A guardianship proceeding is when the court appoints an individual, the “guardian,” to take care of and manage the property of an incapacitated or partially incapacitated person. In Oklahoma, the person under the care of a guardian is known as a “ward.” A person is considered incapacitated if they are unable to make day-to-day decisions and unable to manage their finances. Incapacitated can mean physically incapacitated, mentally incapacitated, drug or alcohol dependency or developmentally disabled.
A guardianship may be necessary in some circumstances, but certainly not all. Prior to incapacity, if an individual has executed estate planning documents, including powers of attorney, the person named as their agent under a durable financial or medical power of attorney should be able to make decisions regarding care and finances without court intervention. If there is a dispute about the powers of attorney or if the power of attorney does not include all of the provisions necessary to care for the individual or their assets, a guardianship may be still be needed.
Once children with developmental disabilities or special needs reach the age of 18, they may still be dependent on their parents for support and assistance with daily care as well as management of their finances. A parent or parents would need to obtain guardianship of their adult child in order to continue to make decisions about their medical care, living arrangements and finances. If the young adult is eligible for government benefits, such as Medicaid and Supplemental Security Income (SSI), a guardianship may be necessary to assist them in applying for and managing these benefits.
As our aging population continues to grow, so does the number of people suffering from different forms dementia, including Alzheimer’s. Persons suffering from other forms of mental illness, including schizophrenia, as well as individuals who are incapacitated due to drug or alcohol dependence, may require appointment of a guardian to make decisions regarding their treatment and to help prevent them from harming themselves or others. In the absence of any estate planning documents, a guardianship would be necessary in order to care for an individual incapacitated due to dementia, mental illness or drug or alcohol dependence.
A guardian is generally a spouse, child, parent, or other close relative of the ward. There is an order of preference in appointing guardians that is followed by the Court that ensures that not just anyone may serve as a guardian. If the individual nominated a person to serve as their guardian in their estate planning documents, the person they nominated would take priority over others.
A guardian is responsible for the ward. The Court may appoint a guardian of the person or the property of the ward. Guardian of the person involves managing the ward’s living arrangements, medical care and other decisions related to personal care. The guardian of the property refers to managing the assets and property of the ward. The Court may appoint one guardian over both the person and the property, or the Court may appoint different guardians – one to serve as guardian of the person and one to serve as guardian of the property. It is also possible for the Court to appoint co-guardians.
There is a duty, known as a fiduciary duty, that the guardian owes to the ward. This means that not only does the guardian need to take care of the ward and his or her property, but they need to account for such things, and perform their duties in a good faith and diligent manner, always carrying out any duties or tasks assigned to them by a Court. The guardian is required to file an annual report with the court accounting for the assets of the ward and providing the court with an update regarding the care of the ward.
Generally, the powers and duties of a guardian will be set forth in an order the Court issues creating the guardianship. Broadly speaking, as a guardian, an individual has the ability to enter into contracts on behalf of the ward, manage the assets of the ward and care for the health and safety of the ward by making medical decisions. Certain decisions related to the ward will require court approval, including selling property. It is important to consult with an attorney experienced in handling adult guardianship matters to ensure you understand all of the duties and responsibilities this job entails.
A guardianship of an adult ends if the adult regains capacity. The restoration of capacity has to be determined by a Court before a guardianship can be terminated. A guardianship will also be terminated upon the death of the ward. The guardian will be required to file a final accounting with the Court before the guardianship case can be closed and the guardian released of his or her duties.
Most adult guardianships involve children with special needs who have reached adulthood and elderly individuals who can no longer take care of themselves. As the aging population continues to grow, it is important for individuals to plan on long-term care for themselves and their estate. By implementing a comprehensive estate plan while you are able to make these important decisions, you can avoid a guardianship proceeding in the event of your incapacity. If you have a parent or loved one who is struggling to take care of their finances or themselves without assistance, it may be beneficial to speak to an attorney about your options for a guardianship or other elder law alternatives.
The attorneys at Ball Morse Lowe have built a respected reputation over the decades for providing sophisticated counsel in complex oil, gas, and energy law matters, business law cases, transactions, estate planning, and family law matters. We take pride in assisting individuals and families with their legal concerns. Personable and responsive, our lawyers craft matter documents and develop strategies tailored to each client's unique goals and needs.
Ball Morse Lowe, PLLC, is committed to providing excellent service and sound solutions to our clients in a cost-effective manner. From our law firms in Norman, Oklahoma City, Dallas, and Denver, our attorneys provide services throughout the Oklahoma City, DFW, and Denver Metros and in other states, including Texas, North Dakota, Ohio, Colorado, California, Wyoming and New Mexico.