OK Guardianship Defined
A guardianship is a legal relationship between a competent adult and a ward in which the guardian has rights and powers that and duties of a parent. The powers and duties of guardianship are generally set out by statute. The guardian has a duty to act for the benefit of the ward, which is subject to control and direction of the Court for the public interest and the protection of the welfare of the ward. Oklahoma Statutes Title 30, Section 1-111 (A.) (1.)
A guardianship is established by the District Court, and orders are granted after a judicial finding that a guardian is necessary to protect and care for the person or estate or both. The process for obtaining an order appointing a guardian generally involves the filing of a petition in the District Court containing sufficient evidence establishing that the appointment of a guardian for the benefit of the ward is necessary.
A guardian may be appointed for a minor to oversee the care of the person and estate of a minor. Oklahoma Statutes Title 10 , Section 1101. Et seq. Under Oklahoma Statutes Title 30, Section 1-113, when the guardianship of a minor is terminated, the former guardian must deliver the ward’s estate to the ward, the ward’s heirs, or the person legally entitled to it.
A guardian may also be appointed if an adult is either unable to make or communicate decisions to such an extent the person lacks capacity to do so. Oklahoma Statutes Title 30, Chapter 1, Section 122-1. When a guardian is appointed for a person aged 18 years or older, the court will appoint the shortest term possible, and not for longer than the life of the ward. The Court has jurisdiction to appoint a guardian for an adult ward, or provide oversight for the estate of the ward. Oklahoma Statutes Title 30, Section 1-113 (B).
Various OK Guardianship Forms
There are a variety of forms that may be used in an Oklahoma guardianship proceeding. The type of form that needs to be used will typically depend on the circumstances of the case. The most common forms that are used for guardianships include a petition for guardianship, notice of proceeding, consent of the protected person, consent of the necessary parties, the inventory and appraisement form, a bond form, and the order appointing the guardian.
A petition for guardianship is a form that is filled out by the petitioner, providing the court with information so that the court can determine if a guardian is necessary. This will include information about the protected person (the incapacitated person) and the proposed guardian. A petition for guardianship will need to have signatures from the necessary parties for the court to accept it.
A notice of proceeding form is a document that is provided to the necessary parties in order to inform them of the proceedings regarding granting guardianship. The parties that will be entitled to receive notice include the spouse and children, any other adult children, and any other person that is likely to have something to do with the protected person.
Consent of the protected person is a form that is used to have the protected person sign off on the appointment of a guardian. This form is typically used if the protected person is still mentally competent to handle their own affairs, but wishes to have a guardian appointed for them nevertheless.
Consent forms are forms that are used to have other people in the interested in the proceeding sign off on the appointment of a guardian. These forms are usually used for close relatives when the protected person is not competent enough to consent, but the family is on board with the appointment.
Inventory and Appraisement is a form that is typically used after the guardian has been appointed and it is time to determine the property that the protected person owns and what kind of money the person has in the bank. This will help determine what will happen with that property once it is in the hands of the guardian. In addition to listing the property and bank accounts that the protected person has, there will also be a section to determine the value of the property.
Then, the court will need an order appointing the guardian, ordering anyone who did not show up at the court hearing or was otherwise unable to consent to the guardianship to either seek legal counsel and file an answer or else either accept the full weight of the court’s order or not show up at court when required.
How to Acquire OK Guardianship
It is critical that the appropriate forms be filed with the court to initiate guardianship proceedings. The required documents are complex, and forms will differ from one case to the next. Completing forms inaccurately or with missing information can add weeks or months to the process. The judge will have the discretion to either dismiss the case entirely or require additional hearings, which further prolongs the proceeding.
While there is some standard language across the board, there are variations depending on the specifics of the individual case. For example, in some cases, a bond is required. If one is not filed, the judge may dismiss the case. If the wrong application is filed, the process must start over.
In addition to the initial application, the following will likely be needed:
A hearing will be held to review the application, any objections and the proposed order: The judge will decide on the application, after hearing the evidence presented. If the application is approved, the guardian will be appointed. An announcement of appeal may be filed if the person who opposed the application does not agree. An appeal involves another level of complexity and an additional timeline.
Accessing OK Guardianship Forms
The sooner you can consolidate the information into one document, the easier it will be for you to understand the Oklahoma process. Here are five places you can get forms for Oklahoma Guardianship:
- The Oklahoma Access to Justice Webpage can save you hours of time and frustration going in and out of the courthouse to get your forms. Not only will you find all of the guardianship forms, but the links to their explanations and instructions (previously covered).
- The local courthouse is another place to get the forms and instructions. Every court might not have a complete set of forms while the Access to Justice website should, but it is good to check your local courthouse first.
- Local legal aid organizations will help you determine if you qualify for assistance, then give you the necessary forms and work with you through the process.
- Attorneys also have the forms and the process for guardianship. Having an attorney work on your behalf is a good idea based on the complexity of the process. Legal fees are negotiable, but most lawyers charge a flat fee, so you do not incur extra costs from additional hours.
- Schools and other organizations with board or committee members may also be able to help.
Guardianship Form Pitfalls
The biggest mistake people make is filing their own forms without the proper understanding of the documents required to not only file, but to properly follow through with the court process. For instance, the person seeking guardianship of the estate must file a detailed inventory of assets and have the guardian prepare an annual accounting of those assets. There are deadlines for filing those documents with the court. If those deadlines are missed, it may cause a delay in the process and possible sanctions by the court . It is important that people seeking guardianship process contact an experienced Oklahoma attorney who can guide them through the court process.
Other common mistakes are:
- Not properly listing the assets when filing the initial inventory.
- Not filing the notice to applicant with the court within the time frame established by the Uniform Probate Code.
- Not serving interested parties with proper notice.
- Not complying with filing deadlines.
- Not including all of the required documents with the filing.
- Trying to fill out the form without full understanding of the document required and the filing process.
Law Services & Guardianship
When taking care of an individual in need of a guardian, you may find that you require legal assistance to carry out the process for one reason or another. Some individuals prefer that lawyers handle the complex nature of the process as they are already overwhelmed with caring for the individual. Others just prefer the professionalism and confidence lawyers exude. Whatever your reason for seeking a lawyer, there are several things you should keep in mind as you do.
In a state like Oklahoma, there are many lawyers that can help you with the guardianship process. For a long time, however, finding competent, experience lawyers willing to help clients with this process has proven problematic for most. A recent push by the Oklahoma Bar Association has helped to alleviate some of these problems, but you can still run the risk of finding poor representation. If possible, ask friends, family and others who have gone through the process for lawyer recommendations. If you have no other options, search the OBA directory for attorneys and contact them to discuss your situation. Often, one phone call will give you insight into how that attorney operates. Additionally, you should take into consideration how well the personality of the lawyer you are considering meshes with your own.
Ultimately, the decision of whether you seek a guardianship lawyer should be up to you. Make sure that whatever decision you make, you feel good about it as not doing so could just lead to more stress. As long as you take your time to learn the process and consider your options, you should be able to receive the help needed while allowing loved ones to rest easy.
Guardianship FAQ
How long does a guardianship last in Oklahoma?
A guardianship lasts until the Oklahoma Court terminates the guardianship, which usually occurs after the legal disability ends, such as when the protected person turns 18 or when a guardian is no longer needed. During the Period of Disability, you are often subject to the authority of the guardian under the orders of the Oklahoma Court. The Court retained jurisdiction over the case and can modify its orders anytime during the existence of the guardianship. Courts often require the guardian to file annual reports of assets and health for the wards. A guardian who fails to comply with the Court’s orders might suffer sanctions from removal or even jail time.
Can I change my guardian?
Yes, you may change your guardian at any time. To do this legally, you must file a Petition with the Court and seek to terminate the previous guardian . Then, you may appoint someone to be your new guardian.
How much does a guardianship of the person and estate cost in Oklahoma?
The costs of a guardianship are often expensive, and in Oklahoma, the laws governing a guardianship of the person and estate dictate that a judge need to approve the fees. Therefore, each year you will need to hire an attorney to assist in your annual accountings and a guardian to help care for the protected person who can receive a certain amount of money for their services. All payments from the estate must have the Oklahoma Court’s approval, and the judge will decide how much the guardian will receive from the estate to pay themselves and their attorney. This means that when you see the schedule of fees outlined in our Oklahoma Guardianship Handbook, you can be sure those amounts are the most you will have to pay for a guardian and their attorney.