Guardianship

If a person becomes "incapacitated," this means they are unable to manage their own financial affairs and/or personal affairs. Many people are under the mistaken impression that their spouse or adult children can automatically take over for the incapacitated person at that time. However, In Oklahoma no one is legally authorized to step into that role automatically. Thus, in order for others to be able to manage the Wards finances and/or personal affairs, a prospective Guardian must first petition the Oklahoma Guardianship Court, in the County in which the ward resides, to declare the ward legally incompetent.

When a person no longer possesses the requisite mental ability to manage his or her own affairs due to his or her medical or physical conditions, Oklahoma Guardianship law ensures the incapacitated person (the "Ward") will be treated with dignity and respect, their health care decisions be made and their property managed by a guardian who is appointed by the Court. The Guardian must prepare an annual accounting for the Courts review and approval

1. Attorney Representation

A person seeking to become the guardian for an incapacitated person needs to be represented by an attorney of their choice. As you may surmise, there is a great deal of legal drafting associated with the process. Typically, the attorney representing the guardian charges for their time on an hourly basis. Attorney fees and costs charged to the guardian for representing the guardian in the guardianship process can typically be paid from the incapacitated person's assets. This is a considerable relief to many guardians who cannot afford or do not want to personally pay for the incapacitated person's guardianship.

2. Petition to Determine Incapacity and Appoint Guardian.

With the information received from the client, the attorney working for the person or persons petitioning to be appointed as guardian will draft the following pleadings:

A. Petition to Determine Incapacity and Appoint Guardian;

B. Notice of Hearing Petition to Determine Incapacity and to Appoint Guardian;

C. Order Determining Incapacity of Ward.

D. Oath of Guardianship.

E. Order Appointing Guardian.

F. Letters of Guardianship

Once these pleadings are completed and signed by the petitioner, the petitioning attorney will file them with the court and set a hearing date

3. Court Appointment of an Attorney for the Alleged Incapacitated Person

The court then appoints an attorney to evaluate, inform, and advise the alleged incapacitated person of his rights and to represent him/her in Court. The court-appointed attorney is present at the hearings and at all times represents the incapacitated person and ensures their legal rights are protected.

4. Hearing on Incapacity

The Judge handling guardianship matters will set a Hearing to determine capacity or incapacity. Notices of this hearing are sent to all interested parties (i.e. Ward, members of the family, Veteran's Administration, etc.). If any interested party has an objection relating to the alleged incapacitated person's mental capacity or who should be appointed as guardian, he/she may present that objection at the hearing. The alleged incapacitated person has a right to be present at the hearing, however, the court-appointed attorney may waive his or her appearance if that person is not able to understand or communicate meaningfully.

The first part of the hearing is devoted to determining whether the alleged incapacitated person is truly incapacitated. To determine incapacity, the judge considers any medical evidence, the report of the court-appointed attorney, and any relevant evidence or testimony. When a person is adjudicated totally incapacitated, all the rights are taken from the ward except basic rights of privacy, dignity, etc.

5. Hearing to Appoint a Guardian (if determined incapacitated)

The second part of the hearing is devoted to determining if the Petitioner or some other person should be appointed as the guardian. The Oklahoma Guardianship Judge will consider evidence as to the Petitioner's qualifications and determine if the Petitioner is capable of serving as a Guardian. Persons who have committed a felony or certain crimes cannot serve as Guardians.

If the judge finds the Petitioner fit to be a guardian, the judge will enter Letters of Guardianship. The Letters of Guardianship evidence the Guardian's authority to act on behalf of the incapacitated person. Guardianship can be of the property or the person or of both.

When a person is appointed as guardian of the property, the judge will typically order a bond in the amount of the Ward's liquid assets.

6. Duties of Guardian

After the Letters of Guardianship are signed by the Judge, the Petitioner/Guardian must complete and file an Initial Plan for the Care of the Person, Plan for the Care of the Property, and an Inventory of the Wards assets.

The Plan for the Care of the Person outlines the Guardian's plan for the Ward with respect to the Ward's residence, health care, doctors, social activities, etc.

An Oklahoma Guardian is responsible for managing the Ward's assets. As such, the Guardian must file with the Court an Inventory evidencing all of the Ward's assets as of the date the Guardian was appointed. A guardianship account is established at a local bank and titled as follows: "Guardianship of (Ward's name), (Guardian's name), Guardian."

Each year thereafter, an Annual Plan for the Care of the Person, Plan for the Care of the Property, and Annual Accounting must be filed. The Court will set a hearing to review and audit the Annual Reports and will question all monies being deposited and disbursed from the guardianship accounts. Therefore, it is extremely important that a detailed record and corresponding documentation be kept of all financial transactions. The court will readily address any detection of misappropriation of the ward's assets or failure to comply with court requirements. The Court can impose appropriate sanctions.

7. Fees for Acting as Guardian

Guardians are typically entitled to a fee for their time in serving as a guardian. However, the taking of a fee is not required. Fees are typically based upon a reasonable hourly rate as determined by the court.