Your child is disabled, and cannot take care of himself, and is about to turn eighteen. What do you do?
You should go to court and apply for a guardianship.
There are two types of guardianships: A guardianship of the person, and a guardianship of the property.
The same person may be both the guardian of a person and the guardian of property.
A guardian of a person, has the custody of the ward, can choose where the ward lives, and can make decisions about the education and health care of the ward.
A guardian of property, has control over all of the income, and finances of the ward. A guardian of property can control the personal property (for example, household possessions) of the ward, as well as the real property (for examples, homes and land) of the ward.
To see a full explanation of the rights and duties of a guardian, click here.
“Any person interested in the welfare of a person believed to be an incapacitated person or partially incapacitated person” may apply to be appointed that person’s guardian. Often, the guardian is a parent or other relative, but not always.
To apply for a guardianship, you must file a petition with the court.
If your incapacitated child is over eighteen, you may file the petition at any time. (Guardianships are often used to manage the property of incompetent elderly persons.) If you have an incapacitated child who at least seventeen years, six months old, you may petition for the guardianship, and the guardianship will take effect as soon as the child turns eighteen. This provision allows you to avoid any time lag between the time that the child turns eighteen and the time it takes to complete a guardianship case in court.
The petition must show why the person is incapacitated and cannot care for himself.
Normally, there is a filing fee to file the petition. However, you do not have to pay a filing fee, if the incapacitated person an “applicant[] for, or who are receiving old-age or other assistance under the Social Security Laws of this state.”
Even if your child is not receiving this type of assistance, you still may be able to avoid a filing fee if you cannot afford to pay it. Okla. Stat. tit. 28 § 152(G) allows you to file an “affidavit in forma pauperis” where you can file for free if you cannot pay the filing fee.
After you file the petition, the judge will then set a hearing date. There also may be certain persons who must be notified of the date and time of the hearing.
At the hearing, if the judge will inquire as to whether you are suitable to serve as guardian.
You may be unsuitable to serve as guardian if you, or any adult member of your household have a criminal conviction, protective order, or pending criminal charge. (Note that, these conditions do not automatically disqualify you to serve as guardian. However, if any of these conditions apply to you, then the judge may appoint you as guardian “only upon determining that the facts underlying the circumstances do not give rise to a reasonable belief that the person proposed to serve will be unfaithful to or neglectful of the fiduciary and care responsibilities of the guardian, and that the appointment is in the best interest of the ward.” But, to be on the safe side, if any of these conditions apply to you, you should disclose the matter rather than conceal it.)
You may be unsuitable to serve as guardian of property is you are insolvent (that is, unable to pay debts as they become due) or if you have declared bankruptcy within the past 5 years, or if you are under any financial obligation to the ward, or if you have a conflict of interest. (These conditions, also, will not automatically disqualify you from acting as guardian of property. But, if these conditions apply to you, the judge must “give due consideration” and be satisfied that you will still be able to properly care for the ward’s property. Also, if you are insolvent or have declared bankruptcy, that is no barrier to acting as guardian of the person; insolvency and bankruptcy are only barriers to acting as guardian of property.)
Also, if you are not a U.S. citizen, or legal resident, or legally present in the United States, you may only be appointed guardian if the court determines that there are no other qualified persons to serve as guardian, and that it is in the best interest of the incapacitated person for you to serve as guardian.
If the judge finds that you are suitable to serve as guardian, the judge will sign an order appointing you to be the guardian. After you have been appointed guardian, you must file a report with the court, every year for as long as you continue to act as guardian.
If your child is physically disabled, but is not mentally disabled, but his physical disability prevents your child from managing his property, you may be able to file a conservatorship. The qualifications to serve as a conservator are the same as the qualifications to serve as a guardian. A conservator has all the powers of the guardian of property (but not the powers of a guardian of the person.) To act as a conservator, you need to have the ward’s consent. To find out more about conservatorships, read Julie A. Evans’ excellent article, “Conservatorships: So Useful, But So Rare” in the Oklahoma Bar Journal. Click here and scroll down to page 261 to see the article.