Fifth in a Series
Imagine these three scenarios …
Your son just turned 18 and you received a call that he slipped and fell while at the market and is in the hospital. You rush to the hospital to see him and ask the staff how he is. … What happens?
Your daughter is 18, still in school, and has an IEP (Individualized Education Plan) meeting this morning. As you approach the counselor’s office, she turns to you and says, “Mom, I want to do this alone.”… What happens?
Your son who has autism just turned 18 and received credit card offers in the mail. He applies for a credit card but you don’t think it’s a good idea. … What happens?
In Oklahoma and most other states, when someone turns 18 they are considered an adult and are expected to make all the right decisions about finances, medical, and life. They can vote, open bank accounts, enter into binding contracts, buy a car, and move out of the house…you may remember the feeling of independence when you turned 18.
However, this may present a dilemma for some caregivers of dependents with special needs.
For some dependents, making day to day decisions can be challenging. Essentially there are two types of decisions that can be made; personal and financial. Some dependents may be able to make both, one or the other, or none at all.
When this happens and help is needed, you may want to consider guardianship.
Guardianship (for adults) is a legal process during which a person (usually a family member) asks the court to find that a person is unable to make important decisions and/or manage their own affairs on a daily basis.
In most states, a guardian is responsible for personal decisions, ranging from day-to-day decisions to medical decisions, housing, food, etc. In Oklahoma, the court can appoint a guardian of the person and a guardian of the property, which can be the same person, but does not have to be. A guardian of the property, is responsible for decisions regarding public benefits, such as Medicaid and Supplemental Security Income, property, income, and financial matters.
Some caregivers feel that a relative or family friend would be best suited as a guardian of the person, as they would know the dependent’s wishes and needs. And maybe an institution, such as a bank, would be better suited to serve as guardian of the property in handling the financial decisions because of their expertise and longevity. It is also possible for the Court to appoint co-guardians.
If the caregiver and dependent feel guardianship is right for their circumstance and the dependent is over 18, then the caregiver must file a petition for guardianship in the district court. But if the dependent is under 18, the caregiver can name a person or persons to serve as guardian of the child upon the death of the caregiver in the caregiver’s will. The Court will have final approval over who will serve as guardian, taking into consideration the best interests of the minor, but the Court will give the caregiver’s choice in the will the highest regard. If a guardian is not named in the caregiver’s will, and the caregiver is deceased, the decision as to who will serve as guardian will be up to the court to decide and it may not be the person the caregiver would have chosen.
Choosing a guardian for minor children is not easy. You want someone you can trust with your life. Make sure the person is willing to serve in this capacity. For parents, should one parent pass away, generally the surviving parent is entitled to custody of their dependent. However, it is customary to still name the other parent as the primary guardian. A successor guardian should also be chosen, in case the first guardian chosen is not willing to serve or dies.
If a caregiver is single, naming a guardian is even more critical because your children depend on the you alone.
Important question: Is a guardianship of your loved one necessary?
If the person is a minor and the child’s parents are unable to care for the child, a guardianship proceeding may be necessary to appoint a guardian of the minor.
If the person is an adult and is unable to make decisions related to daily living, healthcare or finances and is unable to manage his or her own affairs, it may be necessary to have a guardian appointed.
Caregivers may hesitate to initiate a guardianship proceeding because it takes away the dependent’s autonomy. A person under guardianship can lose the authority to make decisions about their personal life, as that authority is now with the guardian.
Are there less restrictive alternatives available?
If the person has the legal capacity to sign, the person may be able to sign estate planning documents, such as a Will, financial and medical powers of attorney and healthcare directives. Generally, an attorney experienced in estate planning would be able to determine whether the individual is able to sign estate planning documents. Sometimes verification from the individual’s physician may be required.
If the person is partially incapacitated, the court may appoint a limited guardian. The court can assign certain limited powers and duties to the limited guardian, but the limited guardian cannot take custody of the person. Under a limited guardianship, the partially incapacitated person can maintain a certain amount of independence. The limited guardianship may be a good option for some families.
A guardianship may be the best option for individuals who are incapacitated. Having a guardianship in place ensures that you can care for your loved one, make medical decisions and manage their finances, including public benefits they may be entitled to receive. Even with a guardianship in place, nothing would prevent the guardian from considering the wishes and input of the person subject to the guardianship, so long as the person’s wishes are in their best interest considering their health and safety.
Obtaining a Guardianship
A person seeking guardianship must file a Petition with the court. The Petition will be set for hearing before a Judge. In Oklahoma, the person subject to the guardianship is referred to as the Ward. The proposed Ward is entitled to their own attorney, which can be appointed by the court. Title 30 of the Oklahoma statutes set forth the procedures that must be followed in a guardianship proceeding. Notice of the hearing must be provided to certain people, including the proposed Ward.
At the hearing on the Petition for guardianship, the court will hear evidence and make a determination as to whether the proposed Ward is incapacitated or partially incapacitated and whether a guardian will be needed. If the guardian is appointed, they will take an oath, swearing to uphold their duties as guardian. The court will outline the duties of a guardian.
Once appointed, the guardian must file a plan for the care and treatment of the ward as well as the management of the assets of the ward. An inventory of the assets of the Ward is also required. Sometimes a guardian will have to ask for special permission from the court, such as for the sale of a piece of property or to change living circumstances. The guardian must file an annual report to verify that the dependent’s needs are met. If finances are involved, records must be kept and reconciled and an annual account must be filed with the court. If the guardian fails to satisfy the court, they may be removed or subject to civil penalties, or both.
Most special needs providers and advocates would recommend the least restrictive form of guardianship, as independence, dignity, and integrity are in the person’s best interest. To the extent possible, it is important to involve the dependent in the decision-making process.
Due to the complexity of guardianship proceedings and state laws, you may need to seek advice from your own legal counsel who can work with your other advisers to help you plan for the future of your dependent with special needs.
NOTE: Publisher Patrick B. McGuigan compiled this information from a range of sources.