As Americans get older, many people have an elderly or incapacitated parent who can no longer care for herself. If this is you, you may wonder: can I get legal guardianship over my parent? How do I protect my parent from being taken advantage of?
How to File for a Guardianship of Your Parent
First, go to court and file a petition with the court clerk. There is a filing fee. Each county sets its own filing fee, which is usually between $57.00 and $67.00. If your parent is receiving assistance from social security, you don’t have to pay the filing fee. If your parent is not receiving assistance from social security, and you are unable to pay the fee, you may file an affidavit of “in forma pauperis” and avoid paying the fee.
In general, it is difficult to file a guardianship petition without a lawyer. However, many people file without attorneys; you may be unable to afford an attorney. For resources on filing for a guardianship without an attorney, you may go to Legal Aid Services of Oklahoma or the Oklahoma Bar Association.
In the petition, you must state the reasons why your parent is not able to care for himself. Generally, when I file a guardianship petition, I attach a statement from a doctor or other health professional stating that the person is incapacitated and unable to care for herself.
After you file the petition, ask the court clerk to give the petition to the judge. The judge will then schedule a hearing. At least ten days before the hearing, you must send notice of the hearing to:
- Your parent
- Your parent’s spouse, if your parent is married
- Your parent’s attorney, if your parent has an attorney
- All adult children of your parent
- If your parent has no living adult children, you must send notice to your parent’s parents
- If your parent has no living adult children or living parents, you must send notice to all of your parent’s adult brothers and sisters, all adult children of your parent’s deceased brothers and sisters, and all of your parent’s adult grandchildren
- If you can’t give notice to any of the above persons, you must give notice to at least one and not more than three of your parent’s living adult relatives whom you know about and whom you are able to locate
You must also give notice to:
- Any person whom your parent has nominated to serve as guardian, whether your parent nominated that person by will or other written document
- Any person or facility having care or custody of your parent
- The Oklahoma Department of Human Services, or Oklahoma Department of Mental Health and Substance Abuse Services, if either agency is providing services to your parent
- The U.S. Department of Veterans’ Affairs, if your parent is a veteran and reasonably believed to be eligible for or receiving benefits from the VA
- Any other person as directed by the court
If there is an emergency, and you need a guardianship before you can give ten days’ notice to these people, you may ask for an emergency hearing without notice. The judge may appoint you as a temporary “special guardian,’ then set the matter for review, and order you to give notice of the review hearing.
What to do at the guardianship hearing
Go to the hearing. When your name is called, go before the judge. At the hearing, anyone to whom you give notice will have the right to be present at the hearing and object to the guardianship. If no one objects, tell the judge why you need a guardianship. The judge may want to meet your parent. If the judge is satisfied that your parent needs a guardian and that you are suitable to serve as guardian, the judge will sign an order appointing you guardian.
If someone objects to the guardianship
Hopefully this won’t happen. But if someone objects, the judge should set a date for trial. At trial, you can present evidence as to why you should be guardian, and your opponent can present evidence as to why you should not. Either side will have the right to have an attorney represent them, and to call witnesses and cross-examine witnesses. At the end of the trial, the judge should make a decision as to whether you should be the guardian.
Circumstances that may disqualify you from serving as guardian
Whether or not anyone objects to your serving as guardian, you may be disqualified from serving as guardian if:
- You are a minor
- You are incapacitated
- You or any adult member of your household has a criminal conviction, protective order, or pending criminal charge
- You are insolvent (that is, you can’t pay debts as they become due)
- You have declared bankruptcy within the past five years
- You are under a financial obligation to your parent
- There is a conflict of interest that would preclude you from serving as guardian
- You are not legally present in the United States
Some of these circumstances are absolute barriers to guardianship; in other of the above listed circumstances, you may be appointed guardian only if the judge determines that the circumstance does not prevent you from acting in your parent’s best interests. For example, the law appears to state that there is an absolute bar of a minor or incapacitated or partially incapacitated person from acting as guardian.
However, if you, or an adult member of your household, has a criminal conviction, protective order, or pending criminal charge, that’s not an absolute bar, but the court may appoint you guardian only if the court has made inquiry and determined that the conviction, protective order, or pending criminal charge does not give rise to a reasonable belief that you will be unfaithful to, or neglect, your parent. Also, having a conflict of interest won’t automatically disqualify you, but the court will look at whether the conflict of interest is “substantial and … likely to preclude or impair [your] ability … to serve as a guardian acting in the best interest of” your parent. If you are an illegal immigrant, the court may appoint you guardian only if “the court determines that there are no such qualified individuals available to serve as guardian and that it is in the best interest of” your parent, to appoint you.
If you are insolvent or have declared bankruptcy, that won’t prevent you from being guardian of your parent’s “person”; that is, you will be allowed to care for them and make medical decisions for her. But insolvency or bankruptcy may prevent you from acting as guardian of your parent’s property; that is, you may not be able to handle your parent’s financial affairs. If you are insolvent or have declared bankruptcy within the past five years and you want to be guardian of your parent’s property, the court must “give due consideration to the nature and extent of the property of your parent” and the court may appoint you guardian of the property only if the court determines that your appointment is in your parent’s best interests.
After you are appointed guardian
If the court signs the order, you will have legal authority over your parent. If anyone (such as a hospital or bank) questions your authority to act as guardian, show them the court’s order, and that should be sufficient for them to allow you to manage your parent’s affairs.
Often, the court will require you to file an annual report, showing how you have cared for your parent. You will then have to send this report to all persons who were entitled to notice of the hearing.
Do you need a guardianship? Contact the Persaud Law Office
At the last hearing where I represented someone seeking guardianship over an incapacitated adult relative, the judge looked at my client and said to her, “It is people like you who give me faith in humanity.” Gaining a guardianship over a person who cannot care for himself is a very loving act. In my experience, it’s one of the few court cases where a person is trying to help someone rather than harm them; it’s also one of the few court cases where a person is happy. Guardianships are among my favorite cases to handle. If you are interested in obtaining a guardianship, ,please contact my office.