The appointment of a guardian is a way to ensure the care of a person (the “ward”) who cannot adequately provide for their own physical or financial well-being. The guardian is legally appointed to act on behalf of the ward when a court finds the ward is incapacitated.
Guardianship Requires Going To Court
Appointment of a guardian requires a court proceeding and a judge’s order. In Oklahoma, adult guardianship authority can be generally divided into guardianship of the person and guardianship of the property. While a guardian can be authorized in one or both capacities, the law requires that guardianships be limited to only what is absolutely necessary to provide proper care of the ward and their property. For that reason, guardianships can also be categorized as:
“general” meaning the guardian has broad authority to act;
“limited” where the court gives the guardian only a defined scope of authority; and
“special” guardianship where a guardian is appointed for an emergency purpose, generally not to exceed 30 days.
Courts have broad authority to appoint guardians when needed, including the ability to tailor the guardianship to the specific situation. In Oklahoma, “any person interested in the welfare of a person” may petition a court for guardianship. This statute is broad and inclusive, but can also set-up fights among family and friends of an incapacitated person regarding who will be the best guardian.
Fortunately, the law also gives an order of preference, with greatest preference given to the person nominated by the subject of the guardianship. Nomination is most often included as part of a power of attorney.
Guardianship Is Not The Best Way To Provide For Care
Petitioning for guardianship is often the first way in which disputes over care or financial decisions play out. It is not unusual for an upset family member to try to be appointed guardian. When a petition is filed, other family members are given notice and the court will often appoint an attorney to represent the ward.
Guardianship proceedings are like a lawsuit, where disagreement about who should be guardian requires each person to hire an attorney and argue their side in court. The financial and emotional cost to a family can be very high.
This is one important reason for estate planning and creating the documents that express your desires for care. Without such planning in place, there is no assurance that your first choice, often your spouse or a child, will become guardian in the event you become incapacitated.
A general guardian of the person and property will be granted broad authority to act, which can include decisions about renting or selling property, the manner in which the ward is cared for, and how money is spent or invested. However, many decisions by the guardian, including decisions that may be necessary to obtain VA benefits or Medicaid, will require the approval of the judge, meaning more time and money spent going to court. Court oversight of the guardianship will continue until the ward dies or is no longer incapacitated, which can sometimes mean years of hassle and court costs.
There are times when guardianship is necessary. However, it is always preferable to have planning documents in place such as a well-drafted power of attorney, to resolve care issues, rather than having to go to court. Guardianship is similar to trusts and probate, in that a little planning in advance can avoid expensive and public court proceedings later.
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