The decision to pursue guardianship of a vulnerable adult or senior is a big decision and often mired in complicated feelings and familial relationships. A common scenario that leads to guardianship includes, but is not limited to, caring for a disabled adult child or a senior with cognitive impairment. The requirements for a finding of incapacity, documentation requirements, who can be a guardian, the distinction between general and limited guardianship and more are governed by Title 30, codified as the Oklahoma Guardianship and Conservatorship Act.

Guardianship is trending upward in general, thus the need to protect vulnerable disabled adults and seniors continues to be an urgent issue. According to the 2022 Annual Report of the Community Aging, Living and Protective Services (CAP), Adult Protective Services (APS) completed 6,288 investigations with 3,078 substantiated allegations. Each of these referrals represents Oklahomans at risk whose families or loved ones may seek guardianship.

While an adult’s vulnerability may stem from any number of conditions, such as childhood disability or injury, one of the most common causes of incapacity for seniors is cognitive impairment in the form of Alzheimer’s disease. The Alzheimer’s Association estimates that 6.7 million Americans are living with Alzheimer’s, with an estimated 67,000 persons in Oklahoma alone.[1] ^[2] Additionally, they estimate that between 2020 and 2025, Oklahoma will have experienced an increase of at least 6.7% in the number of people with Alzheimer’s.[3]

DETERMINING INCAPACITY

Issuance of a general guardianship order for adult guardianship requires a finding that the proposed ward is incapacitated or lacks the capacity to make executive decisions for themselves. An incapacitated person is a person 18 years or older who is impaired by reason of one of the following:

• mental illness as defined by Section 1-103 of Title 43Aof the Oklahoma Statutes,
• intellectual or developmental disability as defined by Section 1430.2 of Title 10of the Oklahoma Statutes,
• physical illness or disability,
• drug or alcohol dependency as defined by Section 3-403 of Title 43Aof the Oklahoma Statutes, or
• such other similar cause, and

The proposed ward’s “ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that the person” either:

(1) lacks the capacity to meet essential requirements for physical health or safety, or

(2) is unable to manage financial resources.[4]

DOCUMENTATION REQUIREMENTS

Allegations of incapacity contained in both emergency and general (nonemergency) pleadings must be proven by evidence attached to a petition. If the situation is not an emergency, the petitioner should obtain medical documentation that proves the alleged medical condition exists. This documentation can include a letter from a doctor on their letterhead or routine medical paperwork with diagnoses, such as discharge paperwork. Routine medical reports, such as annual exam results, should be dated recently if possible. If the petitioner is asking for ex parte special guardianship letters, they should allege with as much specificity as possible and should seek to obtain a medical examination and/or records as soon as possible.

SPECIAL VERSUS GENERAL GUARDIANSHIP

Special Guardianship

A guardian appointed on an ex parte emergency basis of an adult is called a special guardian rather than a temporary guardian. The court may appoint a special guardian if:

There is imminent danger that the health or safety of said person will be seriously impaired or that the financial resources of said person will be seriously damaged or dissipated unless immediate action is taken; and [n]o other person appears to have authority to act in the circumstances or the guardian previously appointed is unable to or refuses to take action.

It is important to remember the request to appoint a special guardian may be included in the general petition or separately, but it must be filed along with the petition for general guardianship.[5]

General Guardianship

A general guardian is “a guardian of the person or of all the property of the ward within this state or of both such person and property.”[6] If the judge believes the guardianship should continue beyond the emergency, the special guardianship will be converted to a general guardianship at the show-cause hearing, which must be set within 30 days.[7]

WHO CAN BE A GUARDIAN?

Title 30 O.S. §4-105 provides a list of disqualifiers a proposed guardian must not meet to be eligible to serve as a court-appointed guardian. A guardian should not:

• be a minor or have been found to be incapacitated or partially incapacitated,
• be convicted of any criminal charges, be subject to any protective order or have any pending criminal cases (this applies to the applicant and any adult living in the household),[8]
• be insolvent or have filed for bankruptcy within the last five years,
• be indebted to the ward or
• be party to “a conflict of interest which would preclude or be substantially detrimental to the ability of the person to act in the best interest of the subject of the proceeding if such person is appointed.”[9]

Additionally, 30 O.S. §3-104 outlines a list of persons who have priority to be appointed as guardians. Topping the list is the person(s) who is nominated by the proposed ward in the proceeding, followed by their current guardian and then the person(s) nominated in their previously executed trust or power of attorney.

THE LEAST RESTRICTIVE ALTERNATIVE 

Guardianship of an adult should only be used as a last resort. It is best practice to determine whether guardianship is appropriate in the circumstances and, more importantly, is the least restrictive alternative. The least restrictive alternative means:

meeting the needs of an individual that restricts fewer rights of the individual than the appointment of a guardian or conservator including, but not limited to, supported decision making, appropriate technological assistance, appointment of a representative payee, and appointment of an agent by the individual including under power of attorney for health care or finances.[10]

Examples of alternative solutions to guardianship are:

• Limited guardianship (limited to either person or estate, allowing the ward to keep their decision-making authority in the other area)
• Durable power of attorney (either combined health care and estate or separate)
• Limited power of attorney (for limited or specific circumstances)
• Irrevocable trust
• Representative payee (for certain state and federal benefits)
• Case management through social services agencies to work on life skills, addiction, mental health or other applicable circumstances

The alternative solutions described above can be used for planning for known or unknown incapacity, but the most important distinction is that the alternatives require capacity on the part of the grantor. Therefore, if an alternative solution is no longer an option, guardianship may be explored.

When guardianship is appropriate in the circumstances, there are solutions for pro se individuals and attorneys who may be less familiar with this area of law.

ADULT GUARDIANSHIP HANDBOOK

The Oklahoma Legislature authorized a handbook to be prepared by the OBA Estate Planning, Probate and Trust Section and distributed by the Administrative Office of the Courts.[11] This handbook “shall be written in clear, simple language and shall include information about the laws and procedures which apply to adult guardianships and conservatorships and the duties and responsibilities of such guardians and conservators.” The most current version of the handbook (as of July 2023) includes plain language definitions, a guide to fiduciary duties and pro se resources, instructions and templates for both emergency and general pleadings for adult and minor guardianship.[12]

PRO SE GUARDIANSHIP CLINIC

The Oklahoma County Guardianship Clinic is a volunteer-run clinic that assists with the preparation of forms and advice for pro se guardians with minor and adult guardianship in Oklahoma County. Litigants can request assistance from attorneys over the phone or by meeting with a volunteer attorney in the clinic office at the Oklahoma County Law Library. Since its inception in 2019, the clinic has helped more than 930 clients through in-person assistance or by phone.

LEGAL AID SERVICES

Finally, Legal Aid Services of Oklahoma may assist the client through representation and/or legal advice and counsel, depending on the local office’s capacity.

CONCLUSION

Guardianship will continue to be an emerging and important area of law for everyday Oklahomans. It is often a last resort that results from bigger issues and can complicate other existing legal issues in very substantial ways. Attorneys can answer the call to assist their community by volunteering at a clinic, taking on a limited scope representation by helping to assist with the preparation of forms or even just sharing the handbook with a friend or colleague.

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ABOUT THE AUTHOR

Melissa Brooks is a solo practitioner who focuses on guardianship, basic estate planning and Section 18 expungement. Ms. Brooks earned her J.D. at the OCU School of Law with a certificate in estate planning with taxation.

 

 

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ENDNOTES

[1] Alzheimer’s Association. 2023 Alzheimer’s Disease Facts and Figures. Alzheimer’s & Dementia. 2023; Page 23, ¶2.

[2] Alzheimer’s Association. 2023 Alzheimer’s Disease Facts and Figures. Alzheimer’s & Dementia. 2023; Page 24.

[3] Alzheimer’s Association. 2023 Alzheimer’s Disease Facts and Figures. Alzheimer’s & Dementia. 2023; Page 23, ¶2.

[4] 30 O.S. §1-111(A)(12).

[5] 30 O.S. §1-110 and 30 O.S. §3-115(A) & (B).

[6] 30 O.S. §1-109(A).

[7] 30 O.S. §3-115(F).

[8] If any of these are met, the individual must disclose the case number to the court and may be ordered to do a background check.

[9] Id. at (A)(5).

[10] Page 4 of July 2023, Adult Guardianship Handbook, available at www.okbar.org/a2j/guardian (emphasis added).

[11] See 30 O.S. 1-124 for the statutory authorization.

[12] Find the forms at www.okbar.org/a2j/guardian.