You are going to live forever.
You can eat whatever you want and drink whatever you want and run for as long as you want forever. Because you are invincible and nothing bad will ever happen to you.
Did you buy that? No?
Unfortunately, people don’t stay young and healthy forever. We don’t like to think of a time in the future when we will no longer be able to take care of ourselves, but it is incredibly important that you do so. Ask yourself:
If you become incapacitated, who will have the legal authority to take care of you?
If a parent or other loved one becomes incapacitated, who will be able to assist them with managing their assets or healthcare?
If you die before your children reach adulthood, who will have custody over them or be able to take care of their inheritance until they come of age?
You may not know the answers to these questions, and that’s fine. That is probably why you are reading an article on an estate planning blog. (Either that or you are super bored.)
Whenever we ask questions about capacity or managing someone’s financial or medical care, we enter the realm of guardianships and conservatorships. Two big legal words with two big legal explanations. So, let’s dive in and learn more about these concepts.
What is a Guardianship?
A guardianship is a court-supervised process whereby the judge appoints a guardian to manage the personal care of a ward (i.e. someone who is physically or legally unable to manage their medical care). Similarly, a conservatorship is a court-supervised process whereby the judge appoints a conservator (similar to a guardian) to manage the assets of a ward (i.e. someone who is physically or legally unable to manage their assets).
Although “conservatorship” is the technical name for this second category, you will often hear both of these processes referred to as “guardianships.” Other times, you might hear the phrases “guardianship of the person” (where the guardian manages the ward’s medical care) and “guardianship of the property” (where the guardian manages the ward’s assets). For the purposes of this article, and to keep things as simple as possible, we will just use the umbrella term “guardianship.”
There are three types of guardianship in Oklahoma:
General Guardianship – A general guardian has full authority, as granted under the Oklahoma Guardianship and Conservatorship Act, to manage the person and/or property of the ward within this state. See 30 O.S. § 1-109.
Limited Guardianship – A limited guardian can exercise only limited powers over the person and/or property of the ward. See 30 O.S. § 1-109.
Special Guardianship – A special guardian is appointed in the case of an emergency such as an immediate need to admit the ward to a nursing center or otherwise provide for his care. A special guardianship generally may not exceed thirty days. See 30 O.S. §§ 3-110, 3-115.
So, when does someone need a guardianship? Under Oklahoma law, a guardianship or conservatorship is available for the following classes of people:
Minors in Oklahoma;
Incapacitated and partially incapacitated persons;
Property in Oklahoma belonging to a minor or incapacitated person who does not live in Oklahoma; and,
Property coming into the control of a guardian who is subject to the laws of Oklahoma.
30 O.S. § 1-112. The guardianships you have heard about probably fall into one of the first two categories. Indeed, the third and fourth categories are really just variations of the first two. Nevertheless, it is important to understand this hurdle: you can only obtain a guardianship over someone (or some property) if the case falls into one of these four categories.
Because a guardianship is a court-supervised process, there are many rules to follow. For example, only certain people are allowed to serve as guardians, and the documents and evidence necessary to appoint a guardian must be prepared and filed in precisely the right way. For that reason I highly recommend that you engage an attorney to represent you, if you wish to file for a guardianship.
How do I nominate a guardian?
If a guardian is appointed for you, it is likely because you are incapacitated to some extent. Likewise, if a guardian is appointed for your children, it is likely because you are deceased. In either case, you can no longer state your choice of guardian. So, do you get any say over who becomes guardian for your or your children?
Guardian for me.
As mentioned above, guardians must be appointed by a court. But what happens if more than one person wants to be guardian? Oklahoma law lists an order of priority for people wishing to serve as guardian. See 30 O.S. § 3-104. However, what if, for example, two kids are fighting over who gets to care for their incapacitated father? Both kids are qualified and share the same level of priority. What happens then?
To make a long story short, the court decides.
That might not sound so bad. After all, mediating disputes is one of the primary functions of the court. However, those kids will likely spend thousands of dollars and ruin their relationship (or destroy any chance at salvaging what relationship they had) fighting it out — and all the while their father has no one to care for him.
A better solution, therefore, is to give the court some direction in appointing a guardian. A guardian properly nominated by the ward has the highest priority for appointment. 30 O.S. § 3-104. In other words, if the father in the example above had nominated one of his two kids to serve as his guardian, the whole dispute may have been avoided.
The document stating your preference is appropriately called a Nomination of Guardian. See 30 O.S. § 3-102. Any person eighteen or older who is of sound mind and not acting under duress, menace, fraud, or undue influence may execute a Nomination of Guardian. A judge must still appoint the guardian, and in a disputed guardianship it is possible that the person nominated will not be appointed as guardian.
Still, this simple document can avoid or mitigate a lot of conflict.
Guardian for my children.
You may not have thought much about someday needing a guardian for yourself, but have you considered what would happen to your kids if you were no longer able to care for them? If you and your spouse die, who will get custody of your minor children?
Although minors generally cannot nominate a guardian, a parent can nominate a guardian through a Living Trust, Last Will and Testament, or similar document. Cf. 30 O.S. § 2-103 (children fourteen and older can nominate a guardian themselves). If you have minor children, this type of provision is a crucial part of your estate plan. Let me say it again in bold capital letters:
IF YOU HAVE MINOR CHILDREN, IT IS CRUCIAL TO NOMINATE SOMEONE TO SERVE AS THEIR GUARDIAN IN YOUR ESTATE PLANNING DOCUMENTS.
Long and contested guardianships can be traumatizing for children. If you wish to provide the best life for your kids after you are gone, nominating someone to serve as their guardian is a necessity. You can also list alternates to serve if your first preference is unable or unwilling to do so.
As always, this type of decision should not be made lightly. Talk with your family to see who would be willing and able to serve as guardian. Even after you make a decision, let your family know your wishes and encourage them not to contest the guardianship, should one ever become necessary.
What is the difference between a guardianship and a Durable Power of Attorney?
I have written previously about the importance of a Durable Power of Attorney. As a general matter, the powers granted to a guardian are not much different than those granted to an attorney-in-fact under a power of attorney. You can name an attorney-in-fact to manage some or all of your financial and/or medical affairs, or a court can appoint a guardian to do the same.
The main difference between these two processes is court supervision:
A power of attorney is signed while the individual is still (mentally or legally) competent; the individual willingly gave someone powers over them.
A guardianship, however, is conducted when someone is not competent; the individual does not willingly give someone powers over them.
Because the individual in a guardianship is not willingly giving someone those powers, a court supervises the process to ensure the welfare of the ward. State laws require the guardian to notify certain individuals (including the ward) of the guardianship case, to propose a plan of care for the ward, to file regular reports on the status of the ward’s financial and/or medical affairs, etc.
In short, a guardianship is much more work that a power of attorney, and, as a result, it is much more expensive. A Durable Power of Attorney may be a few hundred dollars, while a guardianship can reach thousands of dollars in attorney’s fees, plus court costs and other expenses.
The good news is that those costs can likely be avoided by executing a Durable Power of Attorney while you are still competent. However, there are a still certain cases where an individual with a power of attorney requires a court-appointed guardian. That is why a Nomination of Guardian is a great tool to prepare for worst-case scenarios.
Nominate a guardian as part of your estate plan
Hopefully, you or your children will never need a guardianship. But estate planning is all about preparing for the worst. A Nomination of Guardian is a crucial estate planning instrument because it can help avoid a great deal of conflict, stress, and cost concerning your care (or your children’s care) and the care of your estate.
To discuss executing a Nomination of Guardian as part of your estate plan, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.
David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
