The responsibility of caring for a loved one in need is both an honor and a challenge. In the state of Oklahoma, two primary legal avenues can be utilized to assist those who cannot independently manage their personal and/or financial matters due to illness, disability, or age: Power of Attorney (POA) and Guardianship. Below, we will delve deep into both options, exploring their implications, and determining the best route for your unique situation.
Understanding Power Of Attorney In Oklahoma
A Power of Attorney is a legal document that gives an individual (the agent) the authority to make decisions on behalf of another person (the principal). It can grant broad powers—covering everything from managing bank accounts to making healthcare decisions—or it can be narrowly tailored to allow the agent to perform a specific task.
Oklahoma Power Of Attorney Laws
Oklahoma law stipulates that all actions taken by an appointed attorney-in-fact under a durable power of attorney remain valid and legally binding, regardless of the principal’s disability, incapacity, or extended absence. This means that any decisions or actions taken by the attorney-in-fact during these periods have the same legal effect as if they were made by a competent, non-disabled, and present principal. These actions will also be applicable and binding to the principal’s successors in interest.
Types Of Power Of Attorney In Oklahoma
There are several types of POAs recognized under Oklahoma law, including:
- General Power of Attorney: This POA gives broad powers to the agent to act on the principal’s behalf in a variety of situations.
- Limited Power of Attorney: This provides the agent with the authority to act in specific situations only.
- Durable Power of Attorney: It remains in effect even if the principal becomes incapacitated.
- Healthcare Power of Attorney: This POA allows the agent to make medical decisions on behalf of the principal.
Guardianship In Oklahoma
When a person is unable to make or communicate responsible decisions concerning their personal or financial matters due to disability, age, or illness, a court may appoint a guardian. Guardianship is a legal relationship where the guardian acts and makes decisions on behalf of the person in need (the “ward”). Guardianships can be for adults or for children.
Oklahoma Guardianship Laws
Guardianships in Oklahoma are governed by the Oklahoma Guardianship and Conservatorship Act. This law stipulates the circumstances under which a guardianship establishes, the duties and responsibilities of the guardian, and the rights of the ward.
Types Of Guardianship In Oklahoma
Oklahoma recognizes several types of guardianships, including:
- General Guardianship: Here, the guardian has control over all aspects of the ward’s life.
- Limited Guardianship: The guardian only has authority over specific aspects of the ward’s life, as determined by the court.
- Special Guardianship: This is a temporary guardianship arrangement when there is an immediate or emergency need.
- Emergency Guardianship: An emergency guardianship also applies to both children or adults. In both types of guardianship the proposed ward is presenting evidence to the Court regarding an emergency. When the case involves an adult usually the court requires an affidavit from their persons doctor. The doctor is reporting to the court that the adult is unable to care for themselves. In the case of a child, the ward is testifying to the court of an immediate risk of harm to the child. The risk of harm requires testimony of first-hand knowledge of the immediate risk of harm.
Power Of Attorney Vs. Guardianship: Which Is The Right Choice?
The choice between Power of Attorney and Guardianship often depends on the situation at hand. A POA is generally simpler to implement, provides flexibility, and is less invasive, as it does not require court involvement. However, a POA is only effective if the principal is competent at the time of creation. In a power of attorney the person is voluntarily giving the power. They are granting it to the person and its voluntary. Its not something that gives a person power of a person. Rather a POA is used as a tool for the person granting the power to allow another to help with their business. A power of attorney can be withdrawn anytime by the person that granted it.
On the other hand, guardianship can be more appropriate for individuals who are unable to make or communicate decisions effectively due to their incapacity. However, the process of establishing guardianship is more complex, requires court involvement, and could potentially be more costly. A person can grant the ward guardianship with their consent. Or on the other-hand the guardianship is granted on an emergency basis. In the case of an emergency the proposed guardian must provide evidence of an immediate risk of harm to the ward. Both types of cases the prospective guardian must pass certain background checks designed to show their fitness as a guardian. In the case of a guardianship to terminate the relationship requires the courts approval. There are also certain other requirements like financial reporting and other year end reporting requirements set by the court.
Nominating A Guardian In A Power Of Attorney
Oklahoma law allows a person to name a preferred guardian for their person or estate in their power of attorney. If protection proceedings initiate after this, the court usually honors the person’s nomination, barring any significant reasons or disqualifications. If a court appoints a guardian after the power of attorney executes, the agent must answer to both the principal and the appointed guardian. The power of attorney remains in effect and the agent retains their authority unless the court decides to limit, suspend, or terminate it.
Tulsa Guardianship Lawyers
Choosing between a Power of Attorney and Guardianship in Oklahoma can be a complex process. It’s essential to consider the unique needs and circumstances of your loved one. Guardianship are part of both estate planning and family law depending on your circumstances. Don’t navigate these complex decisions alone. Reach out to Kania Law Office at (918) 743-2233 or contact us online to discuss your options and determine the best route for you and your loved ones.