Size: px
Start display at page:




2 TABLE OF CONTENTS: Introduction 2 and 3 Alternatives to guardianship 4 What is guardianship? 4 and 5 How is the need for a guardian determined? 6 What are the qualifications to become a guardian? 7 and 8 The guardianship voucher program 8 Types of guardianship 9 Limitations of guardians 10 Role of the guardian 11

3 2 INTRODUCTION Freedom of choice is one of the most basic of human rights. The ability to make choices to decide what to wear, what food to eat, where to go, where to live and with whom to make friends these choices reflect who we are as a person and our beliefs, preferences and dreams. Adults with mental retardation and other developmental disabilities have the same rights to make choices about their lives as any other people. Having a developmental disability is not, by itself, a good enough reason to assume that a person cannot make decisions or manage their own affairs. Sometimes, because of limited mental capabilities and communication skills, a person may need help in making competent decisions about life. That is where a guardian can be of benefit. While on one hand, guardianship can help protect a person s rights and best interests, it is a decision that must be handled with great caution and never just for the convenience of others. Anytime a person s freedom to make choices is limited, regardless of the reason, it can lessen self-respect and self worth. Guardianship is a tool to be considered only when a person cannot make competent life decisions. Just because a decision is not one you would make, does not mean the person making the decision is incapacitated or not capable. We all make choices that others may not agree with or think are poor choices. Even with a guardian, a person still has the right to help make decisions about life. It is the responsibility of the guardian to help that person make the right decisions.

4 Parents of children with disabilities often assume they have the legal right to make decisions for their son or daughter with mental retardation beyond childhood simply because they are the parents. This is not the case. Once any person reaches the age of 18, they are considered by law to be competent to manage their own affairs and make their own decisions. This means that adults with disabilities have the legal right to make all their own decisions and give their consent or permission until a judge decides they are not capable. In that case, a guardian would be appointed. A parent is often appointed as the adult child s guardian, or the guardian may be a brother or a sister. If no family members are available, then a close friend or a volunteer may be asked to serve in that role. Regardless of who may want to be that person s guardian, legal guardianship must go through a court process and it must be for a very good reason. The Developmental Disabilities Services Division (DDSD) of the Oklahoma Department of Human Services (OKDHS) serves thousands of people with developmental disabilities. Among the services provided is assistance with guardianship issues. This booklet is intended to provide general information about guardianship as well as DDSD s philosophies and policies regarding this very important decision. 3

5 4 ALTERNATIVES TO GUARDIANSHIP Before making the guardianship decision, there are some less drastic alternatives that may better meet the person s need for assistance. Some are quite informal and others might need the assistance of an attorney to set up. They include: Informal assistance and guidance from family, friends, and others; Representative Payee (to handle financial matters); Limited Bank Accounts; An independent volunteer advocate (someone to help speak for that person and make decisions); Power of Attorney (to make decisions about health care and property); Living Wills, and; Trust Funds. WHAT IS GUARDIANSHIP? Guardianship is a legal relationship that is set up by a judge. It can be general, allowing the guardian to make certain major decisions for that person, or it may be limited, giving decision-making authority to the guardian in only a few areas of a person s life. It may be ordered for only a limited time or even for a single decision. Guardianship need not be life long, nor is it an all-or-nothing deal. The guardianship relationship can be designed to fit each person s needs and still allow the person to make as many decisions in their life as possible.

6 There are many mistaken beliefs about the role of the guardian. Here are a few examples of what a guardian is not: A guardian is not a service provider. A guardian has a role in identifying what services a person may need, and in advocating for and monitoring those services, but it is not the guardian s role to personally provide care or services. Parents who are appointed guardians to their adult children may also provide services to their child, but being the guardian does not make this an obligation. A guardian is not a parent. Being appointed a guardian does not create a parent-child relationship for non-parental guardians, nor does it continue the more encompassing role parents have with their minor children. A guardian is not a controller. Guardianship should not be used as a control mechanism over the person. That is not the intent of the law. A guardian may be given responsibility over specific areas of a person s life, such as medical or financial decisions, but that does not mean the guardian can control every aspect of the person s life. 5

7 6 HOW IS THE NEED FOR A GUARDIAN DETERMINED? DDSD serves thousands of people with developmental disabilities, children and adults. When a young person being served by the division approaches the age of 18, a guardianship assessment is performed to determine if there is a need for a guardian. All adults being served have an initial guardianship assessment when they enter the service system, and the assessment is reviewed annually during their Individual Plan (IP) process. There are three conditions that must be met before DDSD will consider a guardianship recommendation: 1. The person must have a current need for programs and services that are essential for health or safety; 2. The person must lack the capacity to consent to those programs and services; and, 3. There are no less restrictive alternatives that would eliminate the need for a guardian. If all three of these conditions apply the process of finding a guardian begins. In choosing a person to serve as a guardian first consideration is usually given to close family members. If family is not an option the DDSD guardianship coordinator will make a referral to the TARC ARCCorps program. ARCCorps works with the person s case manager and team in finding a volunteer to serve as a guardian. ARCCorps is responsible for recruiting, training and supporting volunteer guardians for persons receiving DDSD services.

8 WHAT ARE THE QUALIFICATIONS TO BECOME A GUARDIAN? Regardless of whether or not a guardian is related to the person, he or she should be aware and sensitive to the needs and preferences of the person. That is why so much care is taken in finding the right match for each person. A guardian must be a caring and devoted person who is willing to make a long-term commitment to the person he or she is volunteering to serve. The guardian must be available to attend the person s team meetings and be accessible to the person they serve on a regular basis. The amount of time required of a guardian will vary with the needs of each person. The Oklahoma Guardianship Act (Oklahoma State Statutes, Title 30) sets certain requirements about who can be a guardian. DDSD uses the same criteria and has some additional requirements for persons receiving services from the division. The guardian: is not a minor (at least 18 years old); is not incapacitated or partially incapacitated; is not a convicted felon (except upon further review by the court into the nature of the felony and then only with court approval); is under no financial obligation to the person he or she is volunteering to serve; has no conflict of interest that would prevent or be harmful to the ability of the volunteer to act in the best interest of the person he or she is volunteering to serve; is a family member or, if not a family member, the volunteer must be a resident of the state of Oklahoma for at least one year (relatives can live outside the state); and, supports the philosophy and values of the DDSD mission statement. 7

9 8 The guardian cannot be: an OKDHS employee; a DDSD contract provider, e.g. residential, vocational, psychology, speech, therapy, occupational therapy, foster parents, etc.; an employee of contract providers; and, an immediate family member of contract providers, where it is shown that financial interdependence exists. THE GUARDIANSHIP VOUCHER PROGRAM DDSD can help pay for legal fees associated with guardianship services through a voucher program. A voucher is simply a certificate from DDSD that may be redeemed by an attorney for reimbursement of legal fees. This assistance is available to persons receiving Home and Community-Based Waiver services and residents of the Northern Oklahoma Resource Center in Enid, the Robert M. Greer Center in Enid, and the Southern Oklahoma Resource Center in Pauls Valley. To be eligible for this voucher, the potential guardian must be a relative of the person or a certified volunteer through the ARCCorps program. The potential guardian must also be recommended and approved by the DDSD guardianship assessment team. Immediate family members must meet certain financial eligibility requirements to qualify for the voucher. An immediate family member includes a spouse, mother or father. To be eligible for the voucher, the annual (yearly) adjusted gross income of the immediate family member or co-applicants must be $60,000 or less. Other relatives or volunteer guardians do not have to meet these financial requirements. Information on the voucher can be obtained through the individual s DDSD case manager. If the application is approved, a dated voucher is sent to the potential guardian who then seeks an attorney. Upon completion of the guardianship proceedings, the attorney who provides the service submits the voucher to DDSD for payment.

10 TYPES OF GUARDIANSHIP When creating the guardianship order the judge has flexibility. The judge may make specific rules for each guardian in order to protect as much as possible the person s independence. Under the Oklahoma Guardianship Act, there are three types of guardianship: 1. General: A general guardian is a guardian of the person (also referred to as a ward) or of all the person s property. Guardian of the Person: This type of guardian has the legal authority to make personal decisions for the ward such as living arrangements, employment, education and what kinds of medical procedures the person should have, but only to the extent that the person cannot make their own decisions. Guardian of the Property: This kind of guardianship gives the guardian the legal authority to manage money or other property of the person, including the person s wages. 2. Limited: A limited guardian can make certain decisions for the ward, or about the property of the ward within this state, or both. Limited guardianship is often used for persons who need someone to make medical decisions for them. 3. Special: A special guardian is appointed for an emergency purpose and for a set period of time. Generally this period of time is approximately 30 days but may be extended if necessary. 9

11 10 LIMITATIONS OF GUARDIANS There are some limitations, by law, to the things a guardian can decide. Guardians cannot give consent to the following without court approval: Withhold or withdraw life supports Terminate parental rights Abortion Psychosurgery Organ donation Experimental procedures Placement in a mental health facility without a court hearing Prohibit marriage or divorce Guardians only have authority over the areas of a person s life that are specified in the guardianship order.

12 ROLE OF THE GUARDIAN The specific responsibilities and limitations of the guardian s role are specified in the Oklahoma Guardianship Act and may be further detailed in the court s order. The basic role of the guardian is to follow the orders of the court, assure that the person s rights are being protected, and the essential needs of health and safety are being met. This includes giving consent for the person to receive necessary services to meet basic needs and helping the person to be as independent as possible. It is very important for guardians to remember that people who have guardians still need to be involved in all the decisions that affect their lives and to act on their own whenever possible. A guardian should understand the person well enough to help them make important decisions and to give consent and approval for services. This means maintaining sufficient contact to know the person s capabilities, finances, physical and mental health, and other needs. In Oklahoma, a guardian s services are considered voluntary and guardians are not financially compensated or paid. Liabilities of a Guardian According to the Oklahoma Guardianship Act, a guardian is not held liable for decisions made in good faith and within the limits set by the court, as long as the guardian has acted responsibly and without negligence. A guardian can be held liable if he or she neglects their duties and responsibilities. If a guardian misuses the powers assigned by the court, the guardian may be liable for civil damages as well as criminal penalties. 11

13 12 FOR MORE INFORMATION ON GUARDIANSHIP ISSUES Developmental Disabilities Services Division (866) or (405) TARC ARCCorps Program (800) or (918) or Disclaimer This publication is designed to provide general information about guardianship for DDSD service recipients. This information should not be used as a substitute for professional services, legal advice or other expert assistance.

14 OKDHS Pub. No Issued 11/2005 This publication is authorized by the Oklahoma Commission for Human Services in accordance with state and federal regulations and printed by the Oklahoma Department of Human Services at a cost of $ for 5,000 copies. Copies have been deposited with the Publications Clearinghouse of the Oklahoma Department of Libraries. OKDHS offices may request copies on ADM-9 electronic supply orders. Members of the public may obtain copies by contacting the OKDHS Records Center at (405) or (toll free).