Oklahoma Bar Journal
The New Public Handbooks for Oklahoma Minor and Adult Guardianships
By A. Daniel Woska
Guardianships are often a part of estate planning, either intentionally or as a result of an unexpected circumstance. The express purpose of the Oklahoma Guardianship Act1 is to promote the general welfare by establishing a system of general and limited guardianships for minors and incapacitated persons.2 The system established by the act is intended to allow the “participation of such persons, as fully as possible, in the decisions which affect them.”3 In this regard, the courts handling guardianships are to encourage maximum self-reliance and independence by the incapacitated person and make orders only to the extent necessary, given the ward’s limitations.4
CREATION OF NEW GUARDIANSHIP HANDBOOKS
In May 2019, the Oklahoma Legislature amended 30 O.S. §1-124 of the Oklahoma Guardianship Act, which requires a handbook for guardians and conservators.5 The Administrative Office of the Courts (AOC) had previously prepared and updated the handbook as required under the act, but the amendments to §1-124 shifted responsibility for the handbook to the Oklahoma Bar Association.6 The OBA asked the Estate Planning Probate and Trust Section (EPPT) to work on the updates. This article will discuss the changes to the guardianship handbooks implemented pursuant to §1-124.
HANDBOOK REQUIREMENTS UNDER 30 O.S. §1-124
As stated above, §1-124 now requires the OBA (rather than the AOC) to prepare guardianship handbooks. Prior to 2019, the AOC was also required to provide the handbooks to district court clerks.7 Under the amended statutes, the AOC no longer has to distribute paper copies and is now only required to provide a link to the handbook on the OSCN website at www.oscn.net.8
Further requirements under §1-124 for the handbook are:
- Written in clear, simple language;
- Information about the laws and procedures that apply to guardianships and conservatorships;
- A summary of the duties of guardians and conservators, including statutory notices, timetables and required court approvals.
- An emphasis on the significance of timely accountability to the court and the ward and
- Sanctions and penalties for failure to comply with the law or orders of the court.9
SEPARATE HANDBOOKS FOR ADULTS AND MINOR GUARDIANSHIPS
There are generally two types of guardianships – adult guardianships and minor guardianships. Adult and minor guardianships were included together in the prior handbook.10 However, due in part to the continued increase in the number of “pro se” filings by nonlawyers and the need for more information and forms to be available for these potential nonlawyer guardians, the OBA determined there should be separate handbooks for minor and adult guardianships. As a result, the EPPT formed two subcommittees: one to prepare the Adult Guardianship Handbook (AGH) and the other to prepare the Minor Guardianship Handbook (MGH). The two new handbooks were completed and posted on OSCN in June 2020.11
CONSIDERATIONS BY THE SUBCOMMITTEES IN CREATING THE NEW HANDBOOKS
When a guardianship is initiated, there is usually a party, either an adult or a minor, who is in need of a guardian for a variety of reasons. The reasons may become more important in the adult guardianship realm because they often involve mental or physical conditions that serve to limit the ability of an individual to properly conduct their own business.
In connection with a minor guardianship, it is often filed because parents are unable to care for their children for a variety of reasons, e.g., due to drug and alcohol addiction or incarceration. In those cases, it is often a grandparent, aunt, uncle or close friend who takes on the duties and responsibilities of the guardian for the minor child. The minor child requires a guardian to be available for such things as the administration of medical assistance, financial assistance, to engage with the public school system and to legally sign off on documents that are necessary and appropriate for the child who is going to school. Once the minor reaches the age of 18, the guardianship terminates unless the minor is suffering from a disability that may require the court to address the need for adult guardianship.
The process of gaining guardianship requires the filing of pleadings. Prior to the filing of those pleadings, an effort must be made to provide sufficient statutorily required background information to the court to serve as a basis for the granting of the guardianship. The guardianship statutes make it clear the court must weigh and balance the desire to ensure the ward of the court is allowed to handle matters as capably and competently as possible with the assistance of the guardian. Guardianships are never forever – they are granted for a period of time when an individual's needs may compel the assistance of a guardian through the court procedure.
HANDBOOK OVERVIEW FOR GUARDIANS OF MINOR CHILDREN
Section I of the MGH provides general information on the guardianship of minors under Oklahoma law and advice on when an attorney should be consulted.12 Section II contains key definitions from the act relevant to guardianships of minors under 30 O.S. §1-111.13 Section III provides an overview of the types of guardianships over a minor, including general and limited guardianships,14 emergency guardianships15 and guardianships by power of attorney.16
Further sections of the MGH provide more specific information as to:
- Who may be appointed as a guardian (Section V)17
- Statutory notices required under 30 O.S. §2-201 (Section VI)18
- Required court approvals (Section VII)19
- A guardian’s accountability to the court (Section VIII), including the guardian’s duties under the act20
- Accountability to the ward (Section IX), which details duties owed by the guardian to the ward21
- Confidentiality (Section X) of certain confidential information submitted during proceedings22
- Sanctions and penalties for noncompliance (Section XI)23
- An overview of the Indian Child Welfare Act (Section XII) and its applicability to the guardianship of minors24
- A list of helpful state and federal resources for guardians of minors25
Probably the most important resource included with the MGH is a separate link with a detailed step-by-step checklist for obtaining guardianship of a minor, which contains all the necessary forms (which should also be helpful to attorneys practicing in this area).26
The forms provided with the handbook are:
- Background check forms
- Decree and order appointing a guardian
- Guardian ad litem datasheet
- Information sheet
- Letters of guardianship
- Nomination of a guardian by a minor 14 years of age or above
- Notice for hearing petition for appointment of a guardian
- Order for hearing petition for appointment of a guardian
- Pauper’s affidavit
- Petition for letters of guardianship (minor)
- Petition exhibit “a”
- Petition exhibit “b”
- Petition for custody by abandonment
- Plan for the care and treatment of the ward(s)
- Plan for the management of the property of the ward(s)
- Waiver of notice and/or consent to the appointment of a guardian
HANDBOOK OVERVIEW FOR GUARDIANS OF ADULTS
As with the MGH, the AGH provides general information on the guardianship of adults under Oklahoma law and advice on when an attorney should be consulted.27 Section II contains key definitions from the act relevant to guardianships of adults under the act.28 Section III provides an overview of the types of guardianships over an adult, including general and limited guardianships29 and special guardianships.30
Further sections of the AGH provide more specific information as to:
- Who may be appointed as a guardian (Section IV)31
- Statutory notices required for general guardianships (30 O.S. §3-110) and special guardianship (30 O.S. §3-115) (Section IV [sic])32
- Required court approvals (Section V)33
- Accountability to the court (Section VII [sic])34
- Accountability to the ward (Section VIII), which details duties owed by the guardian to the ward35
- Rights of the ward (Section IX)36
- Confidentiality (Section X) of certain confidential information submitted during proceedings37
- Sanctions and penalties for non-compliance (Section XI)38
- An introduction to conservatorships (Section XII)39
- An overview of the Veterans Volunteer Guardianship Act (Section XIII)40
- A list of state and federal resources for guardians of adults41
As with the MGH, the AGH also provides a separate link that contains the necessary forms for obtaining guardianship of an adult, but there is not a separate checklist.42
The forms provided with the handbook are:
- Petition for guardianship
- Notice of petition for guardianship
- Notice of hearing petition for letters of guardianship
- Order for hearing petition for guardianship
- Order appointing a general guardian
- Letters of special guardianship, guardian’s oath
- Letters of general guardianship, guardian’s oath
- Affidavit of mailing and personal service
- Order appointing a special guardian
- Application for special guardianship
- Pauper’s affidavit
- Inventory of the ward’s estate
- Plan for the care and treatment of the ward
- Plan for the management of the property of the ward
- Order approving the plans for care and management
- Annual report and proposed plan for the care and treatment of a ward and management of the ward’s property
- Guardian’s bond
- Order approving conveyance of real property
- Petition for conservatorship
- Consent by the ward to the appointment of conservator
- Order of court identifying who receives notice of the petition for conservatorship
- Order appointing a conservator
- Affidavit of mailing initial report and plan of management
- Letters of conservatorship
- Oath of conservator
- Initial report of conservator
- Plan for the management of the ward’s estate
- Verified application and petition for conveyance of real property
- Notice and order of hearing verified application and petition for conveyance of real property
- Affidavit of mailing verified application and petition for conveyance of real property
- Motion to discharge conservator
- Notice and order of hearing application for discharge of conservator
- Order dissolving conservatorship and discharging conservator
As stated in the introduction to both the Minor and Adult Guardianship Handbooks, guardianship and conservatorship laws are tricky, and Title 30 contains more than 100 statutory provisions. The updated handbooks, the checklist for obtaining guardianship of a minor and forms for guardianships and conservatorships should prove to be an important resource to help both lawyers and nonlawyers.
Author’s Note: This article is dedicated to and would not have been possible without all the attorney volunteers and law students who worked on the Handbooks for Minor and Adult Guardianships. The subcommittee members are: A. Daniel Woska, Shannon D. Taylor, Keith Jones, Kathleen Wallace, Sara Murphy Bondurant, Leslie Sparks, James Milton, Todd Alexander, Farrah Burgess, Tsinena Thompson, Victoria Holland, Garrett Eller, Howard Henrick, Joanne Horn, Terrell Monks, Stephanie Alleman, Denis Rischard and Judge Richard Kirby; legal interns Ann M. Butler and Hannah W. Lunsford; OBA Executive Director John Morris Williams; OBA Management Assistance Program Director Jim Calloway; and with gratitude to Katheryn Koss, for sharing her work, Grandparenting in Oklahoma, Law & Resources for Grandparents and Other Relatives, Senior Law Resource Center (2010).
ABOUT THE AUTHOR
Daniel Woska is the owner of The Woska Law Firm PLLC, located in the offices of Devol & Associates in Edmond. He concentrates his practice in estate planning, estate and trust administration, special needs trusts, tax planning, guardianship, trust and probate litigation as well as preparing antenuptial agreements.
- 30 O.S. 2019 §1-101, et. Seq.
- 30 O.S. §1-103(A).
- 30 O.S. §1-103(B).
- SB 989 amended 30 O.S. 2011 §1-124, which previously required the AOC to prepare and update the handbook. SB 989 was signed by Gov. Kevin Stitt on May 9, 2019, and became effective Nov. 1, 2019.
- HB 1078 was adopted in 1988.
- Compare 30 O.S. 2011 §1-124 with 30 O.S. 2019 §1-124.
- 30 O.S. 2019 §1-124.
- The old version, A Handbook for Guardians, can still be found at oklahomafamilynetwork.org/wp-content/uploads/2018/04/Amber-McConnell-Guardianship-Handbook.pdf.
- The Adult and Minor Guardianship Handbooks are available for review and download at www.okbar.org/a2j/guardian.
- A Handbook for Guardians of Minor Children at 1. This handbook is available to review and download at www.okbar.org/a2j/wp-content/uploads/sites/5/2020/06/Minor-Guardianship-Handbook-General-Information.pdf
- Id. at 2-6.
- Id. at 6 (citing 30 O.S. §1-109).
- Id. (citing 43 O.S. §110(B)(2); 43 O.S. §107.4 and 30 O.S. §2-101(B)(4)).
- Id. (citing 10 O.S. §700).
- Id. at 6-7 (citing 30 O.S. §§2-102-105, 3-102, 4-105).
- Id. at 7-8.
- Id. at 9-10.
- Id. at 10-13.
- Id. at 13-14.
- Id. at 15.
- Id. at 16-19.
- Id. at 20.
- The MGH Checklist and Forms for Obtaining Guardianship of a Minor are available for viewing and download at www.okbar.org/a2j/wp-content/uploads/sites/5/2020/06/Minor-Guardianship-Handbook-Checklist-and-Forms.pdf
- A Handbook for Guardians of Adults at 2. This handbook is available to review and download at www.okbar.org/a2j/wp-content/uploads/sites/5/2020/06/Adult-Guardianship-Handbook-General-Info.pdf
- Id. at 3-5.
- Id. at 6 (citing 30 O.S. §1-109).
- Id. (citing 20 O.S. §3-115).
- Id. at 6-7.
- Id. at 7-9. This section is also numbered as Section IV.
- Id. at 9-10.
- Id. at 11-13.
- Id. at 13-16.
- Id. at 16-17.
- Id. at 16-17.
- Id. at 17.
- Id. at 17-23.
- Id. at 23-26.
- Id. at 27.
- The Forms for Obtaining Guardianship of an Adult are available for viewing and download at www.okbar.org/a2j/wp-content/uploads/sites/5/2020/06/Adult-Guardianship-Handbook-Checklist-and-Forms.pdf. A detailed checklist is not included with the forms.
Originally published in the Oklahoma Bar Journal – OBJ 92 (February 2021)