When loved ones are no longer able to care for themselves, or if a child is being neglected by a parent, family members or close friends can step in and request to become legal guardians.
Guardianships are available under the Oklahoma Guardianship and Conservatorship Act for:
1. Minors in Oklahoma
2. Incapacitated and partially incapacitated persons
3. Property in Oklahoma belonging to a minor or incapacitated person who does not live in Oklahoma, and,
4. Property coming into the control of a guardian who is subject to the laws of Oklahoma. (30 O.S. §1-112)
No person, whether a parent or nonparent, has any power as a guardian unless so appointed by the court. The Oklahoma Guardianship and Conservatorship Act shall not be construed to limit the parental rights of parents as the natural guardians of their children.
Guardianship entails overseeing the personal, medical, and financial affairs of an individual to ensure his or her overall welfare. Guardians of minors are responsible for clothing, feeding, medical needs, and tending to the child's daily needs, similar to what a parent would do.
If you are concerned about a child or a loved one who needs care, Mazaheri Law Firm's guardianship lawyers can offer you assistance with the guardianship process. We have helped grandparents, stepparents, relatives, and other family members or friends seek guardianship for their loved ones. Our Oklahoma City lawyers can walk you through each step while safeguarding your loved one's welfare.
Guardians can only be appointed by a court. The statutes governing guardianships may be found beginning at Title 30 of the Oklahoma Statues and an individual must file the necessary paperwork, pay court fees, obtain background checks of adults who will live in the same home as a child, and attend a court hearing. Guardianship can be granted over an ADULT when the ward is fully or partially incapacitated. An incapacitated person is one who is over the age of eighteen (18) and is unable to make competent decisions regarding their affairs. Additionally, it can be granted over a MINOR/CHILD when the ward is under the age of eighteen (18), and the court finds it is necessary because 1. Parents are unable to care for the child, 2. There is a kinship relative able to care for that child, or 3. In case of death of parents, the parents have nominated a guardian of their child in their will. Once you meet with a qualified guardianship attorney, they will help you determine:
General Guardian – A guardian of the person or of all the property of the ward within this state or of both person and property. (30 O.S. §1-109)
Limited Guardian – A person authorized by the court to exercise limited powers over the person of the ward, or over the property of the ward within the state or of both person and property. (30 O.S. §1-109)
Special Guardian – A guardian appointed for an emergency purpose, generally not to exceed thirty (30) days. (30 O.S. §3-115)
Do you qualify to be a guardian?
The statutes relating to guardianship set forth a list of persons who may serve as guardians and an order of priority for appointment by the court. (30 O.S. §3-104) A guardian or limited guardian is often a spouse, child or other relative of the potential ward. After the petition is filed, notice must be given to a statutorily set list of persons of the time and place of the hearing. The subject of the proceeding must always be given notice. A brief list of those who may be appointed as a guardian, with priority of appointment, are as follows:
1. the person(s) nominated by the subject of the guardianship; if the guardianship is of a minor child, then the child must be 14 years old or older to nominate his or her guardian;
2. the current guardian or limited guardian appointed by a court in another jurisdiction where the minor child, incapacitated or partially incapacitated person resides;
3. the person nominated by the will or other writing of a deceased parent, spouse or adult child that was serving as the guardian or limited guardian of the subject of the proceeding;
4. the spouse of the subject of the proceeding;
5. an adult child;
6. a parent;
7. a sibling;
8. a person, approved by the court, with whom the subject of the guardianship was living for more than six (6) months.
3. What the Guardianship Proceedings will be like
A guardianship proceeding will usually be filed in the district court of the county where the minor child, the incapacitated or the partially incapacitated person resides. If the proposed guardian is a member of the minor child’s or incapacitated person’s family, the guardianship proceeding may take place in the district court of the county where the proposed guardian lives. (30 O.S. §1-115)
In all cases, the first step in a guardianship is the filing of a written petition. Any person interested in the welfare of a person believed to be incapacitated or partially incapacitated may file a verified petition alleging the incapacitation and requesting the appointment of a guardian for the potential ward.
The procedures for the appointment of a guardian for a minor (a child under the age of eighteen (18) years) and the appointment of a guardian for an incapacitated person differ. A guardian may be appointed for a minor after a hearing on a petition filed with the district court. (30 O.S. §2-101) If the minor is at least fourteen (14) years of age, he or she will be given notice of the hearing. A minor of fourteen (14), or a minor upon reaching the age of fourteen (14), may nominate his or her own guardian, subject to the Court's approval. (30 O.S. §§2-103 and 2-104)
Special procedures may be available for the management of the estate of a ward that does not exceed Ten Thousand Dollars ($10,000). If this applies in your situation, please consult a lawyer. (30 O.S. §2-116)
Becoming a guardian involves taking on tremendous responsibility. Guardianship decisions are weighed heavily by the court because of the potential for abuse or foul play if the wrong person was appointed as a guardian. There are also cases where the individual in question may dispute the need for guardianship. These types of cases can be complex and often require the assistance of an attorney. You may require counsel at a Guardianship Proceeding, a proceeding for the appointment of a guardian or for other orders regarding the condition, care or treatment of or the management of the financial resources of a ward. (30 O.S. §1-111).
A guardian or limited guardian of the person is responsible for the care and control of the ward. A guardian must perform in good faith and diligently any specific duties and powers assigned by the court. A Guardian shall:
1. become or remain sufficiently acquainted with the ward to maintain contact and to know capacities, limitations, needs, opportunities and health of the ward;
2. assure that the ward has a place to live which is least restrictive and most normal for his or her health and safety;
3.provide required consents or approvals as authorized by the court. (30 O.S. §3-118)
Legal counsel may be important to help you comply with all legal requirements of guardianship and ensure you are handling your duty legally and responsibly. Any guardian who willfully violates the duties or powers assigned by the court shall be liable for actual damages. (30 O.S. §4-901)
A guardian may be removed if the court finds that he/she is not performing the duties required by the court. The court may remove a guardian or terminate a guardianship if the court finds that the guardianship is no longer necessary. The court may remove a guardian or terminate a guardianship at the request of the guardian. In all cases, in order for the guardianship to end, the court must order it to be terminated
Every person eighteen (18) or older who is of sound mind and not acting under duress, menace, fraud or undue influence may nominate a guardian. A person nominated as guardian shall be given preference in the appointment of a guardian. (30 O.S. §3-104) However, there is no guarantee, and if guardianship is in dispute, a Judge will determine final guardianship. A Guardianship attorney can assist you in making sure your wishes are followed when you are away.
If your loved one is in need of care, Mazaheri Law Firm and our dedicated attorneys can provide compassionate legal support through this difficult time. We can discuss whether guardianship is right for your situation or whether you should pursue an adoption of a minor instead. We're here for you, no matter what happens or how hard it gets.
To get started, call (405) 414-2222
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