Adult “Custody” or Guardianship

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

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