sell real property, with court order only,
13. Make investments, with court order only, and
14. Provide consents and approvals as authorized by the court.

The Guardian may be able to act in other areas on behalf of the ward, but those additional areas, not currently authorized by statute, must be approved by the court. 

Are there any Limitations to a Guardianship’s Authority?

The list of prohibited accounts by a guardian are rather intuitive; however, it is beneficial to see a concrete list of prohibited actions by guardians. A guardian in Oklahoma may not do any of the following:

1. Use the ward’s money for anything other than the ward’s needs and maintenance,
2. Sell the ward’s property without prior order,
3. Move the ward’s residence out of the county without prior order,
4. 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,
5. Consent on behalf of the ward to termination of the ward’s parental rights,
6. 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,
7. Prohibits marriage or divorce of the ward, except with court approval,
8. Consent on behalf of the ward to placing the ward in a facility or institution absent formal commitment proceedings,
9. Restrict or limit the ward more than necessary, and
10. Have guardianship over more than five wards at one time.

Does a Ward retain Rights in a Guardianship?

Absolutely, a Ward 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 Ward’s interest. 

A Guardian must seek the least restrictive alternative when meeting the needs of the Ward.

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.

Oklahoma law imposes procedural safeguards to ensure the Ward’s rights are protected. The proposed Ward is entitled to a presumption of capacity that must be overcome before a Guardian can be appointed. The proposed Ward is afforded the right to notice (discussed above), the right to attend and participate in hearings, the right to representation by an attorney, and the right to appeal the appointment of a guardian. 

Protection of Ward’s Confidential Information

Both the Ward and their family may be concerned with the security of confidential information that a Guardian has access to after appointment. The documents filed related to a guardianship are not considered public records, and they will be sealed by the court. The court will strictly control access to these documents. 

No confidential information will be disclosed, except upon court order, to persons other than the Ward, their attorney, the Guardian Ad Litem, the Guardian, the Guardian’s attorney (if the subject of the confidential information is the Guardian), abstractors licensed under the Oklahoma Abstractors Law, an authorized representative of the United States Department of Veterans Affairs (if the Ward is a veteran), and authorized representatives of the Department of Human Services. 

What if a Guardian Fails to Perform their Duties to Court and the Ward? 

The guardian is placed in a fiduciary capacity when appointed to serve by the court. That means the Guardian may not benefit themselves in their capacity as Guardian. Failure to perform the duties imposed by the court or statute, then the Guardian could be subject to removal, fines, or even civil or criminal penalties. 

How Much Does a Guardian Cost?

Guardianship cases can be very expensive, especially if they are contested. However, by working with an experienced guardianship attorney, you will have his or her experience on your side, which often saves both time and money in seeking a guardianship. 

There are numerous forms to be drafted and filed, many procedural requirements, and likely several court hearings in guardianship cases. 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. When you work with an experienced guardianship attorney, the process is streamlined and the complex can be reduced to more easily digested material. 

What are the Alternatives to Guardianship?

Since the courts are reluctant to take away someone’s rights, they consider guardianships to be a secondary option to less restrive means of providing for the care of individuals. The following alternatives involve the individual 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: An individual can designate someone to handle his or her financial affairs.

Representative Payeeship: If an individual’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 Ward, witnessed and notarized, where the individual may give another person the right to act on his or her behalf.

Standby Guardianship: The individual 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.

Contact – Cannon & Associates: Oklahoma City 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.