The basic concept of guardianship is to provide physical and/or financial protection to individuals who are unable to provide it for themselves. It is a legal proceeding in which the court may appoint an someone to be responsible to care for an individual unable to care for themselves. Oklahoma law allows for guardianship of both adults and children, However, important stipulations must be met and proven to the court before a petition in granted.
When is a Guardianship Needed?
Circumstances can arise that place an adult or child in a vulnerable position and in need of someone who can legally advocate for their best interest. Often, these involve aging individuals who have fallen ill and minor children who are in need of a stable and safe environment. However, it can also include adult individuals who suffer from severe mental illness or are incapacitated due to an accident.
Adult Guardianship
If an adult is physical or mentally incapable of taking care of themselves, a responsible loved one may step in and apply for guardianship. The most common adult guardianships involve an elderly parent becoming the ward of a son or daughter. For example, guardianships are frequently established for individuals suffering from dementia or Alzheimer’s. This allows the court-appointed guardian to manage financial and health care decisions.
Child Guardianship
When a child in a dangerous environment or does not have a parent fit to care for his/her needs, a family member can step in to act as legal guardian. Most often, this is a grandparent but it can also be an aunt, uncle or even an adult sibling. The purpose of a child guardianship is to provide the minor a safe, stable, and loving home where needs can be met. The most common cases of child guardianship involve a parent(s) struggling with drug or alcohol abuse, domestic violence and incarceration.
Type of Guardianships in Oklahoma
In Oklahoma, there are three types of guardianship: general, limited, and special.
General
A general guardianship grants full authority and responsibility for a child or an adult. This includes care of the individual as well as their property.
Emergency (Special)
A special guardianship is similar to a general guardianship but is granted due to an emergency situation. For this reason, it is often referred to as an emergency guardianship. When a special guardianship is granted, a show cause hearing is scheduled within ten days to prove to the court that a general guardianship is necessary.
Limited
A limited guardianship grants limited authority over an individual and/or their property.
Are Guardianships Permanent?
Guardianships are not intended to be permanent and will be terminated as soon as the court determines it is no longer necessary. For example, in a minor guardianship a parent or parents are given a plan to complete. Once they have completed the court ordered plan, they may file a motion to terminate the guardianship and restore parental custody.
Termination of adult guardianships are less common. This is due to the fact that they are most commonly ordered with adults who suffer irreversible illnesses that limit their mental capacity. However, in cases where an individual is incapacitated due to an accident or illness and they later become well, a need for guardianship will no longer exist and can be terminated. For example, an individual may be involved in a serious accident and spends months in the hospital in a coma. If he later wakes up and makes a recovery, the guardianship is no longer necessary.
The court may also terminate or transfer guardianship if the guardian fails to fulfill his/her obligations to the ward and appoint a substitute guardian. For example, if the current guardian is failing to provide the ward a safe environment, another family member may file a motion to have the guardianship transferred. If allegations are substantiated, the court may grant the motion for substitute guardian.
A guardian is an individual appointed by the court to care for a minor or an incapacitated adult.
A ward is an individual who has been placed under the care of a guardian by court order.
Once a guardian is appointed to care for an individual, he/she must follow the rules set forth by the court. The guardian is fully responsible for ensuring the health and safety of the ward. Oklahoma law also requires the guardian to file an annual report to the court detailing financial transactions, healthcare, etc.
The best way to avoid the need for a guardianship is to choose a trusted individual and assign them as Power of Attorney. If you are uncomfortable with a power of attorney, you can address guardianship in your estate planning documents.