Adult Guardianship FAQs

Estate planning is designed to help avoid the need for a guardianship; however, it is not always possible to avoid. In this blog, we will answer some frequently asked questions about the adult guardianship process. 

When is an adult guardianship necessary?

An adult guardianship is necessary if a person is incapacitated, meaning they have a mental, intellectual, or developmental disability, physical illness or disability, and/or drug or alcohol dependence that impairs the person’s ability to receive and evaluate information effectively in such a way that the person is unable manage his or her physical health and safety or manage his or her finances. 

If your family member has a mental or physical disability that hinders his or her ability to manage healthcare and financial decisions, it may be time to consider guardianship. This is also true if your family member has shown a significant decrease in cognitive ability and/or memory caused by conditions like dementia or Alzheimer’s Disease. A guardianship may be required for a disabled child, once the child attains the age of 18, so that the parents can continue to care for the child and make decisions on the child’s behalf. 

Does my loved one need a guardianship if they have a financial and medical power of attorney in place?

If your loved one has executed financial and medical powers of attorney, the person named as agent in those documents will likely be able to make medical and financial decisions for your loved one without involving the court. If your loved one does not already have these documents in place and still has the mental capacity to sign these documents, you may consider encouraging them to seek the advice of an experienced estate planning attorney and executing these documents before they reach the point a guardianship may be required.

What is involved in filing for guardianship of a family member?

To obtain an adult guardianship, a person must submit a petition for guardianship to the court stating the nature and degree of the family member’s incapacity, any relevant facts and the estimated value of the person’s assets. Notice of the petition and the hearing must be provided to the people designated in the statute as being entitled to notice, including the person for which the guardianship is sought. Typically, medical documentation is required to show the diagnosis and prognosis of the person’s condition and the extent of their incapacity. The Court may also require that any proposed guardian submit to a background check prior to being appointed.

What steps are involved in obtaining guardianship?

After filing the petition for guardianship, the court will schedule a hearing date. Notice of the hearing must be given to the persons entitled to notice as set forth in the guardianship statutes. At the hearing, the Judge may require testimony and will make a determination as to whether the person is incapacitated and whether a guardianship is necessary. If the Court finds that a guardianship is in the best interest of the individual and is necessary, the Judge will enter an order appointing a guardian and the guardian will sign Letters of Guardianship. A plan for the care and treatment of the incapacitated person and a plan for the management of the property of the incapacitated person must be filed with the Court along with an inventory of the individual’s estate. An annual accounting and report will also be required. 

What are my responsibilities as guardian?

Under Oklahoma law, a guardian is charged with protecting the rights and managing the finances of the incapacitated person for which they are responsible. More specifically, this means properly monitoring and managing the person’s healthcare, living arrangements and financial assets and providing required updates to the Court through guardianship proceedings.

If you have additional questions about the adult guardianship process, please do not hesitate to reach out to our office.