March 29

Guardianship Process for adult children

Cortes Law Firm Oklahoma City Estate Planning Attorney

Today, we're gonna talk about the guardianship process and let's jump right in. Now, if you watch last week's video, we talked about the probate process for step-by-step everything that we have to do generally step-by-step in the probate process. And you've heard me talk a lot about guardianships in terms of a living probate. And that is because when you do a guardianship obviously the person who you're trying to get a guardianship over, is still alive and that can sometimes complicate things.

So let's talk about why you would need a guardianship in the first place? And we're gonna talk about this in terms of adults because that's what we really see on a regular basis is adult guardianships that come into our office. And the reason we usually need to have an adult guardianship is well, the person who needs the guardianship, the, the Ward, right.

The person who's incapacitated, that person usually has not made any plans themselves ahead of time. When they get sick or something happens to them and they're incapacitated, they're in the hospital, whatever it is that happens to them where they can't make decisions on their own, they have no plan in place.

And if they don't have a plan in place then we have to do a guardianship. When a family comes into our office, talking about a guardianship, needing a guardianship over an adult whether it's their child who maybe was in a car accident or maybe they have unfortunately succumbed to drugs or alcohol, and they're out on the street and they need to get that adult child, the help that they need, or maybe it's their parents who've because of age are no longer able to make decisions themselves.

And maybe criminals are calling them on a regular basis trying to get them to sign up for this deal or this deal. And as a child, you're noticing that a lot of money is missing from their bank accounts or you're worried about them going out and driving, or you're worried about the meeting with their doctors, or really anything their day-to-day activity. In our office we see those two main categories come in.

An adult child who needs help. An adult parent who needs help. So the first thing we do is make a determination on whether or not this is an emergency. Because that can change things up a little bit.

If we're just going to file a regular petition for guardianship, then we will go down to the courthouse and file what's called a petition for guardianship. Makes sense, right. And that is usually set sometime in the future not more than 30 days into the future. And we have to give notice to everybody.

We have to give notice to other children that there are for this person. If it's adult child, then we have to give their parents notice that there's gonna be hearing. And we actually have to give the Ward, the person who were seeking guardianship over notice as well, that there's going to be a hearing within 30 days to determine whether guardianship over them should be granted.

Depending on the guardianship we will usually state in there whether we are seeking guardianship over the person and their finances, or maybe just their finances, or maybe just their person. I will tell you 99% of the time it is over their person and their finances together.

So that's a regular petition for guardianship where we're trying to get guardianship over somebody and there's not an emergency. If there is an emergency, then along with a petition for probate, we also file what's called application for emergency guardianship to be appointed as a special or a temporary guardian over this person.

And like I said, this can come up in situations where a child, an adult child is maybe strung out on drugs or alcohol and literally they're out on the street, or they're in some really bad situations that we need to get them out of those situations.

And the only way to do that, the only way for the authorities to really act, is to have this guardianship in place. And the same thing with adult parents, if an emergency exists, where the Ward the person we're trying to get the guardianship over is an eminent harm, then we will seek an emergency guardianship. And when we do an emergency guardianship we file the petition for guardianship just like we did on a regular guardianship, right.

And we also do the application for emergency guardianship and we file those together. And we take the family or the person who wants to be the guardian, the person who wants to be in charge, we take them down to the courthouse with us. We file a petition for guardianship and the emergency application at the same time.

And once we get it file stamped, and we pay the court costs, the court fees then we go to whichever judge it is assigned to and we ask to see the judge because we have an emergency on our hand. Now I'll say an emergency does not exist. Usually if you call the courthouse and say, hello, I'd like to come down next week, a convenient time to talk to the judge about an emergency guardianship. That's not an emergency guys.

An emergency is the person who needs help, is an eminent harm right now this second and we have to get an emergency guardianship in place for them. We will usually see the judge immediately. If they're available, if not, another judge will make themselves available. And hopefully after hearing testimony the judge will grant the emergency guardianship and the person seeking the guardianship then becomes what's called a special or a temporary guardian over the person.

And then they, that way they can go and immediately try to get that person whether it's adult child or their adult parent the help that they need. It doesn't end there though. The next step is usually a hearing within not very many days, usually about 15, 10 days. The judge has tried to get it done pretty quickly. And we do that to give notice to everybody that an emergency guardianship has just been granted. And we're going to have a hearing now to determine whether that emergency guardianship should be continue or should it be continued into a permanent guardianship for the next year or several years. See what I'm saying? And a few days before that hearing, you also need to file what's called a plan of treatment.

We say to the judge that there was an emergency, what is our plan to get the Ward, the help that they need. We have to actually put that in a plan for the help over their body and their mind and over their finances. What are we gonna do to take care of them?

Then we have the next hearing and we present all of this evidence to the judge. The person who we have the guardianship over the Ward has the opportunity to appear at that hearing if they want to and talk to the judge. And that's really important that they have to have notice that there is going to be a hearing for determination over their rights over somebody who's gonna have rights over them.

If everything goes good at that hearing and the judge believes that it should be changed into a permanent guardianship, then the guardian is then given new letters of administration to grant them permanent guardianship over the person, whether it's their adult child or their adult parent. The guardianship process doesn't just end there guys.

After the judge interest is over giving the person letters of guardianship, then they really need to go in and really gather all the assets just like in a probate. And what I generally recommend is find out where they had their bank accounts, where their credit cards are, all you're gonna have to be if you're the guardian are now going to have to be in charge of all of that for the person who you got a guardianship over.

So what we generally do, is we recommend that people get a brand new bank account and transfer all the money cause a lot of times if somebody needs an adult guardianship then we see this a lot where they have a little bit of money here, a little bit of money on this bank account, a little bit of money in this bank account.

And it's just because they're having difficulty. And sometimes they just start opening several bank accounts everywhere in different credit accounts. And so really that guardian needs to go in and kind of just gather all the assets and make sense of it and try to consolidate as much of it as possible.

And then their job is to take care of their person, take care of the person that they, they were seeking a guardianship over, for the next year or for the rest of their life. And every year after the guardianship is granted, the guardian has to go back to the court and present them with an annual report of what happened. And it really needs to be pretty detailed.

This is what we started out when the guardianship was, was granted, this is what we spent over the year. This is the money that came in over the year, and this is what they have now in their bank account at this moment when we're having the annual account. And the judges will look at it and they'll either approve it or disapprove it, or if they have any questions, they'll ask questions at that time.

And this has to continue every single year on the anniversary of when the original letters of guardianship were granted. As you can guess the reason they do this is, because the courts need to have a continual check to make sure everything is done correctly for the Ward.

That their money isn't being spent on trips to Disneyland or lavish cars or whatever it is. Their money has to be used for them. So that's really important that you have your annual account every single year. And that there's a hearing with the judge for the judge to approve that.

The other thing we see a lot is real estate. Even though somebody has been granted a guardianship or conservatorship over the person, generally in most States, you still have to get court approval to sell any real estate. And that's very important. A guardian can not just unilaterally decide to sell all of the Ward real estate. And again, you can see the reasons for that, you're extinguishing an extraordinary right.

You're converting a piece of real property into cash that could be spent on basically anything and we lose track of the cash, right. Any real estate in most States has to go through court order before it can be sold even if you have a guardianship in place.

I'm not gonna go into detail on the different types of guardianships, but from your, probably your own research if you're watching this video you know that there are guardianships and conservatorships. A conservatorship is generally the power over somebody's property, their assets, their real estate, their money, stuff like that. A guardianship is usually over the person themselves ,over their body.

Like I talked about in this video up here, guardianship and conservatorship can sometimes be used interchangeably just depending on what State you're in. Always consult in whatever jurisdiction you're in with an attorney who's living in that area.

That's very important because they can have different meanings depending on where you are. I've just gone over generally what the guardianship process is. And guys, it's gonna depend on what State you're in. Every state, like I said, has different definitions of the terms of guardianship, conservatorship.

Sometimes they both mean the same thing. In the same vein, the procedures are different wherever you go. This is generally the process of a guardianship. Check with your local attorney, depending on which jurisdiction you're in, and it may be easier or it might be much more difficult. Good luck. I know I've thrown a lot at you today, so that's why we've prepared our free guide on estate planning.

I'll put a link to it in the description below and in the comment section below that, so that you can download it and get started in the right direction. And to help you out even more, watch this video up here and this video up here. If you enjoy this video, then it guys please smash that subscribe button and click on the like button and also click on that little bell so you'll get notified every time we post a new video. Have a great day and an awesome week. And as always, thanks for watching.


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