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Guardianship

Why are guardians necessary?

Undoubtedly, the most important reason to have a guardianship in place is to expedite medical treatment needed by a person with a disability. Doctors and hospitals may refuse to perform necessary but nonemergency procedures on incapacitated patients without legally authorized consent. A guardian can provide such consent if the person with a disability does not have a good Health Care Power of Attorney (Durable Medical Power of Attorney).

Having a legal guardian appointed is also useful and sometimes necessary in order to provide consent or acknowledgment on behalf of the ward in an array of situations regarding the ward’s care and well-being, such as consenting to behavior modification plans or other treatment plans, consenting to use of medications, acknowledging receipt of rules, regulations and rights, and signing various forms on behalf of the ward regarding benefits, procedures, etc. A guardianship which covers the ward’s health and personal care is known as a guardianship of the person.

If the person with a disability has income and assets, a guardian may be needed to manage them. A guardianship which covers the ward’s finances is known as a guardianship of the estate.

Should guardianship be avoided?

Often, with proper pre-planning, guardianships can be avoided. Guardianships can be expensive to establish and maintain. The ward is given personal notice of the filing of the guardianship action. The notice informs the ward that the person(s) seeking guardianship are alleging that he is incapacitated and unable to handle his affairs. This can be embarrassing, frustrating and maddening to the ward.

Court permission is required for some financial matters and some medical issues which takes the family out of complete control and involves a Judge’s discretion. Guardianships also may limit the ability to do Medicaid planning in the event of nursing home care. Before embarking into a guardianship, consultation with a knowledgeable Medicaid attorney is advised.

Is guardianship of both the person and estate always necessary?

No. Often, some incapacitated persons have no assets or income other than Social Security or other entitlements. The income they do receive can often be arranged to be applied directly for their care. In such cases, the courts rarely require the appointment of guardian of the estate, which is good because guardianship of the estate always involves more time and expense.

Is the guardian liable to a third person for acts of the ward solely because he or she is guardian?

No. Under Oklahoma law, a guardian is not liable for acts of the ward merely because he or she has assumed the fiduciary role of guardian. However, a guardian or prospective guardian should be aware that he or she is required to carry out guardianship duties in a reasonably responsible manner. If damages result from the guardian’s gross negligence, or if the guardian fails to take steps to avoid a reasonably foreseeable harm, then the guardian may be held liable for acts of the ward.

Is a guardian legally obligated to pay for the costs associated with the ward’s care?

No. A guardian does not assume financial responsibility for the ward merely by becoming guardian. The costs of the ward’s care are normally obligations of the ward’s estate. However, anyone, including a guardian, can assume a contractual obligation to pay for the ward’s care if he chooses to do so. A guardian who wished to avoid personal financial responsibility for the ward’s care should carefully review contracts and modify them if necessary to clarify that the guardian is accepting no personal financial responsibility under the contract.

Can a guardianship be avoided when mental health evaluation or treatment is needed?

Frequently, yes if planning is done before the need arises. With an Advance Directive for Mental Health Care, a family member or friend can be given authority that frequently avoids the necessity for a guardianship for mental health care treatment.