Understanding Adult Guardianships
Do you have an adult relative that you think you might need to get guardianship over? My name is Carl Birkhead. I’m a family law attorney with Wirth Law Office in Tulsa, Oklahoma. I want to help you make law easy by talking a little bit about adult guardianships, what’s required for them, and kind of what that process looks like. Let’s see how much we can get through.
What is an Adult Guardianship?
Adult guardianship is kind of self-explanatory. It’s when an adult is no longer able to take care of themselves and they need someone to take care of them for them. It comes down to mental capacity. Does an adult have the mental capacity to make their own decisions and to make sure that they are cared for?
If you have a situation where an adult relative or a close friend looks to be incompetent or even has been medically deemed incompetent, I’ve seen cases where a doctor has looked at the patient and said, you’re headed downhill. You need to make some arrangements. You need to get someone appointed to make these decisions for you. Those are situations where you need to get guardianship over that person.
The Guardianship Process
So, how it works is it’s a little bit different than guardianship over a child in that first you have to be reasonably confident that you’re going to be able to show that they cannot take care of themselves or to make decisions for themselves. Nine times out of ten, these are usually filed first as an emergency. In that situation, when you file it, you have to take a copy of the petition.
You can’t just use a process server. Well, maybe a process server, but you have to be very specific with how you serve the adult with the paperwork. You have to quite literally take the paperwork to them and hand it to them. They could be in a hospital room unable to talk, and you still have to just lay it on their lap to achieve service.
Determining Necessity and Capacity
From there, it comes down to determining whether or not the guardianship is necessary. You determine if it’s necessary by determining capacity. If you’ve already got medical records showing that there’s an incapacity there, a lack of a mental ability to take care of yourself, to make decisions for yourself, then you’re on the right track.
If not, then you’re going to need to get some experts involved. You’re going to need to get the court to order some mental health evaluations. You’re going to need to be able to show that, just quite frankly, they’re not doing well. Just mentally, they’re not quite there, and they need that help.
Preparing Ahead of Time
Nine times out of ten, this comes into play with grandparents or parents, relatives that are getting on in years, and their mental capacity just starts to decline. It’s a very heartbreaking thing to see. It’s a very heartbreaking type of case to have to litigate, but unfortunately, it happens, and it happens often.
I tell my clients as much as I can that if you want to avoid that, set up your estate ahead of time. Set up a power of attorney. Already have somebody designated to be the person to make those decisions, so that way, on the back end, once your faculties have started to decline, your relatives aren’t left scrambling, trying to figure out who’s going to take care of you, and getting the legal paperwork started to do that.
Contact Us for a Strategy Session
If you have questions about this, please give us a call. My name is Carl Birkhead. I’m a family law attorney with Wirth Law Office, and I want to help you make law easy. Contact us today at 918-879-1681 for a low-cost initial strategy session.
