Florida Divorce * Child Custody * Domestic Violence Law Lawyer | Boynton Beach

Twenty-nine year old Australian Woman disabled by both cerebral palsy and multiple sclerosis is committed to the legal guardianship of a child welfare Agency in her childhood.

At the time when Woman was taken into government care, her younger Sister was about 4 years old. Sister reportedly resisted the government action, and allegedly struck a child welfare worker.

Woman’s file today reflects that Sister, now twenty, has “anger management issues” … and, as a result, Sister is denied any meaningful contact with Woman, even though Sister keenly desires to have a relationship with Woman.

Sister has appealed to the welfare Agency that administers adult guardianship in Australia, but the Agency has refused to intervene in the situation.

And so Sister is limited to contacting Woman’s caregiver each week, in the hope of finding out how Woman is doing and securing eventual granting of her repeated requests for access to Woman.

Read more in this Adelaide [Australia] Now article: Let me help look after my disabled sister.

Recently, an acquaintance was telling me how her mother, a very intelligent professional woman about eighty years old, deteriorated from highly functional semi-retirement from her profession, to requiring hospitalization, rapidly followed by institutionalization.

All in the course of about six weeks. Six weeks.

She had lost all capacity to remember anything, in the virtual blink of an eye. Severe dementia. She could not even remember to eat or drink enough to sustain herself.

This woman and her husband had run several successful businesses and had amassed significant wealth.

Leaving her family not only reeling in shock, but also scrambling to try to sort out her affairs.

Hot on the heels of hearing about this, a prospective client consulted me in regard to her elderly parents.

For some years, they had wanted to create powers of attorney, both for help in managing their financial affairs and for health care decisionmaking purposes if they became unable to do so for themselves. They had also wanted to re-title some of their properties, to avoid delays in transfer in probate(s).

But, somehow, they just never quite got around to taking care of these things. They could always do it tomorrow …

Now, the father has Alzheimer’s and the mother has difficulty getting around.

In both families, the impaired family members now require caregivers.

These impaired family members cannot manage their own affairs. They can no longer execute legal documents, be it a will, a trust, a deed or a power of attorney.

Sooner or later (probably sooner), it will very likely be necessary for their spouse or a child to file for guardianship of them. So that a loved one will have the legal authority to make decisions and pay for their care as they would want, and to ensure that their affairs are handled as they would want.

Unfortunately, guardianship is a potentially complex, slow and expensive court proceeding.

The sad thing is that in both families, all of the family members’ objectives could have been accomplished without the need for a guardianship proceeding … if these parents had just taken a little bit of time and spent a little bit of money to execute a few important but relatively simply legal documents … before the parent deteriorated mentally.

All of the parents could have had peace of mind, and their children could have had peace of mind. Their spouse or children could have been authorized in advance to smoothly step in to do whatever needed to be done or decided – and they would have had access to the resources necessary to implement these things.

Without the delay, expense and added stress of having to scramble to consult and retain lawyers to file guardianship under such difficult circumstances.

Age, disease, even injury can all cause severe infirmities that can interfere with a person’s ability to manage their own affairs and provide for one’s own care. In some cases, the infirmity can strike in an instant. At any age.

If the impaired person has minor children, the stakes are even higher.

Who will care for their children? Who will be able to manage any property intended for them.

This is every bit as important as having life insurance or a will. Some would say more important.

As in the case of the two families discussed above, people just like you and your family, nothing good will come of procrastinating. Don’t get stuck as they did.

Contact your family law attorney or estate planning attorney immediately … and give yourself and your family the priceless gift of peace of mind.

Father and Mother have a Son together while living in Massachusetts.

Father and Mother break up.

Father returns to Costa Rica.

Massachusetts child welfare agency removes Son from Mother’s care after Mother allegedly tests positive for cocaine and marijuana use and suffers a seizure.

Father’s Mother, Grandmother, cares for Son for about a year.

Then Son is returned to Mother.

About a year later, Mother again allegedly tests positive for drug use.

Then Mother turns Son over to Father and gives permission for Father to take Son to Costa Rica.

Mother asserts that Father’s permission was conditioned on returning Son to her in the US in September of 2006.

Father denies the existence of any such condition.

Father, worrying about Mother’s chronic substance abuse, keeps Son with him beyond September of 2006.

Mother files for custody in Massachusetts family court and presses criminal charges against Father in Massachusetts.

Massachusetts family court awards Mother custody of Son.

Father is not served with the court order.

In 2008, Father is arrested for kidnapping Son, and Father is extradited to Massachusetts.

All this time, Son remains in Costa Rica with Father’s brother, Uncle.

Costa Rican court grants Uncle permanent guardianship of Son.

Mother is reportedly arrested for hitting a police officer after fainting while driving. Mother confesses to having used marijuana with prescription medication.

Nonetheless, the Massachusetts family court orders Father to return Son to Mother.

Father does not.

Father pleads guilty to one count of parental kidnapping and is sentenced to time served.

Meanwhile, the Costa Rican family court refuses to recognize US jurisdiction over Son, who has been in Costa Rica for five years.

Costa Rica did not enter the Hague Convention on the Civil Aspects of International Child Abduction until 2008.

And summons Mother to appear in court in Costa Rica regarding her parental fitness.

Father is awaiting disposition on another pending criminal charge against him in Massachusetts.

Son remains in Costa Rica, where he is reportedly thriving and excelling, having reportedly overcome developmental and speech delays.

Read more in this South Coast [MA] Today article: Parent kidnapping case drags on.

Although things are changing, at least in some states, many gay couples raising children together still face many legal challenges, especially in the event of a breakup or the death of the biological parent.

In Michigan, one lesbian couple, an Attorney and a former Mechanic, have taken pains to create as nearly as possible the equivalent of equal spousal and parental rights, despite Michigan’s prohibition of adoption by a gay person of their partner’s biological or legally adopted child.

In this de facto family, the Attorney has given birth to two children. The Mechanic stays home and serves as the primary caregiver to the children.

Accordingly, the Mechanic earns no salary and is not permitted to save for her retirement on a tax-favored basis.

Nor does the Mechanic have any right to visitation or timesharing with the children in the event the couple breaks up … or the Attorney dies.

In fact, the Mechanic’s parental rights are severely limited even being together with Attorney. The Attorney signs a parental consent form twice a year authorizing her to consent to treatment for the children and related matters. Hardly a reliable solution.

The couple have consulted with experts who concentrate on serving nontraditional families like theirs. They have received some helpful advice … but cannot or choose not to act upon much of it.

As far as the children go, key recommendations include:

1. power of attorney for parental authority, which does not expire automatically

2. parental appointment of guardian

3. domestic partner agreement and

4. co-parenting agreement

From a financial perspective, the breadwinner partner can hire the nurturing partner as a nanny for a nominal salary. That would at least permit the nurturing partner to invest their nominal salary in an IRA.

Read more in this New York Times article: The Extra Hoops Gay Parents Must Jump Through

Illinois Husband and Wife have four Daughters from ages four to fifteen.

Wife is not happy in the marriage. Wife files for divorce.

Husband is not served with divorce paperwork. On the contrary, Husband and Wife reportedly reconcile.

Husband and Wife attend a holiday party together on December 5th.

Husband is allegedly intoxicated.

There is snow on the ground in the area where they live.

On the way home from the party, Husband’s and Wife’s car crashes into a light pole.

Husband is killed in the accident.

There are footprints leading away from their vehicle.

And Wife is nowhere to be found.

Subsequent searches, as permitted by the local weather, have turned up no leads as to Wife’s whereabouts or fate.

An unlikely and unforeseeable tragedy.

Which leaves Husband and Wife’s four young Daughters inadequately provided for or protected.

In this instance, the Daughters’ paternal aunt and uncle have reportedly filed for guardianship of Daughters. This is not necessarily a rapid or inexpensive process.

When parents don’t plan ahead and make arrangements for such unlikely and unforeseeable tragedies, their children are at risk of being taken into child protective custody and placed in foster care by child welfare agencies.

Have you planned ahead and made arrangements to protect your children from the unlikely and unforeseeable tragedy that has stricken this family?

In Florida, a straighforward will and a simple designation of a preneed guardian for your children can generally provide the care you want your children to have in such a situation … without the need for an expensive, drawn-out guardianship proceeding or child welfare agency involvement.

Why not add these items to your New Year’s resolutions – and actually follow through and do them? For your children’s sake.

Read more in:

• this Chicago WLS-TV ABC 7 news article: Records show missing mom had filed for divorce

• this Chicago CBS 2 news article: Police Hope To Resume Search For Tanya Shannon

• this Chicago Fox News article: Search for Tanya Shannon On Hold

Texas Husband and Wife have adult Daughter with Downs Syndrome.

Husband and Wife had guardianship of Daughter, but were reportedly removed as Daughter’s guardians … at a hearing held without notice or opportunity for them to appear and defend themselves against allegations of abuse and neglect.

It is unknown who sought that hearing and who is serving as Daughter’s guardian at this time.

A new hearing was coming up in the case, but that was suddenly canceled, also for unknown reasons.

Daughter’s Brother denies any allegations of abuse and neglect by Husband and Wife.

Husband and Wife believe the cancellation of their hearing was political.

Read more in this Dallas KDAF 33 TV news article: Arlington family who lost custody of disabled daughter in secret hearing cries foul.

Bio Mother of one year old Baby is just sixteen. Bio Mother has two adult Sisters.

Bio Mother and Baby live with Bio Mother’s mother, but Sisters worry over boyfriends Bio Mother is involved with.

Bio Mother’s boyfriend reportedly has made threats of violence against one of the Sisters. Bio Mother allegedly leaves Baby in the care of her teenaged friends overnight.

But child welfare agency investigates Bio Mother – twice – and investigation finds no evidence of abuse or neglect of Baby.

Bio Mother leaves Baby with Younger Sister for two weeks to go on vacation.

When Bio Mother returns, Younger Sister doesn’t give Baby back.

Bio Mother files criminal complaint for kidnapping.

Older Sister, a nurse, files a legal case in family court to obtain guardianship of Baby. Older Sister makes numerous serious allegations in her case against Bio Mother.

Family court judge grants Older Sister temporary guardianship of Baby on an expedited (if not emergency) basis.

Bio Mother is not given an opportunity to respond to the allegations before the family court judge rules.

Two months later, Older Sister admits in court that she has no hard evidence to back up any of her allegations.

Hearings continue.

Read more in this Des Moines Register article: Sisters tussle over tot’s guardianship.

Husband and Wife, are both natives of India who immigrate to the US and become US citizens.

Husband and Wife have Son, who is also a US citizen.

The family lives in the US, specifically California, for Son’s whole life.

Wife is unhappy and now claims to be a victim of abuse.

While on vacation visiting family in India, Wife decides to stay in India to see how she enjoys the work there and to have Son in India while she is doing so.

Husband arguably consents to the seemingly temporary arrangement.

Two months after arriving in India and after Husband files for divorce and custody of Son in the US, Wife seeks an Indian court order awarding her custody and guardianship of Son.

Husband intervenes in the Indian action, arguing that India does not have jurisdiction over Son.

The Indian trial court nonetheless proceeds and find for the Wife.

But the intermediate level appellate court reverses, concluding that Son is a permanent resident of the US and merely a temporary resident of India and therefore defers to the California court’s jurisdiction over Son.

The case is now on appeal to the Supreme Court of India.

Its forthcoming ruling will impact many families in similar situations.

India is not currently a party to the Hague Convention on the Civil Aspects of International Child Abduction.

Read more in this [Indian] Daily News & Analysis article: Can Indian judiciary interfere with orders of courts abroad? SC to decide.

Children whose parents are unwilling or unable to care for them typically end up in foster care. But there’s often a highly viable alternative.

It’s called kinship care: placement with extended family members, most commonly grandparents. Approximately 350,000 of New York’s children are in kinship care.

New York’s commissioner of Children and Family Services reports that displaced children fare better when placed with relatives than in foster care, with strangers.

The Commissioner spearheaded a statewide “subsidized kinship guardianship program”. The currently $3 million program saves the state considerable funds otherwise expended on traditional foster care.

The current budget funds case management, respite services, support groups, advocacy and legal aid.

But the program’s budget is being shrunk by budget cuts to one-third of its current amount. At the same time that the number of children brought into the program is rising.

What’s wrong with that picture?

Read more in this Albany Times Union editorial: Kinship programs benefit children.

Eighty-two year old Husband owns used auto parts business.

Husband has stroke.

Wife gets legal guardianship of Husband.

Husband is admitted to nursing home.

Eighty year old Wife discharges Husband from nursing home.

Wife rejects in-home nursing care.

Husband and Wife live in back room of Husband’s business establishment…

In conditions unfit for human habitation.

Police find Husband, unattended, at his business establishment, malnourished, with numerous bedsores, afflicted by dementia, and wearing soiled clothing.

Wife is arrested for abusing Husband.

Wife represents herself at trial.

Wife maintains, in essence, that Husband is fine and should be allowed to return home.

Wife is convicted of abusing Husband.

Wife is ordered to relinquish legal guardianship of Husband to Wife’s and Husband’s daughter or the state.

Wife is denied unsupervised visits with Husband.

Wife is sentenced to eight years’ confinement in prison, suspended, with probation.

If Wife disobeys any of the court’s orders, Wife’s suspended sentence could be reinstated.

Husband is committed to a nursing home.

Wife reportedly states that Husband is unhappy in the nursing home and will be retaining his own counsel to procure his discharge.

Husband and Wife have at least $1 million in assets.

Read more in this Delaware News Journal article: Delaware crime: Husband abuse gets wife eight years’ probation.

Mother and Father separate.

Mother has primary timesharing with eight year old Daughter.

Mother is a hairstylist earning a modest income.

Mother had cancer as a child, but is healthy now.

Mother cannot afford health insurance for herself because it is priced based on her childhood preexisting condtion.

So Mother is unable to provide health insurance for Daughter.

(Father’s health insurance status and whether he pays any child support, medical or otherwise, is unknown.)

So …

Mother gives guardianship of Daughter to Grandparents, who have health insurance.

By virtue of their guardianship of Daughter, Grandparents are able to add Daughter on to their health insurance.

But Mother hates having to give up legal custody of Daughter to her parents … and worries about it … just a bit.

Read more in this Columbia Missourian article: One in 50 million: Ferguson transfers custody to get daughter health coverage.

Parents in an intact family should designate in each of their wills a guardian for their children in the event of both of their untimely deaths in a common accident.

As soon as their first child is born. If not sooner. No matter the parents’ ages or current health statuses.

The above almost goes without saying.

Otherwise, guardianship must be decided by courts, with a large potential cost and delay, at the children’s ultimate expense. The children could wind up in foster care while the courts are sorting things out.

Once parents split up, each parent should revisit their earlier designations of guardians for their children.

Whether through the passage of time or changes in feelings related to the breakup, either parent (or both) may no longer be comfortable with their original designations.

Generally, both parents must agree on the designation. Not necessarily so easy, at a time when the parents may not be able to agree on blue skies or grey.

Even more difficult, once both parents split up, each parent should now consider the possibility of the death of either parent alone.

Normally, if one parent dies, the other parent will assume sole custody of the children, unless the surviving parent is obviously unfit.

There may be legitimate reasons, however, why one parent would not want the other parent to raise their children alone in the event of his or her own death.

It is also possible that the other parent would be fine at raising the children … but terrible at handling their finances and/or inheritance.

The law allows for guardianship of children to be separated into guardianship of their person and guardianship of their property. With this division of “labor”, a different person can be designated guardian of the children’s property from the person who is designated as guardian of the children’s persons.

While either parent’s designation (or, for that matter, the designation of both) is not legally binding on the court, it is certainly worthwhile for a parent to fully express to the court in writing their feelings on guardianship of their children and their supporting reasons.

It can focus the court’s attention on potential concerns with the other parent or other pre-designated guardians.

Read more in this Kingsport [TN] Times-News article: Deciding guardianship important legal step for parents.

Husband and Wife have baby Daughter.

Marriage deteriorates. Divorce is filed.

Wife is killed in car accident. Divorce stops.

Wife’s will expresses Wife’s wishes that her mother, Daughter’s grandmother, raise Daughter if something were to happen to her.

But Daughter has a father, Husband.

Husband raises Daughter in North Dakota, sometimes living with his father and sometimes with his mother. Both of his parents are very involved in caring for Daughter.

Now Husband dies in a car accident.

Husband did not leave a will.

Now all the grandparents want Daughter.

Wife’s mother, who lives in far off New England, somehow obtains temporary guardianship of Daughter.

Wife’s mother points to Husband’s father’s disability and Husband’s mother’s allowing her own youngsters to be raised by Husband’s father after their divorce. Husband’s father contends the disability limits heavy lifting and Husband’s mother explains that she only left the children with her ex for continuity.

Read more in this Worthington [MN] Daily Globe article: Grandparents fight for child custody.

A 70 year old Hawaiian Grandmother is raising her teenaged and preteenaged adopted grandson, and her grandniece and grandnephews, of whom she is legal guardian. Because their parents are unable to do the job.

Making matters worse, this Grandmother recently suffered a stroke that left her dependent on a wheelchair to get around.

She manages to care for the kids, with her 18 year old grandson’s help.

But she worries about child protective services removing the children if she can’t take care of them.

She gets by with public assistance, but would welcome additional assistance, especially for a larger vehicle to accommodate her wheelchair.

Legal Aid of Hawaii offers grandparent seminars on child protective services, adoption and guardianship, complete with free resource kits.

Read more in these Honolulu Advertiser articles: Grandmother needs help with 4 kids she’s raising and Seminars set for grandparents raising grandkids.

Mother and Father live in Ireland with Son.

Mother and Father break up.

Mother allegedly abducts Son to Britain.

Father brings an application for Son’s return to Ireland under the Hague Convention on the Civil Aspects of International Child Abduction.

Father seeks guardianship of Son in an Irish Court.

A British Court orders that Mother’s and Son’s passports be deposited into Court pending further order of the Court at a hearing next month.

A spokesman for the Irish Family Breakdown Support Services notes that Ireland is in need of new laws to strengthen the legal rights of unmarried fathers in Ireland.

In the last year, Ireland has seen a twenty-five percent uptake in parental abduction cases.

Read more in this Irish Independent article: Father fights for return of son (5).

Florida Mother is disabled. Mother takes prescription drugs for pain from her disability.

Department of Children and Families removes Child, places her with maternal grandparents and establishes case plan for Mother to regain custody of Child.

The case plan requires Mother to obtain a medical evaluation from the University of Miami (U of M) ”to explore non-narcotic alternatives to her pain management.”

U of M charges for such evaluations, so Mother applies for financial aid due to her indigency. Mother is wait-listed.

Because the U of M medical evaluation does not take place “timely” due to Mother’s inability to pay for it, the trial Court terminates the disabled Mother’s parental rights and awards permanent guardianship of Child to grandparents. Just as though Mother is indifferent to the case plan.

On appeal, the ruling is reversed and the Mother’s parental rights are reinstated. Reason: parental rights may not be terminated where it is impossible for parent to complete case plan through no fault of parent.

Read more in this Miami Herald article: Mom gets second chance at child’s custody.

Children abandoned, abused or neglected.

State steps in to protect them, typically by removing them from the home on at least a temporary basis.

If suitable relatives are willing and available, the children will usually be temporarily placed with them over strangers.

And then begins the process of assessing the weaknesses in the parents’ parenting skills and how to support the parents in building them up – if they are willing and able.

In a recent Maryland case, the children were placed with their aunt. The children did well with her.

And their parents failed to enhance their parenting skills.

One and one-half years later, a court awarded the aunt custody and guardianship of the children.

Not an unusual outcome under the circumstances.

The parents appealed. Also not unusual.

But the rest of the story is.

Because the mother is American Indian.

Therefore, the children are subject to the Indian Child Welfare Act.

That means that the Court was required to make “active efforts” to keep the family intact because the children were American Indian.

(Not that the Court doesn’t or shouldn’t make every reasonable effort to keep every family together, but the requirement is stricter for American Indian children … )

The intermediate appellate court reversed the award of custody and guardianship to the aunt, ruling that the State had, in effect, given up on the parents prematurely, after six months.

Read more in this Baltimore Sun article: Md. court makes unique custody ruling.

An umarried Irish father has filed an application for return of his children from England under the Hague Convention on the Civil Aspects of International Child Abduction.

According to the father, the mother took the children to England without his consent.

Because the legal rights of unmarried biological fathers appear to be narrower under Irish law than than under our law, the father is reportedly arguing that the mother’s removal of the children denied him the opportunity to seek legal guardianship of their twin boys.

The case is being closely followed in Ireland in that the facts appear to support what could become a landmark ruling under Irish law.

Read more in this United Press International article: Father’s case may be landmark legal matter.

A Michigan judge presiding over family law cases thinks the law should change to make it tougher to terminate parental rights.

The reasons are twofold. First, the number of children who enter and remain in foster care, without families, throughout their entire childhoods, has skyrocketed in Michigan.

Second, most of these children want to be back with their biological parents.

An alternative option to termination of parental rights would be for the courts to appoint guardians for these children – unless and until they are able to be reunified with their biological parents.

This alternative would leave all options open, except possibly adoption. But the adoption option seems more of a pipedream than anything else for an enormous percentage of these children.

Read more in this Detroit News editorial: Reform state law that creates more orphans.

Granted, you may not see much of them in family court these days, as indicated in my recent post, Grandparents’ Rights: Another Comeback?

But family court proceedings don’t tell the whole story.

More than 297,000 children in New York state live with their grandparents.

Many of those children end up placed with grandparents via social services action in juvenile dependency court cases arising out of abandonment, abuse or neglect.

Other kids end up with their grandparents through formal agreements with their parents, informal dropoffs and informal stepping up to the plate.

Others through guardianship proceedings.

A few even get there through family court proceedings, agreed orders, placement or custody agreements, even the occasional trial.

If the vast majority of those kids aren’t placed with their grandparents through family court, that’s still a lot of grandparents actually exercising grandparent (if not parental) rights (and responsibilities).

Just likely not in family court.

Read more in Remember grandparents who are parents, too.

The Tulsa (OK) World recently published the article below entitled “Adult custody cases to increase” regarding guardianship of elders.

The issues discussed are hardly unique to Oklahoma, and the general information provided is worthwhile to Floridians as well. In addition to legal tools such as durable powers of attorney, Florida also permits residents to execute Declarations of Preneed Guardian.

Creating such instruments in advance, while legally competent, may ultimately save thousands of dollars in legal fees and costs; weeks (or months) of uncertainty and helplessness; and a good deal of time spent in court.

Just as importantly, they give the person who someday may need care and assistance (and his or her loved ones), the peace of mind of knowing that the people they have chosen to help them will have the legal instruments they will need to step in immediately when and if the need arises.

Florida parents should know that they can also create declarations of preneed guardian to care for their minor children and/or their property in the event of their deaths.

Tulsa World (Oklahoma)

January 29, 2006 Sunday
Final Home Edition

News; Tulsa; Crime; Pg. A1

973 words

Adult custody cases to increase

ZIVA BRANSTETTER World Projects Editor

As the population ages, guardianship cases involving incapacitated people are expected to become more common. The recent battle over an ailing oilman allegedly kidnapped using a chartered jet was unusual, but the question of guardianship for an elderly family member is becoming increasingly common, legal experts say.

The number of guardianship cases in Tulsa County District Courts has increased rapidly, growing 60 percent in the past decade to 714 cases last year. In the past six years, more than 4,000 guardianship cases have been filed in Tulsa County and thousands remain active, all overseen by one judge.

While much of that growth was due to grandparents seeking custody of their grandchildren, the number of cases involving incapacitated adults is expected to grow as the population ages.

“The court is almost overwhelmed,” said David Winslow, who spent nearly 27 years as a judge in Tulsa County, including 19 years as presiding judge over the probate division. Winslow is now an attorney in private practice and handles cases including guardianships.

“You take that number and multiply it by the last 10 years. The court doesn’t have the personnel or ability to review all those situations.”

As the population of America ages and life expectancy increases, family members increasingly face the question of how to help aging relatives manage their affairs. Between 1990 and 2020, the population aged 65-74 is projected to grow 74 percent, according to the U.S. Census Bureau.

Laws in every state allow for family members or others to serve as court-appointed guardians of incapacitated adults, called wards.

After a court determines an adult lacks capacity to manage his or her daily affairs, most guardians can make decisions including where the ward lives, how assets are spent and how health-care needs are met.

A recent guardianship case that drew public attention involved a family battle over oilman Charles Foster Doornbos. A Washington County judge granted Doornbos’ daughter special guardianship, which did not require advance notice to his wife. His daughters alleged his wife made several real estate and financial transfers and was gaining control of his millions.

The pair lived in Arizona and Doornbos’ daughters brought him back to Oklahoma on a chartered jet. His wife is now suing his daughters, alleging they kidnapped Doornbos.

The Oklahoma Supreme Court ruled Jan. 20 that the man was in no danger and his daughters must release him to his wife.

Winslow said people may prevent such problems in several ways.

“The adult has the capacity, if they will exercise it, to have durable powers of attorney. They can set up trusts, and they can pick people who will be their guardian, who will be taking care of them when that moment comes when the gray matter isn’t mixing right.”

A study by the General Accounting Office released last year found that guardianships can lead to abuse of the elderly if not properly supervised. The report found wide differences among what state courts require from guardians and a lack of collaboration between state and federal agencies.

Most courts surveyed by the GAO also failed to track the number of active guardianships or maintain a database on abuse, the study found.

Brenda Cowett, who heads the probate division for the Tulsa District Court Clerk’s Office, said nearly all petitions requesting guardianship in Tulsa County are approved.

A review several years ago found that hundreds of Tulsa County guardians had not filed their annual reports, Cowett said. State law requires guardians to file yearly reports stating how they are spending the ward’s assets and other actions they have taken.

Cowett said the court clerk’s computer system now notifies officials when guardians fail to file reports, and some guardians have been removed as a result. Prospective guardians also undergo a criminal background check, she said.

Tulsa County Sheriff’s Sgt. Randy Pierce learned more than he wanted to know about guardianships after he was shot in 1998 by a man later ruled mentally incompetent. Pierce sued the man and obtained a $650,000 judgment in 2002. He has been unable to collect the judgment because the man’s attorney set up a guardianship.

Pierce said he worries about the victims of people who have their assets shielded by guardianships.

“If they do have assets, they can just go stick it in a guardianship and prevent themselves from making any kind of payments,” Pierce said.

Ziva Branstetter 581-8378
ziva.branstetter@tulsaworld.com

How guardianship works Here are some highlights of Oklahoma’s guardianship law:

The guardianship law applies to minors and incapacitated persons in the state. It also applies to minors’ property in the state or to incapacitated persons living in other states.

When a petition is filed seeking guardianship of an adult, the court must determine whether the person is incapacitated due to mental illness, a developmental disability, physical illness or drug or alcohol dependency. To be found incapacitated, the person must be unable to make responsible decisions related to health and safety or be unable to manage financial resources.

Guardians can be special, general or limited. Special guardians are appointed for up to 30 days when the person’s health or financial resources are shown to be in immediate danger. General guardians make all decisions regarding the person, his property or both. Limited guardians are granted specific powers over the person or his property.

When a guardianship is granted, the order will outline what kinds of powers and responsibilities the guardian has. The guardian is required to file a plan regarding care of the ward.

Any adult who is not incapacitated may choose a guardian of person or property in advance. Section 3-102 of the state guardianship code outlines the procedure.

For educational purposes only and not intended to infringe on Copyright 2006 The Tulsa World