Guardianship: Protecting Those Who Need You Most
Take the next step for your loved one: We can help you feel confident by answering your questions and guiding you forward.
Guardianship Options for Your Family
- Minor Child Guardianship: This is for children who are unable to care for themselves. The guardian becomes responsible for the child’s physical and emotional well-being, including making decisions about education, healthcare, and living arrangements. The goal is often to temporarily provide a safe and loving environment while working towards reunification with the biological parents when possible.
- Adult Guardianship: This is for adults who are unable to manage their own affairs due to a disability or mental incapacity. The guardian’s role and responsibilities can vary depending on the specific needs of the ward, but they usually include ensuring their well-being and managing their finances.
Common Concerns of Potential Guardians and How We Can Help
We understand that considering guardianship is a significant decision. These can include the following:
- Cost: Guardianship can involve upfront costs for legal fees, background checks, and court filings. We offer transparent fee structures and can help educate you on court costs and filing fees.
- Time Commitment: Being a guardian requires a significant time commitment to care for the ward’s needs. We can guide you through the process, explain your responsibilities, and help you connect with resources to support you in your role.
- Long-Term Responsibility: Guardianships carry a fiduciary duty, meaning they require ongoing responsibilities such as financial management, sometimes in addition to the care of the ward. We guide you through financial management processes and reporting requirements mandated by Oklahoma law.
- Reunification: While the primary goal of minor guardianship may be reunification with biological parents, this is not always the case. We advocate for the child’s best interests, whether that’s reunification or a stable and loving permanent home with the guardian.
The Guardianship Process
- Filing a petition with the court to obtain guardianship
- Background check on the proposed guardian
- Court hearing to determine the best interests of the child/adult
(Note that adult guardianship requests may involve additional evaluations to determine the adult’s capacity and need for a guardian)
Your guardianship doesn’t need to be complicated. Call us at 405-591-3935.
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- Terms you’ll understand: We explain complex legal concepts in relatable terms so you don’t get taken advantage of.
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- Navigate with Confidence: Gain the knowledge to navigate the next steps effectively and confidently, increasing your chances of achieving the best possible outcome.
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TOP 3 REASONS TO CHOOSE US FOR YOUR GUARDIANSHIP CASE
1. Combined 100+ Years of Experience:
Our team navigates even the most complex cases with confidence. We’ve seen it all and know how to apply our knowledge to achieve your specific goals.
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Unlike most firms, we combine the attention of a dedicated lead attorney with the collective wisdom of our entire team. During our weekly meetings, we ensure no detail is overlooked.
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Every family is different, so there’s no “one-size-fits-all” approach. By understanding your values, priorities, and goals, we craft a personalized strategy to maximize your chances of success.
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FAQs
1. Who can be a guardian in Oklahoma?
Typically, a parent, spouse, adult child, or close family friend.
In some cases, a professional guardian may be appointed by the court.
2. What are the requirements to become a guardian in Oklahoma?
- Be at least 18 years old and of sound mind.
- Pass a background check.
- Demonstrate the ability to care for the ward (child or adult).
- Have no conflicts of interest with the ward’s finances.
- Be willing to act in the ward’s best interests.
3. How long does the guardianship process take in Oklahoma?
The timeframe can vary depending on the complexity of the case but generally takes several months.
To read more about guardianship, check out our blog:
Adult Guardianships in Oklahoma
Does Guardianship Override Parental Rights in Oklahoma?
Guardianship and Elder Care in Oklahoma
Ask an Oklahoma City Child Guardianship Attorney: Who Can Get Guardianship of a Minor Child?
By default, parents are the first and default guardians of a child. They are expected to watch over the child and oversee their welfare. As the default legal guardian, parents are also required to make decisions in the best interest of their children. However, certain situations or circumstances can cause the authority or guardianship to change base. Parents may need to appoint someone else to act as guardians for their children based on health changes, financial problems, changes in the family relationship, or others. In situations where parents cannot do this and are unfit to carry out their role, a court of competent jurisdiction may step in to appoint a legal guardian. In Oklahoma, the same judges that handle family law disputes handle the majority of guardianships. In this article, we hope you will gain an understanding of who can get guardianship of a minor child in Oklahoma and that you know we are here to answer your questions, if needed.
By law, a guardian is any person with the authority to make legal decisions for another person. In the instance of a minor or “a ward,” a legal guardian is required because children are incapable of making life choices for themselves. As a parent looking to appoint a legal guardian, many factors should be considered. Read on to find out more about legal guardianship and what it entails.
How Guardians Are Selected for Minors
Parents may be deemed unfit or unable to carry out their duties for many reasons. For example, an addict is regarded as unfit to make serious decisions for their children and maybe deemed unfit to act as a child’s legal guardian. Parents involved in volatile and high-conflict divorces may also be deemed unfit to make clear decisions in the interest of their children. Whether the parents are dead, absent, or unfit, the guardian selection process is a thorough one.
Courts often make decisions in the child’s best interest, which means that they consider all the possibilities before appointing a legal guardian. In most cases, courts choose guardians who already have established ties with the parents or family. Grandparents or other relatives are the first in line.
It is important to note that a legal guardian will only be selected after the parents have been deemed unfit or absent. However, in some states, such as Oklahoma, a parent may be able to transfer guardianship to another temporarily. For a quick recap, guardianship of a minor may be necessary for the following situations in Oklahoma and elsewhere:
- The parents are embarking on an international trip without the child hence necessitating the need to appoint a guardian while they are away.
- The child lives in a different country, away from the parents.
- The child is disabled and requires special care.
- Parents have been deemed unfit to care for the child.
- Both parents are incarcerated or dead.
- The parents have abandoned the child without care.
A child may also be appointed a new legal guardian if one of the parents is incarcerated or dead while the other is absent.
How to Get Legal Guardianship of a Child in Oklahoma
In Oklahoma, an adult may be awarded the legal guardianship of a minor if:
- They file a petition in court
- Get a hearing date and notify the child’s parent of the same
- Attend the hearing and get legal guardianship awarded by the judge.
Anyone who wishes to obtain legal guardianship of a minor has to go through the right process, especially if the child’s parent hasn’t nominated them. Interested persons will be required to obtain and fill out some forms that will then be submitted in court. Interested guardians can also choose to hire a guardianship attorney to represent them in court, or they can represent themselves.
It is, however, highly recommended that you seek legal help from experienced family lawyers familiar with guardianship issues. Irrespective of your decision to hire a lawyer or not, you must pass through the following steps;
How Do I File a Guardianship Petition in Court in Oklahoma?
Filing the guardianship petition in court in Oklahoma can be complicated; however, it is the first of many necessary steps in order to obtain a guardianship over a minor child or any other party, such as a vulnerable adult.
The first step in obtaining legal guardianship of a minor involves filing a guardianship petition in an Oklahoma court. Filing this petition requires a filing fee; however, our office will pay the filing fee out of your retainer, if you decide to work with us.
In order to file a guardianship in Oklahoma, you must follow a strict set of steps and correctly identify the law, parties, and multiple pieces of information, in order for the Court to even grant you a hearing on your petition for guardianship. In Oklahoma to file your guardianship petition correctly, you must locate the county wherein the minor resides or in the country where you reside. If you’ve chosen the latter, you must submit a court affidavit stating the following:
- Where the minor has lived for the past five years. This information must include the names and addresses of all persons with whom the minor has lived within the past five years.
- Your participation in any of the court cases regarding the minor’s custody or visitation. Quote the court and case numbers of your participation, if any.
- The existence of any court case(s) that could influence the decision of the petition being submitted.
- The existence of a person that isn’t party to the guardianship case that may claim custodial rights to the minor.
This information must be provided to the court to fulfill the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requirements. Per UCCJEA provision, a court that has made a custody determination in the past regarding a child has exclusive continuing jurisdiction over the case. This means that interested guardians have to defer to the court where earlier custody arrangements had been made for their custody petition. The case can only be moved to another court if the initial court or another determines that neither the child nor the parents, nor any person acting as a parent, resides in the state where the original custody determination was made. In Oklahoma, guardianship cases are closed to the public; therefore, it is even more important to work with an experienced Oklahoma guardianship attorney in order to ensure you take your action before the right court.
The UCCJEA aims to protect the child, parents, and legal guardian from parties who may wish to obtain a favorable hearing and decision from another state. Interested legal guardians can speak to their guardianship attorney if they feel the provisions of the UCCJEA may hinder their chances of giving the minor involved a better chance at life.
Do I have to Notify the Parents of the Guardianship Hearing?
After filing the guardianship petition, the court requires you to notify the minor’s parents of the hearing date. To prevent fraudulent acts, you must send the notice of hearing to relevant parties at least 10 days before the hearing date. The court may act in its capacity to determine when a shorter notification period is appropriate.
The petitioner must notify the following parties in any guardianship action in Oklahoma:
- The minor’s parent,
- The child, if the child is 14 years old or over,
- Any other party involved in the minor’s custody case,
- The minor’s grandparents, in instances where the minor has no living parent,
- Grandparents looking to file guardianship petitions are required to notify the other grandparents,
- Grandparents whose minors have no other living grandparents, or grandparents with no known address must send a notification to other adult relatives living in the county where the petition has been filed.
Notice of guardianship petition must be delivered by one of the following means in order to provider proper service:
- The sheriff of the county where the petition has been filed
- A licensed process server
- Certified mail to the recipient’s last known address
Notice of guardianship petition must be delivered to the following parties:
- The person to whom the notification is addressed to
- Any person aged 15 or above that resides in the designated recipient’s home
If the notice cannot be served to the intended recipient through the stipulated means, the petitioner may request leave to serve the recipient through other means. Some of the common alternatives include a newspaper publication done once a week for three consecutive weeks. You may also speak to a guardianship attorney for more information regarding this.
In case of an emergency, the petitioner may be able to request a special guardianship which comes with less stringent notice requirements. In some emergency cases, judges may allow the petitioner to obtain guardianship without notice or award a 72-hour notice period to expedite the matter.
To obtain a special guardianship, the petitioner must be able to prove that the minor concerned will suffer immense, immediate, and reasonably serious physical harm if adequate and immediate steps are not taken. In instances where the court appoints you as a special guardian without notice, you’ll be required to give notice to the due parties after the award.
A special guardianship often lasts up to thirty days.
Are Background Checks required when seeking a Guardianship in Oklahoma?
Yes, in any case where you are seeking legal guardianship of a minor or legal guardianship of any individual, a background check is necessary in order for the Court to be able to grant any person the role of guardian. The background check process is tedious, if you do not work with these agencies on a regular basis and is one of the primary reasons parties seeking a guardianship work with experienced guardianship attorneys to handle this complicated process for them.
There are three primary forms of background checks, which are required in seeking to obtain guardianship in Oklahoma. The types of background checks necessary in order to obtain a Guardianship in Oklahoma include the following:
- National fingerprint based criminal background check, such as an FBI background check;
- Statewide background check, including the database for the Sex Offender Registration Act, which is typically accomplished by obtaining an Oklahoma Bureau of Investigations (“OSBI”) Background Check; and
- Child Abuse and Child Neglect database (“CANIS”) information, which is typically maintained by the Oklahoma Department of Human Services (“DHS”).
All three background checks must be completed in order to obtain a guardianship in Oklahoma Courts; however, you do not have to do all the work. Our office can complete the applications for your guardianship case. We can submit the background checks for your Oklahoma guardianship case. Most importantly, we can follow-up and make sure the right parties receive the background checks and that they are returned to our office in a timely manner.
Can I download and complete the Oklahoma Guardianship Background Check Forms?
Yes, you can download and complete the three necessary Oklahoma guardianship background check forms yourself. The following are links to the three locations you can obtain the paperwork necessary to request the necessary background checks for a guardianship in Oklahoma, if you want to get the process started now before hiring a guardianship attorney or you want to seek to obtain a guardianship in Oklahoma without an attorney:
- FBI Background Check for your guardianship application;
- OSBI Background Check for your guardianship application; and
- DHS Background Check for your guardianship application.
It is important that you begin the process for all three background checks as soon as you determine you want to seek a guardianship in Oklahoma, either by submitting the forms yourself or retaining an experienced Oklahoma City guardianship attorney. The third background check for seeking a guardianship listed above, DHS background check typically takes the longest; however, Courts are authorized to begin the process of considering and potentially granting you a guardianship prior to receiving the results of this background check.
The comprehensive checks listed above may not be applicable in the case of an emergency or special guardianship petition in Oklahoma; however, it is important to hire an experienced Oklahoma guardianship attorney to seek these records on your behalf.
Does Oklahoma required anything other than a Background Check to obtain a Guardianship?
Yes, before perfecting the terms of the guardianship, the court may require a study of the prospective guardian’s home in accordance with the Oklahoma Adoption Code. The court may also require a background check to be done on the legal guardian and anybody over the age of 18 around them.
What Happens at the Guardianship Hearing?
The third stage in obtaining legal guardianship of a minor is the guardianship hearing. The court will determine who should be the minor’s guardian at the hearing. The hearing allows the child’s parent or any subsisting custodian to present their case. After hearing the sides of the case, the judge will decide on whether to set the matter for trial or award guardianship. An uncontested guardianship is possible if the petitioner can prove that both parents of the minor are unfit to carry out their duty.
What disqualifies Someone from seeking a Guardianship?
Before getting into the specific disqualifications for seeking a guardianship in Oklahoma, it is important to remember the purpose of disqualifying factors is to protect the child, children, or vulnerable adult that is to be cared for as part of the guardianship. A guardianship petition may be disqualified from obtaining emergency guardianship of a minor or otherwise in the following specific instances:
- The petition is submitted by another minor, i.e., a minor cannot be appointed as the legal guardian of another minor,
- The petitioner is incapacitated and/or requires special care,
- The petitioner has been appointed guardian over five persons,
- The petitioner has not proven to be financially capable of carrying out their duties as a legal guardian,
- The petitioner has not been a resident of Oklahoma for at least one year.
Can Criminals obtain Guardianship of a Minor Child?
The simply answer is “yes, but it is it complicated.” Many individuals with a criminal record can become guardians in Oklahoma; however, there are several specific criminal criteria, which may deny a petitioner from becoming a legal guardianship of a minor include conviction for any of the following offenses; however, when you work with an experienced guardianship attorney you will be able to present a strong argument to the court why you should be appointed guardian, in lieu of another party or the child or children become wards of the State:
- Possession, purchase, and/or distribution of child pornography
- Forcible sodomy of a child
- Sexual abuse or sexual exploitation of a child
- Kidnapping, with associated sexual abuse or sexual exploitation of a child
- Aggravated possession of child pornography
- Child stealing, involving sexual exploitation or abuse
- Incest
- Facilitation, solicitation, encouragement, or offering sexual conduct with a minor by use of technology
- Procuring minors (under the age of 18) for prostitution
- Indecent exposures, proposals, or lewd acts to a child under 16 years
- Solicitation of a minor in child pornography or indecent exposure
Are there Financial Reasons why Someone cannot obtain a Guardianship?
Yes; however, as stated above in relation to criminal history, which may deny a petitioner the ability to become a guardian for a minor or obtain another form of guardianship; these are factors, not hard rules. When you work with an experienced Oklahoma guardianship attorney you will be able to present a strong argument to the court in response to the following financial concerns, which may be a basis to deny legal guardianship of a minor:
- Petitioner that has been declared bankrupt within five years of filing the petition
- Petitioner under financial obligation to the minor
- Petitioner who is insolvent or unable to pay their debts when due
- Petitioners with conflict of interest to the minor
- Petitioners with a criminal record, pending criminal charge, protective order, or other civil or criminal matter.
It is important to note that a court cannot grant legal guardianship of a minor to any person that does not legally resident within the United States. This means that illegal residents or overseas guardians are disqualified from their interest in the minor child.
What are a Legal Guardian’s Duties, Rights, and Powers as Legal Guardian?
The duties, rights, and power of a Legal Guardian are numerous and basically give a person legal power of attorney or a parent to act on behalf of the ward or person protected under the guardianship. The granting of position of legal guardianship comes with huge responsibilities that should be taken seriously. In many cases, the guardianship court may call you back after some weeks to re-evaluate the decision to entrust the minor in your care.
The review meeting will determine whether you continue as the minor’s guardian or not. Our team of Fierce Advocates will work with you to help you understand the process and all your requirements before obtaining a guardianship, in seeking to obtain a guardianship, and your responsibilities after obtaining a guardianship in Oklahoma.
Duties of a Legal Guardian
The person or parties granted guardianship of a minor are assigned specific duties to provide for the health, safety, and general welfare of the minor child or ward of the guardianship. Legal guardians are entrusted with the right and authority to control the following affairs of the ward or minor:
- Education of the Ward
- Health of the Ward
- Property of the Ward
The legal guardian has the duty to act in the best interest of the children and to ensure they are properly cared for during the period of the guardianship. Legal guardians have the following duties to the Court over the guardianship and to the Ward:
- To take care of the minor
- File guardianship reports with the court
- Do everything in the interest of the child while refraining from exploiting the minor or their property.
The Rights and Powers of a Guardian
A guardian may be appointed over a minor’s person, property, or both. In most cases, guardians have authority to change the minor’s residence, dictate medical care preferences, make education-related decisions, as well as faith-based decisions.
Guardians with full authority over the minor’s person and property may also control the minor’s finances, income, and may make decisions regarding the purchase and sale of the minor’s property. A court can, however, define the extent of the guardian’s powers based on the specific facts of a minor’s case. Our team of Oklahoma guardianship attorneys will work with you to develop a plan that fits your specific needs. We will draft the petition for guardianship in a way that requests the powers and rights of a guardian that are necessary for your situation and then fight for your interests and goals at the guardianship hearing.
According to the Oklahoma guardianship statutes, a guardian’s powers are only limited to what was ordered by the court. Therefore, it is important to work with an experienced Oklahoma City guardianship attorney to ensure that you request all the powers you will need from the court in your guardianship case. It is possible to return to court to request additional powers as guardian; however, this can cost you both time and money. Therefore, it is best to work with a guardianship attorney to identify everything you need up front in your specific case. With this in mind, the court can order one of three types of guardianships:
- General guardian
- Limited guardian
- Special guardian
General Guardianship: the general guardianship has the broadest power as provided by the OKLA. STAT. tit. 30 §1-109. A general guardian has control over the minor’s person, property, or both. “A general guardian is a guardian of the person or of all the property of the ward within this state or of both such person and property.”
Limited Guardianship: the limited guardianship has limited authority over the minor’s person, property, or both. The court will define the limits within which this guardian can operate. Limited guardianships are “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” pursuant to OKLA. STAT. tit. 30 §1-109. Limited guardianships are the most specifically tailored and are best to suit circumstances with specific needs for a guardianship. They are easier to obtain than a general guardianship, as well.
Special Guardianship: A special guardianship is appointed only in emergency situations where the minor is in danger or faced with significant imminent danger. Special or emergency guardianships are often for a limited time, and the minor’s parents retain their constitutional right to custody over the minor. A special guardianship arrangement may only be extended if both parents are deemed unfit to carry out their duties over the child. These are the most common guardianships put into place in urgent or emergency situations.
It is crucial to work with an experienced Oklahoma guardianship attorney to understand the benefits and limitations of each type of guardianship that exists in Oklahoma.
Are there any Limitations to the Guardianship Powers?
Yes, there are limitations to the guardianship powers in Oklahoma. Although guardians are entrusted with the power to make certain decisions regarding the minor’s person, property, or both, there are limitations to their powers. These limitations include a guardian’s inability to withhold life-sustaining treatment from the minor.
However, there are certain exceptions to this limitation. Guardians may be able to consent to withdrawal of life-sustaining treatments from a minor if;
- A court of competent jurisdiction awards such authority;
- The minor has authorized the guardian to make such decisions under the Oklahoma Do-Not-Resuscitate Act or Oklahoma Advance Directive Act; or
- The guardian agrees for the minor to receive hospice services as directed by a licensed physician who has classified the minor as terminally ill. The diagnosis must comply with Oklahoma Hospice Licensing Act.
Other limitations to the guardianship powers in Oklahoma include:
- A guardian may also not consent to the termination of the ward’s parental rights if they have children,
- A guardian may not consent to medical procedures like psychosurgery, abortion, bodily organ removal, the performance of experimental behavioral or biomedical procedures, and participate in such experiments. The guardian may be exempted in the event of emergency healthcare procedures necessary to save the ward’s life.
- A guardian may not stand in the way of the ward’s divorce or marriage, unless a court grants the specific authority.
- Guardians are also required to undergo a trial before committing the ward to an institution. The ward is required to have legal representation at this trial.
When Does a Guardianship End in Oklahoma?
Guardianship may be removed or a guardianship may be terminated by the court when the guardian is failing to perform their duties or the need for the guardianship has ended. The guardian may request the guardianship be terminated or in some cases another party can contest a guardianship or even the state can move to terminate a guardianship.
Who can act as Legal Guardian, if I cannot care for my Child?
Any competent party over the age of eighteen of sound mind and not under duress or acting fraudulently may seek to obtain guardianship over a minor child. When you as a parent nominate a party to be guardian of your child they are given preferential treatment by the Court; however, it is not automatic that the party you nominate as guardian will be appointed guardian. When you work with an experienced Oklahoma guardianship attorney you increase your chances of achieving the outcome you are seeking and also understanding every step of the process.
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 fulfilling 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.
Circumstances for Adult Guardianships in Oklahoma
- Incapacitated and partially incapacitated persons;
- Property in Oklahoma belonging to a 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:
- 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 of the subject
- 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
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:
- The name and place of abode of the Ward and the name and address of the Guardian,
- Any significant change in the capacity of the ward to meet the essential requirements for their physical health or safety,
- The services being provided to the ward and the relationship of those services to the individual guardianship plans,
- Any significant actions taken by the guardian during the reporting period,
- Any significant problems relating to the guardianship which arose during the reporting period,
- The reasons, if any, why the appointment should be continued, and
- 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.
- Attachments required:
- An accounting of all monies received by the Guardian on behalf of the Ward,
- Any expenditures made by the Guardian on behalf of the Ward,
- Any compensation requested by the Guardian, and
- 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:
- To ensure the Ward’s proper care, safety, and protection,
- To ensure the support, health, and education of the Ward,
- 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,
- 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,
- To perform all duties and powers assigned by the court,
- Become and remain knowledgeable of the Ward’s capabilities, limitations, and needs (physical, mental, medical, etc.),
- Ensure the Ward has proper housing in the least restrictive, safest, and most normal manner,
- Determine the Ward’s place of residence (cannot move out of the county without court approval),
- Timely pay the Ward’s debts,
- Collect all debts owed to the Ward,
- Settle claims or lawsuits as authorized by the court,
- Sell real property, with court order only,
- Make investments, with court order only, and
- 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:
- 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, and
- 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 the Guardianship Attorney Oklahoma City Families Rely On.
An experienced Oklahoma City guardianship attorney is a vital resource when you are seeking guardianship. Speak to an experienced Oklahoma guardianship attorney at Cannon & Associates for legal guidance. If you are located in Oklahoma City, Edmond, Norman, Yukon, Mustang, The Village, Moore, or Midwest City, contact us today by calling 405-591-3935 and set up a free consultation or complete the CONTACT FORM ON THIS PAGE NOW.