Overview of Oklahoma Legal Guardianship
Legal guardianship is a legal designation in Oklahoma that gives a person, called a "guardian," the authority to act on behalf of another person, called a "ward." Guardianship can be granted over an adult or a child, but either way, the purpose of the guardianship is to provide a decisionmaker for people who cannot care for themselves or their financial affairs. In this way , guardianship is similar to conservatorship. There are several types of guardianship, such as full and limited guardianship, financial and medical guardianship, minors’ wards and disabled adults, and temporary and permanent guardianship. The Oklahoma Statute 30 O.S. § 11-101 includes many definitions of different types of guardianship. The person who becomes the guardian does not necessarily need to be related to…
When is Guardianship Necessary?
There are various reasons one might need a legal guardianship in Oklahoma. Parents may desire a guardianship for their minor child. This type of guardianship is more common when the child is nearing the age of majority and the parents would like to ensure the financial and medical decisions are not made solely by the child or others.
Individuals may also desire a legal guardianship if their spouse or family member has disabilities that may impact their ability to make decisions for themselves. There are several types of legal guardianships for individuals with disabilities in Oklahoma.
Legal guardianships may also be necessary for an adult if he or she suffers from a mental health disorder. The individuals may seek the help of an attorney to assist them with this process.
In addition, guardianship can be created for the care and management of estate assets in cases of incompetency or disability. Generous individuals may choose to create a guardianship on behalf of individuals in certain cases. However, an attorney can help determine the most appropriate method for doing so.
Types of Oklahoma Guardianship
Types of guardianship in Oklahoma
In addition to the traditional guardianship of the person, guardianship of the estate, and even guardianships for minors, Oklahoma law provides for several other types of guardianship.
General Guardianship
With guardianship of the person, a general guardian also is guardian of the estate. A final accounting is required for a general guardianship. A limited guardianship (to be discussed shortly) allows the Court to restrict the powers of the Probate Court to grant letters of guardianship. However, the Oklahoma statutes do not require the Court to restrict its powers.
Limited Guardianship
Similar to a general guardianship, limited guardianship allows restrictions to the powers of the "general guardian" or allows the Court to limit the letters of guardianship to certain matters. Similar to a general guardianship, a final accounting is also required for a limited guardianship of the person as well as of the estate.
Guardianship of the Estate
In the event that a minor inherits property, the Probate Court has the authority to appoint a guardian of the estate and of the person.
However, it is important to note that unless the guardian of the estate is a parent of the minor, the guardian must be a bank, building and loan association, credit union, life insurance company, or national banking association. (25 O.S. § 41)
Most often in the case of a guardian of the estate for a minor, the estate consists of life insurance proceeds or survivor benefits from an annuity. However, in some cases where a parent dies suddenly, there may be a situation where the property belonging to the minor takes on the look of a trust, thus allowing the Court to appoint a private non-corporate trustee or guardian.
Process of Gaining Guardianship
The process of obtaining guardianship in Oklahoma generally begins with the filing of a petition in the appropriate district court of the county in which the ward resides. The petition must allege that the person for whom guardianship is sought is either a minor child or an incapacitated person.
Once a petition has been filed, a copy will be served upon the alleged incapacitated person, along with a summons to appear at a hearing (the "guardian hearing"). If the alleged incapacitated person is a minor child, the parents of such minor child must also be served with copies of the petition and summons to appear at the hearing, along with a notice to parent(s) that a hearing will be held to determine whether or not a guardian will be appointed over the minor child.
In addition to the personal service of copies of the petition and summons, the court will also require that a written statement from the local medical center or medical doctor of the alleged incapacitated person be filed in order to determine the alleged incapacitated person’s capacity to act on their own behalf. This written statement, also called a "court report," must be filed at least two days prior to the guardian hearing. In addition, at any time before the guardian hearing has commenced, any other interested party may file a written statement with the court for consideration during the guardian hearing. Such interested party may include the relatives of the alleged incapacitated person, the alleged incapacitated person’s former attending physician, or any other person having information concerning the alleged incapacitated person.
The appointment of a guardian is a legal action. Therefore, to obtain guardianship over another person, the person applying to be appointed as guardianship and the alleged incapacitated person must both appear as parties before the court at the guardian hearing.
Oklahoma Guardianship Forms Explained
There are specific Oklahoma forms which must be filled out and submitted to the court as part of a guardianship petition. These include the Petition for Appointment of Guardianship; physician’s or psychiatrist’s examination and report forms; a medical certificate, certifying the state of the incapacitated person; and a bond. You must also prepare an Order Appointing Guardian with Letter of Guardianship.
Blank forms are available through the court’s website in either Alegent PDF format, or as a Microsoft Word® document. While these fillable forms may be convenient, there are some serious drawbacks. A fillable form will be saved in a standard file format on your hard drive, and then printed out with all the information you typed in. That information may contain personal identification information — like your Social Security number or driver’s license number. Mine gets on the form sometimes, which freaks me out because I’m a bankruptcy attorney and I don’t want anybody to steal my identity. So, when I fill in those forms, I always print out a copy of what I did and then kill the file on my hard drive so it can never be recovered . You might want to do this, too.
The Physician’s Certificate of Incapacity form is the most complicated one in the packet. You really should leave some instructions for the physician on how to properly fill it out. The judge will not appoint a guardian unless the physician says in the report that the individual in question cannot adequately care for themselves, cannot make adequately general decisions concerning their personal health and welfare, or cannot adequately manage their money. You should probably have to explain that to the physician so they know what to do.
You may also need to have a Financial Plan form, which requires a statement of the assets and income of the Person alleged to be Incapacitated. How you divide up the List of Assets and Income depends on whether the person resides in Oklahoma — see page 19 of the document packet for an example.
Don’t file the guardianship petition in Oklahoma if the person you are trying to protect resides in another state. Go to that state, as it has jurisdiction over the case.
Common Issues in the Guardianship Process
Successfully navigating the guardianship process in Oklahoma requires the petitioner to remain vigilant because the court process involves multiple steps. Some challenges that can arise in pursuing legal guardianship include:
1. Expedited hearings for emergency situations
From the time of filing of the petition, the court is bound by docketing requirements. In other words, the court must act on the request within a certain time frame. However, if there is a true emergency situation, such as a physical threat to the ward or a situation where the ward’s assets are at risk of being seized or liquidated, the petitioner can request an immediate hearing on the entry of an order granting emergency relief.
2. Difficulties locating relatives
If the ward has been isolated and placed in a long-term care facility without notice to other family members, the court requires that other interested parties be located and afforded an opportunity to join in the proceeding. We have represented clients in situations where the petitioner was estranged from other family members, and it took extensive efforts to locate other family members. The court will typically afford the petitioner at least one delay, but if other family members cannot be located, the court will require that publication be completed in order to notify anyone who may have an interest in the guardianship.
3. Real property transfers
We have experienced situations where a relative of the ward transfers real property just before the public guardian opens a case. These instances typically require a complete inventory and appraisal to be filed, in addition to petitions for adjudication of claims against the ward’s estate, and petitions to recover assets on behalf of the ward. If a family member has the physical ability to visit the ward on a consistent basis, they can accompany the ward to the public guardian for the evaluation process. An interested party can also object to the transfer of real property or other assets, if they can demonstrate that the debtor was not competent to enter into a contract.
4. Health insurance or Veterans benefits
If there is a question about the eligibility of the ward for Medi-Care or VA benefits, the case may be put on hold for months to determine eligibility. A good attorney can assist the guardian with these issues.
5. Guardianship of minors
Establishing guardianship over minors requires the petitioner to file the petition in the very county that the minor resides in. Once again, the petitioner is required to actually list the names and addresses of all interested parties to the petition.
Oklahoma Guardianship Forms and Support
An essential part of the legal guardianship process is a vast array of resources and community support geared toward assisting both current and potential legal guardians. The Oklahoma Department of Human Services provides a wide range of online resources including detailed information about the various forms of guardianship available in the state. From general guardianship resources, to information about guardianship for disabled adults and children, and those who care for them, including links to the Medicaid Choice program, the Aging Services Division, and the SoonerCare website — all of which can offer assistance or guidance in some aspect of the guardianship process. Additionally, DHS provides contact information for local offices, legal district offices, and SoonerCare customer service.
Other governmental resources of importance include the National Guardianship Association and the Oklahoma Guardianship and Conservatorship Network, which is an effort to enhance the collection of data and research on guardian and conservator activities across the state. The purpose of this network is to offer hope to Oklahomans who need protection for their assets and to promote better public policy when it comes to managing the care of the most vulnerable citizens . The Oklahoma Bar Association also provides general tips and a summary of the Oklahoma Guardianship Code, as well as answers to frequently asked questions, resources for seniors, people with disabilities, and students, and a Directories of lawyers by practice area, for those who wish to enlist the services of an attorney with guardianship experience.
For those who need additional support, the Oklahoma Alliance on Reentry & Employment also provides a list of agencies, services and resources available to assist, advocate, and educate people about the realities and challenges faced by guardians and those they care for. This resource includes a link to Court Appointed Special Advocates (CASA) of Oklahoma, whose mission is to provide advocacy for victims of child abuse and neglect in dependency cases filed in Oklahoma. In addition to these vital links, there are numerous support groups located within the state, the largest of which seems to be "Grandparents Raising Grandchildren," which offers assistance to those who have taken on the parenting role for grandchildren, great-grandchildren, or other close relatives.
While the process of becoming a legal guardian can be arduous and complex, there are many resources and support groups available for those currently or potentially dealing with these issues, which can make the transition period much easier while developing new routines and experiencing life-altering changes. By utilizing all of the available services, guardianship can be a positive experience for both the caretaker and those receiving care.
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