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.
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