By Sarah Stewart Legal Group
Many of our clients are Guardians or attorneys in fact for members of their family. Whether those family members are minors, or adults, we get a lot of questions about what Guardianship is and how it works. We have compiled some of those questions, and answers, below:
(1) What is the difference between a Power of Attorney and a Guardianship?
A Power of Attorney is a document that an adult signs to allow someone to act in certain situations on his or her behalf. There are Durable Powers of Attorney that allow the attorney in fact to continue to act even after the person signing the document is unable to make decisions for his or herself. There are also Powers of Attorney that will not continue if the person is incapable of making his or her own decisions. There are also Powers of Attorney that parents can sign allowing someone else to provide certain care to their children. This can include getting medical treatment for the child or enrolling him or her in school. A Power of Attorney is a private contract between individuals.
Guardians are court appointed. The person seeking Guardianship has to go to Court to become a Guardian. Usually, for minors, guardianships are sought when Mom or Dad are gone and the person seeking Guardianship can’t find them, the Guardian needs to be able to enroll the child in school and Mom and Dad won’t give them a power of attorney, or there is a fear that Mom or Dad may come take the child out of a stable environment at any time.
For adults, Guardianship is given when the Guardian can show that the person he or she is seeking guardianship over is unable to take care of his or herself, either physically or due to a mental health issue or disability. Guardians are under the supervision of the Court.
(2) What are a Guardian’s duties?
A Guardian will care for the Ward (the person over whom he or she has Guardianship) like they would their own child. That means making sure the physical and psychological needs of the Ward are met. This can include paying bills on the Ward’s behalf, finding proper housing, or making sure the Ward attends school. The Guardian has a duty to try to acknowledge and consider the opinions of the Adult Ward in his or her care.
The Guardian will also be required to report to the Court annually with updates on the Ward’s condition and property. The Guardian will have to ask permission of the Court to make big changes, like selling a Ward’s home, or for reimbursements of Guardian expenses from the Ward’s property.
(3) What is incapacity?
For adult Guardianships, the Guardian must prove to the Court that the person he or she is seeking Guardianship over is incapacitated. Incapacity means that the Ward is unable to make decisions for his or herself. Generally, incapacity is proven by providing medical records showing the Ward’s current medical situation.
(4) Will the Ward receive notice of the proceedings?
For adult guardianships, the closest living relatives of the Ward will receive notice of the proceedings and the Ward must be personally served. For minor Guardianships, the Mom and Dad of the child must receive notice of the proceedings.
If you have any other questions about guardianship, or want to start guardianship proceedings in Oklahoma, you should consult with a professional.