All About Oklahoma Guardianship
Understanding how guardianship works in Oklahoma is the first step in navigating the process. A guardianship involves the Court overseeing the care and well being of another individual. The person that asks to be the guardian is responsible for the physical, medical, and financial concerns of the ward. Items such as paying bills, obtaining medical care, regular communications with family members, and attending to the needs of the ward. Guardianships may be necessary when a person can no longer attend to those personal needs. They may have a disability such as different forms of dementia or an illness that incapacitates them. Or they may need a guardian for their estate due to unwise financial decisions. It is important to understand many factors when contemplating pursuing or becoming involved in a guardianship situation. There are different types of guardianship available in Oklahoma. A limited guardianship is an option for a person to make decisions for another person in only certain areas . This may include coning and going from places, medical decisions, or even solely financial concerns. The guardian is accountable to the Court and must make reports periodically under the rules that govern guardianships. A full guardianship is necessary when a person is unable to handle any decisions at all. This may involve medical concerns, finances, where the person lives, how they spend their money, and where they go. In those situations, appointing a guardian becomes necessary to manage those issues according to court approval and oversight. The procedures to gain approval for guardianship, obtain medical opinions and other evidence to support the petition, and the process to have a judge approve or deny the petition are complex and require careful attention. When the need for guardianship arises, engage the help of an experienced attorney familiar with the ins and outs of Oklahoma guardianship law.
Types of Guardianships
Under Oklahoma law, there are several types of guardianships available to handle various circumstances concerning minors and adults facing incapacity. Guardianship options include both general and limited guardianships; the distinction will be made clear as we discuss each category.
If the Court appoints you as the guardian of a minor, you are known as the Guardian of the Person or Guardian of the Estate. Your duties are to manage the minor child’s medical decisions, custody and all financial matters. As the Guardian of the Person, you will have the ability to consent to the minor’s medical treatment. The Doctor may allow you to sign many of the forms on behalf of the minor, but sometimes the Doctor requires a copy of the Court Orders before they will allow the adult to sign on behalf of the minor. Again, how the Doctor handles this matter needs to be discussed on a Doctor to Doctor basis. The Guardian of the Person will make decisions regarding the minor’s residence and can even put the child in a group home or other facility. The Guardian of the Estate handles all financial matters on behalf of the minor, including managing all assets. The guardian has the power to open accounts, write checks and order or direct the sale of real property. You will be required to file annual accounting to show what you did with the child’s money and assets on an annual basis. This will also show the income and expenses of the minor.
When someone lacks the capacity to make their own decisions, the court may appoint either a public or private guardian. This type of guardianship is for the person who cannot make decisions regarding medical care, money, contracts, etc., and becomes the "voice" for that person. Guardians have the authority to make decisions on behalf of the individual; but their authority does not extend to gifts or prerogatives that the ward would not have.
The Guardian will be required to show that the individual is incapacitated and that the need for a guardianship exists. A doctor’s statement regarding the incapacity will usually accompany the petition. A general guardianship includes powers to manage the person and the estate of an individual. A limited guardianship will be put in place if a Judge believes that one or more of an individual’s legal rights remains and can be exercised. A limited guardianship allows a limited authority to exercise the legal rights and powers on behalf of another person. If no guardian or conservator has been appointed, the State of Oklahoma is responsible for the social, medical, and for most of the financials needs of an incapacitated person who falls within specific guidelines.
Getting Oklahoma Guardianship Forms
With the advent of the Internet, individuals seeking and filling out the required forms for Oklahoma guardianship have far more options than was previously available. While it is always advisable to contact an attorney for help with guardianship, many people choose to fill out and submit the court forms on their own, saving time and money.
The bulk of the required forms for guardianship over an adult in Oklahoma are state form OKDHS J550, and forms J550-A through M. Most of the forms are available for download at the website of Oklahoma Department of Human Services Forms (OKDHS Forms). Most of the forms are in PDF format.
You will find information about guardianship of minor children on the site of the Oklahoma Bar Association, or in your local courthouse in the family law division. There are forms and instructions available at the OK Bar site if you want to pursue guardianship pro se (without legal counsel).
Having a pro se or "do-it-yourself guardianship" means tackling the required petition and the subsequent courtroom, filing and processing steps of the guardianship install yourself. The website of the Oklahoma courts, www.oscn.net, has manuals, forms, and directives for the guardianship process from start to finish that were created in response to the Self-Representation Pilot Project of 2011.
How to Fill out Guardianship Forms
Step-by-Step Guide to Completing Oklahoma Guardianship Forms
While the bulk of our information here is about common issues related to guardianship of a person or a minors, we are also guardianship attorneys who deal with the filing, and contesting of, formal documents filed with the court every day. This means that our year typically starts off in a little bit of disarray until the dust from the previous year’s guardianship cases has settled and everything has been handed out to the right person in the correct folder.
For those filing their first guardianship application, certificate of service or notice of hearing, the shear amount of documents can be overwhelming. This step by step guide will hopefully ease some of the confusion.
This guide is for general informational purposes only. We can not be held responsible for problems arising out of incorrect or improper filings. If you are in doubt, consult a lawyer for confirmation.
- Application for Appointment of Guardian of the Person. This is the basic "adoption" type of form. It requests the court appoint a guardian for the incapacitated person or minor while requesting the ability to choose a reside in Oklahoma, yet live somewhere else when necessary. It requires your signature and the notarized signature of an attesting witness.
- OCIS and UCCJEA. A standard from that must be attached to your Application for Appointment of Guardian of the Person. It simply identifies the person to be protected, location where the appointment is requested and, if applicable, the residency at the time of incapacity. Finally, in very rare cases – when the parents are "missing" – it identifies whether or not the parent is missing.
- Petition for Appointment of Guardian and Report of Guardian. For those out there looking to conserve simply because your elderly "uncle bud" has misplaced their title to their home but otherwise functions perfectly fine, this is not the form for you. If "uncle bud" does not have a guardian yet, this is the form you use to ask the court to appoint someone. This is a very detailed form and you will need to fill it out completely. This form does NOT require a signature, notarization, or witnesses.
- Physicians Statement. Every guardianship application that is based on incapacity, no matter how mild, requires the opinion of a doctor that the person in question is in need of a guardian. For those unfamiliar with doctors, you will require the signature of a psychiatrist/psychologist and certified to practice under the laws of Oklahoma. The form is relatively straightforward, but I recommend reviewing with the doctor before hand so that they know what they are signing.
- List of Eligible Closest Relatives (LOC). You will use this form to identify the closest relatives after the person to be protected. This simple form requires the name of each, the relationship to the person to be protected, and the address. You do NOT normally have to personally serve them (unless they request otherwise) but they must be listed when you file your papers with the court. For a trust formation guardianship, you are not required to file this form with the court.
- Certificate of Competency by Licensed Mental Health Counselor. In the case where you are subjectively evaluating for incapacity, this is the form used to certify the evaluation. This form is reserved mostly for cases of development disability. Doctors are not always interested in filling this form out, so be prepared to have the counselor fill out three forms for every one the doctor fills out. Aside from the fact that it is a hassle, the license extended by Oklahoma law does not include medical doctors.
- Verification of Alleged Incapacitated Person. This is an oath type form. To be filed with the Court.
- Notice of Hearing – Guardianship of the Person. Required to be filed on every guardian appointment application. Basically states the date and time of the hearing to determine incapacity. This document must be attached to and served with every application for appointment of guardian.
- Certificate of Service. This is filed with the court and must be attached to every application for appointment of guardian. It is a checklist of whom has been served with the notice of hearing application.
- Application Fee. Filing an application for guardianship in Oklahoma requires a filing fee (unless you can prove an inability to pay). The fee is $250 at this time. While this fee is typically waived for lawyers, it is included in the average fee calculation.
From this point the process proceeds under Oklahoma Statutes Title 30 Chapter 1; Article 10. Please note that guardianships are a complex area of law with many rules and exceptions. For those seeking to appoint a guardian, and obviously caring for the personal welfare of the person in question, it is highly recommended to hire a competent elder law attorney to assist with your filing.
Where to File Guardianship Forms with Oklahoma
Once you have the right forms and filled them in correctly, and have the required copies, you will need to go to your County Clerk’s office and pay a filing fee. The filing fee is received by the County Clerk and deposited in to the county treasury, not by the court. So the filing fee is court related, but paid to the County Clerk.
Fees for filing Guardianships with the court are generally around $200.00 for most types of guardianship and sometime more depending on the number of copies and other requirements of the court, so check with your local court system to determine the requirements in your area.
The clerk’s office will retain one copy of the petition as the "file" copy and return the other copies to be served on the required people. (The fee includes service by mail or publication.) They will also provide you with an official file stamped "issued" copy of the forms you filed for your records as proof you made the filing.
The filing , service and notice is often expedited by using a private process server who will deliver the papers quickly to relatives and others that need to be served. There are often forms required to be provided to those parties in a third class mail envelope with an address label and the first class postage prepaid. Our firm can provide these envelopes for you if you are uncomfortable preparing those envelopes.
In some counties, the Clerk will assign a judge to your case as soon as the case is filed, and provide the name of the assigned Judge and their contact information. In those counties, the Judge may review the file and give you direction to get a psych evaluation for the proposed Ward, and this can be the direction of the Judge within days of the filing of the petition. In the other counties, the hearing may be assigned to a different Division of the Court that then has to agree to the form 14 before it will be assigned to the judge of the Division where the case is filed. Some of our clients have had issues with the requirement of obtaining a psych evaluation before their case was assigned to the "assigned Division" or the Judge assigned to their Division. All of the judges may require the psych evaluation prior to the hearing.
Common Errors and Solutions
In the heat of the moment, people often make mistakes they later regret. The same is true for legal matters relating to guardianships for minors or incapacitated adults: Mistakes can be made. While these are not "casual" forms, some common errors are easily made. Here’s how to avoid them:
Failing to tell the Truth
Lying on a court form or during a court proceeding is the biggest and most costly mistake you can make. Parents, spouses, and family members can lose their legal relationship with their loved ones if they don’t disclose pertinent information during the guardianship or conservatorship process.
An example would be when one spouse is suffering from dementia, an adult child should proceed with caution when pursuing a termination or appointment. In certain cases in Oklahoma, hospital medical staff will not release medical information regarding financial matters to anyone other than the spouse or adult child listed on the HIPAA form. In such cases, plain and clear language is key to enabling the hospital or doctor to err on the side of caution and maintain the relationship with the child or spouse.
Another blunder is when people aren’t honest about where a minor child’s parent has lived for the past six months. This requires a little research into being a resident of Oklahoma before filing a Petition for Guardianship of Minor Child.
Even if you are convinced that your Court Clerk is going to act on good faith in overlooking a mistake or omission, you may find yourself speaking to a Judge on the day of your hearing-in which case your error could be fatal to your case.
Do It Yourself
When dealing with potentially controversial issues regarding minor children or your own financial future, getting professional help from an Oklahoma Guardianship Attorney should be a priority. Of course, Guardianship forms are available online. But legal documents are complex, and filling out the forms is like playing a game of chess. Small errors can have tremendous consequences. Take the time and consult with an experienced OK attorney for Guardianships any time you are unsure of your responsibilities, liabilities, and choices. This is advice I offer all my clients. As a lawyer and former OK judge, I encourage you to take the "long view" and weigh your options carefully. My experience brings value to every case when you need an extra set of eyes to evaluate what’s at stake or what is being asked of you.
Assistance and Resources for Guardianships
Those who turn to guardianship for their loved ones often have questions about the process and its implications. Fortunately, support exists through various local and statewide resources. The Oklahoma State Department of Human Services Break the Silence (BTS) campaign offers information, support, and a 24-hour helpline at 1-800-522-3511. Oklahoma probate courts also help guardians through probate court forms and information on navigating the guardianship process. The BTS campaign features information on the signs of abuse and neglect, how to report abuse, and how to recognize victims. Promising Practices from the DHS bimonthly e-report share newscasts, newsletters, and ideas from around Oklahoma. The Oklahoma Bar Association (OBA) also offers information on its Guardianship section page. The OBA features resources for guardians, including publications from its Family Law Section, which includes Divorce, Paternity, Guardianship, and Adoption in Oklahoma and The Guardian’s Handbook . In addition to these resources, legal assistance options include legal aid services and pro bono attorneys through the OBA and Oklahoma Lawyers for America’s (OLAF). The OLAF program gives low-income Oklahomans access to pro bono legal representation in civil matters. The program covers guardianship and conservatorship issues. Free legal help is also available for family law issues through the Family and Youth Services Center. These services are provided at no cost to individuals with income at or below 200% of the federal poverty guidelines. The OBA also provides information on pro bono opportunities for attorneys. Its Pro Bono Resolution emphasizes the importance of providing services to those in need. Legal resources and support also exists from organizations such as Eldercare Locator, Elder Law of Oklahoma, the National Guardianship Association, and the Oklahoma Department of Human Services Adult & Family Services Division.