As individuals age, many find themselves in the role of caring for an elderly or incapacitated parent. This responsibility prompts crucial questions: Can legal guardianship be established for a parent? How can a parent be protected from potential exploitation? This guide delves into the process of obtaining guardianship for a parent and offers insights into navigating this complex endeavor.
Initiating Guardianship Proceedings
To embark on the path of guardianship, follow these fundamental steps:
File a Petition: Begin by filing a petition with the court clerk. This typically involves a filing fee, which varies by county and is generally around $57.00 to $67.00. Exceptions apply if the parent receives social security assistance or if financial constraints hinder payment. An affidavit of "in forma pauperis" can be filed to waive the fee. Though it's advisable to consult an attorney, resources from Legal Aid Services of Oklahoma or the Oklahoma Bar Association can guide those opting to proceed without legal representation.
State the Reasons: The petition must detail the reasons why the parent is unable to care for themselves. Including a statement from a medical professional affirming the parent's incapacity is often recommended.
Notify Relevant Parties: The court will schedule a hearing after the petition is filed. Ensure that notice of the hearing is sent to the following parties at least ten days prior to the hearing:
The parent
The parent's spouse (if married)
The parent's attorney (if applicable)
All adult children of the parent
Grandparents and adult siblings (if applicable)
Nominees for guardian designated by the parent
Persons or facilities responsible for the parent's care
Relevant state agencies
Veterans' Affairs, if the parent is a veteran
Any other parties as directed by the court
Emergency Hearing: In cases of urgency, an emergency hearing can be requested without the standard ten days' notice. This temporary "special guardian" appointment allows for subsequent review and notification.
Guardianship Hearing
At the guardianship hearing:
Attend the hearing when called.
Those notified have the right to attend and object to the guardianship.
Present reasons for seeking guardianship to the judge.
The judge may want to meet the parent.
If satisfied with the need for guardianship and your suitability, the judge will issue an order appointing you as guardian.
Challenging Guardianship
In the event of opposition:
A trial date is set.
Both parties present evidence for and against guardianship.
Legal representation, witness testimonies, and cross-examination are part of the process.
The judge reaches a decision based on presented evidence.
Factors Impacting Qualification for Guardianship
Several factors can impact eligibility for guardianship:
Being a minor or incapacitated
Criminal convictions, protective orders, or pending criminal charges
Insolvency or recent bankruptcy
Financial obligations to the parent
Conflicts of interest
Legal presence in the United States
The circumstances may be absolute barriers or factors considered by the court. For instance, certain disqualifications are categorical, while others involve a case-by-case assessment of whether the individual can act in the parent's best interest.
Responsibilities After Guardianship Appointment:
After being appointed guardian:
Maintain a copy of the court's order as evidence of your authority.
Provide the order to entities (hospitals, banks) that require verification of your guardianship status.
Be prepared to file an annual report, detailing how you've cared for the parent.
Share this report with parties entitled to notice of the hearing.
In summary, obtaining guardianship for an aging or incapacitated parent requires navigating legal procedures, potential objections, and varying eligibility criteria. While legal representation is advisable, resources are available for those pursuing guardianship without an attorney. The overarching goal remains the well-being and protection of the parent in need. Of course, everyone’s case is unique and requires an individual assessment by an attorney. Please call the attorneys at The Schmook Law Firm at (918) 505-4870 if you have any specific questions or concerns regarding your case.
