Temporary guardianship defined
As a lawyer here in Oklahoma, I am regularly asked by clients to explain the concept of temporary guardianship without court. That is not surprising because there are two basic scenarios where some form of guardianship – including temporary guardianship – tends to come into play in the lives of Oklahoma citizens: 1. when someone becomes incapacitated and there is no Attorney-in-Fact; and 2. when a parent becomes unable or unwilling to care for his/her minor children. In this article, we are going to take a look at the definition of temporary guardianship as well as some general information related to these types of cases.
Temporary Guardianship of Person
According to the Oklahoma Bar Association, "[a] temporary guardianship is a temporary solution where the court will appoint an individual as the guardian of a person (adult) or estate (child), lightening the burden on the parents or siblings while giving them time to find a permanent solution." A temporary guardianship of the person is most often used for children, but it can be temporary guardianship over an adult, too.
Temporary Guardianship of the Estate
Temporary Guardianship of the Estate usually refers to guardianship over property that is owned by an adult or child who is incapacitated or possibly incapacitated and unable to make a decision about the estate in which they own an interest.
In Oklahoma, temporary guardianships can be requested "for the immediate protection of the ward," but a temporary guardianship of the estate cannot exceed thirty (30) days. However , it is possible to have multiple temporary guardianships if there are different reasons for their creation and if they are not the same reasons that had already been granted by the Court.
Without Court
A temporary guardianship that is done without court hearings is simply a type of family law where there is an emergency, as recognized under 43 O.S. Section 1231 (ex parte procedures for temporary guardianships of minors.) The goal is to have a guardianship in place to take care of the person and/or the estate.
Typically, a temporary guardianship without court will occur if (and this is NOT an exhaustive list): 1. A parent, or both, have been deployed for military service or to fight in a war where the U.S. has been involved; 2. a parent has been incarcerated on criminal charges; 3. a parent is out of the jurisdiction and a family member cannot get him to return, but is otherwise willing to serve as guardian; 4. a parent has died; or 5. none of the above apply, but there is a severe medical illness or condition where the parent or both parents have been unable to reasonably act as a Parent.
It is important to note that having a Guardianship without Court is not a substitute for a Divorce or the establishment of a Paternity action. It can be a fast solution to a short-term problem, but that does not mean that the problem will not get worse later on.
Oklahoma Family Law Made Simple will be taking a look at this topic in much greater depth in an upcoming publication, including the definition of "ex parte," the requirements for requesting emergency guardianship from Court, and the process that Guardianship plans must take to become permanent guardianships.
Relevant laws in Oklahoma
In Oklahoma, temporary guardianship is governed by Title 30 Oklahoma Statutes section 3-103 entitled "Guardianship of person". These statutes set forth that a guardian may be appointed over the person of a ward. Ward means a person for whom a guardian has been appointed. Court means the district court in the county where the guardianship proceeding began. Guardian means a person who has been appointed by the court to have the care and custody of a ward. The appointment creates the relation of guardian and ward between the guardian and the ward. So what does this mean to you? It doesn’t matter if you think you should be acting as the parents’ guardian to care for the children, judges in Oklahoma do not approve a temporary emergency guardianship just because you are a loving member of the family wanting to help. Oklahoma law requires quite a bit more than that to give you the authority to temporarily care for someone’s child under an emergency guardianship. You can provide a loving and stable home for the child, but the judge will not simply send his or her child to you based on that fact alone.
Securing guardianship without a court
When it is not practical to go before a probate judge to determine issues relating to a minor, there may be a suitable alternative to obtaining that relief in probate court in Oklahoma. The concepts of temporary guardianship without court approval is one such alternative. This is the situation where an often-times small matter of family business warrants the creation of a legal document giving someone authority to do act as a "surrogate" for a parent who is in possession of material assets that should be used for the benefit of a child.
While many people may think that a court appearance is necessary in order to obtain an authority from a judge, that is not always true. A probate judge is often asked to appoint a guardian to hold and manage property on behalf of a minor child or incapacitated adult. But the concept of just transferring custody or possession to another person could be accomplished with a legal document. With a little planning and a good attorney, you can set up a type of surrogate agreement in which one signer gives power of attorney to another signer in order to transact business in then owner’s name. In fact, there is a statutory form that has been developed for this purpose. The form is both a legal document and a signed declaration by a parent about looking after a minor child.
In some events, having a third party to act on behalf of a parent with respect to the affairs of a minor child can delay or prevent the necessity of filing a guardianship case in Oklahoma. Think of it as an enforceable surrogate agreement. An example of such a scenario might involve parents who are moving to another state and they own real property in Oklahoma. A temporary arrangement can divert the power of attorney to a Grandparent who will look out for the best interests of the minor child. Getting an attorney to write this up for you is a smart move; and it can be done on an emergency basis, such as in the event of an unexpected job transfer. Old school attorneys might essentially refer to it as a power of attorney "for the person." And since a judge doesn’t sign off on this type of document, it doesn’t go before the court, so it is a bit of a private family agreement between the signers.
With proper drafting, this document is very durable, and it can last until it’s revoked by either party. You don’t want to trust someone was a power of attorney for life! As part of the plan, an end-date can be determined in advance, such as when your family’s new residence is established, or for a specific number of days or months. If you can, get a witness to your signature. Sometimes power-of-attorney agreements are notarized, although that’s not a requirement in Oklahoma (unless it’s specifically called for).
Non-judicial temporary guardianship pros and cons
The Benefits and Risks of Non-Judicial (but Not Legal) Guardianship in Oklahoma
In Oklahoma, there are no laws that allow an adult to delegate authority to another adult as a non-judicial alternative to a guardianship. However, to the extent the adult can take unilateral actions to initiate and/or cut off relations with third-parties, he or she may be able to create the functional equivalent of a guardian on a less-than-permanent basis. Practically speaking , the benefits of temporary guardianship without court involvement include speed and privacy. Few if any people need to be notified about the arrangement and it can be put into effect promptly. But the risks and challenges to recipients of the arrangement include legal pitfalls (the third-party may act with too much reliance on the authority of the caretaker) and lack of enforceability (the third-party can disregard the authority of the caretaker). Absent statutory authority under the Oklahoma Probate Code, a non-judicial caretaker might be best viewed as a personal assistant, personal agent or family servant rather than a legal guardian.
Getting a guardian when the court must step in
While proceeding without the court often works perfectly in less serious situations, there may be circumstances where the court needs to be involved. Sometimes it is simple a matter of common sense that requires the temporary guardian to be appointed by the court.
Here are some scenarios that may lead to the need for court involvement:
The Absconding Parent is Not Known to the Guardians
If the parents are not known to the guardian, the situation could be more serious than the guardian initially thought. When the parent is not known, the guardians should be cautious to make sure they have all the facts before they agree to step into the role of a guardian.
If the guardians cannot contact the parent, or know very little about the parent, they should contact the court and ask for a judge to review the situation. The judge may have staff who can investigate on your behalf or may be able to appoint an attorney to investigate for him or her. Regardless, it will be best to let the court decide whether the guardianship is needed.
The Absconding Parent Has a Substance Abuse Problem
Even if the guardians know the parents very well, if the guardians suspect that the parent may have problems with substance abuse, it is always better for the guardianship to be handled through the court. The guardian may want to proceed with caution, however, since it may upset the parent if he or she is in recovery and thinks that you are accusing him or her of using drugs or alcohol.
The Absconding Parent is a Hazard to the Child
If the absconding parent has issues that you suspect could be hazardous to the health and well being of your child, you should seek the court’s protection. Generally, abuse and neglect issues are handled by the Oklahoma Department of Human Services. However, it is important to make sure that the court appoints a guardian as soon as possible to protect the child.
The Guardians Cannot Contact the Parent
Although this is not that common of a scenario, if the guardians have no idea how to contact the parent, then it is best to get the court involved. In some cases, the court may be able to have an attorney ad litem appointed and then investigate who has physical custody of the child and where the parent is located.
Conclusion: Choices that make sense
While a temporary guardianship without court intervention in Oklahoma brings with it certain advantages, it is also essential to understand the disadvantages that go along with choosing this method over more traditional procedures. In particular, the limitation on authority can be troublesome and the protections offered by the court are bypassed. Rather than overstepping your bounds as a temporary guardian, it may be more prudent to place your trust in a court-supervised temporary guardianship.
Indeed, temporary guardianship offers strengths and weaknesses, and readers are encouraged to think carefully about how they might apply to their specific circumstances. With a good understanding of the pros and cons , Oklahomans can make a more informed decision about how to proceed with their guardianship situation.
It should also be noted that some guardianship procedures require a co-guardian be named to facilitate oversight and accountability in the process. However, when a temporary guardianship without court intervention is utilized, there is no inherent statutory provision for naming a co-guardian.
We recommend our readers consult an Oklahoma attorney to gain better understanding of state laws relating to temporary guardianship and to receive a better outlook on whether or not temporary guardianship without court intervention is the right method for their particular needs.