You have an elderly or incapacitated relative. What legal steps can you take to protect them?
As Americans are living longer, many of us are concerned about what we can do to protect our relatives who are no longer able to care for themselves.
One step to take is to apply for a guardianship.
There are two types of guardianships: a guardianship over the person, and a guardianship over the property.
If you have a guardianship over the person of your relative, you can make decisions about where the person lives, and the person’s medical care. This can be useful, if you need to admit your elderly or incapacitated relative to a hospital or nursing home, and your relative is not capable of handling the paperwork himself.
If you have a guardianship over the property of your relative, then, you can make financial decisions for your relative. This is useful, if your relative is unable to handle the paperwork involved in paying bills, banking, and managing his own property. You will be able to control your relative’s money, and make payments out of your relative’s account. A guardianship over your relative’s property is also a good way to protect your relative against unscrupulous scammers who seek to take financial advantage of your relative. If you have control over your relative’s property, you will be able to block your relative from paying any money to the scammers.
In this post, I describe the powers, and duties, that a guardian has.
In Oklahoma, to obtain a guardianship over your relative, file a petition for guardianship in the district court of the county in which your relative lives. Then, ask the judge to set a hearing on the matter. You will have to give notice of the hearing to certain other relatives of your relative. You may also have to give notice to the Oklahoma Department of Human Services (if your relative has received assistance from DHS); you may have to give notice to the U.S. Department of Veterans’ Affairs (if your relative has received any assistance from the VA).
At the hearing, the judge will make inquiry as to whether your relative is disabled and in need of a guardian. Some judges will require you to present doctor’s statements showing that the person is disabled. Other judges may want to visit your relative personally, to see if he is disabled.
The judge will also make inquiry as to whether you are suitable to serve as guardian. You may be unsuitable to serve as guardian if you, or any adult member of your household have a criminal conviction, protective order, or pending criminal charge. You may be unsuitable to serve as guardian of property is you are insolvent (that is, unable to pay debts as they become due) or if you have declared bankruptcy within the past 5 years, or if you are under any financial obligation to your relative, or if you have a conflict of interest. Also, if you are not a U.S. citizen, or legal resident, or legally present in the United States, you may only be appointed guardian if the court determines that there are no other qualified persons to serve as guardian, and that it is in the best interest of the incapacitated person for you to serve as guardian. (Note that, some of these conditions may not automatically disqualify you to serve as guardian. The judge may find that you are suitable to serve as guardian despite these conditions. If any of these conditions apply to you, you should disclose them to the judge; if you do not disclose them, you may be criminally charged with perjury.)
At the hearing, any “interested person” may object to your appointment as guardianship. If anyone objects, the judge should hold a hearing at which both sides may present evidence. If there is friction within your family, and relatives are battling over whether one is suitable to serve as guardian, a contested guardianship hearing can be bitter indeed.
If the judge approves your petition for guardianship, the judge will sign an order grating guardianship. Once the judge signs this order, you will have control over your relative’s person, if the judge has granted you guardianship over the person. If the judge has granted you guardianship over your relative’s property, you will have control over your relative’s property. You can also apply to be the guardian of both your relative’s person and their property (many guardians do this.)
After the judge signs the order, then, you may show this order to any hospital, nursing home, bank, or other financial institution, who asks to see proof that you do have guardianship powers. Most institutions will accept such an order as proof.
Generally, if you have a guardianship, you will have to file a report with the court every year. In this report, you should account for all of your activities as guardian.
A guardianship is complex, and it is generally advisable to seek the help of an attorney, in filing for a guardianship. If you are appointed guardian, you will be able to pay the attorney out of your relative’s funds, if your relative has the money.
You will also have to pay a filing fee and court costs to the court, to file a petition for guardianship. In Oklahoma in 2019, these fees and costs vary, depending on the county; the total fees and costs for a relative guardianship range from $57.00 to $67.00. If you are appointed guardian, you may reimburse yourself from your relative’s funds, if your relative has the money. If neither you nor your relative has the money to pay the filing fee, you may file an “affidavit in forma pauperis” and file for free.
Note that, even if you are the guardian of your relative’s property, you will NOT be allowed to spend any of your relative’s funds on your own personal use. If you do this, you may be prosecuted for embezzlement, or exploitation of elderly persons, and you can potentially serve time in prison.
Another legal device for protecting an elderly or disabled relative is a conservatorship. If your relative is physically disabled, but is not mentally disabled, but his physical disability prevents him from managing his property, you may be able to file a conservatorship. The qualifications to serve as a conservator are the same as the qualifications to serve as a guardian. A conservator has all the powers of the guardian of property (but not the powers of a guardian of the person.) To act as a conservator, you need to have your relative’s consent. To find out more about conservatorships, read Julie A. Evans’ excellent article, “Conservatorships: So Useful, But So Rare” in the Oklahoma Bar Journal. Click here and scroll down to page 261 to see the article.
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