Frequently Asked Questions About Incapacitated Adults

  1. What is the purpose of an adult guardianship?
  2. Do I need a guardianship if I have power of attorney over the incapacitated adult?
    • You should not need a guardianship over the incapacitated adult if the power of attorney was validly executed and is durable, meaning, it is effective through incapacity of the signing adult. However, some banking institutions will not accept a Durable Power of Attorney on its face which may make it necessary for you to obtain a guardianship from an Oklahoma District Court.
  3. Do I need a guardianship if the incapacitated adult appointed a Healthcare Proxy?
    • If the incapacitated adult nominated a Healthcare Proxy in writing, then a guardianship over the incapacitated adult’s person should not be necessary. However, it may be necessary to obtain a guardianship over the incapacitated adult’s property to managing his or her financial affairs.
  4. Do I need a guardianship if the incapacitated adult’s property is in a trust?
    • If the incapacitated adult’s real and personal property is in a validly executed trust which is owned and managed by a trustee, a guardianship over the incapacitated person’s property should not be necessary. However, it may be necessary to obtain a guardianship over the incapacitated adult’s person to make decisions regarding his or her healthcare or living arrangements.
  5. Can I still be the guardian if someone else was nominated by the incapacitated adult to serve as guardian?
    • If the incapacitated adult has nominated another person to be his or her guardian in a validly executed document, then the nominated person will have priority of appointment. The judge may give preference of guardianship in the following order:
      1. The person nominated in writing by the Ward to serve as guardian
      2. The person already appointed guardian
      3. The spouse of the Ward
      4. An adult child of the Ward
      5. A parent of the Ward
      6. A sibling of the Ward

This does not automatically disqualify you from serving as guardian as there are several factors the court considers when appointing a guardian.

Contact Smalley Law Firm here for a free consultation to discuss these and other questions you have about adult guardianships.