The Oklahoma Bar Journal September 2024

T HE DECISION TO PURSUE guardianship of a vulnerable adult or senior is a big decision and often mired in complicated feelings and familial relationships. A common scenario that leads to guardianship includes, but is not limited to, caring for a disabled adult child or a senior with cog nitive impairment. The require ments for a finding of incapacity, documentation requirements, who can be a guardian, the distinc tion between general and lim ited guardianship and more are governed by Title 30, codified as the Oklahoma Guardianship and Conservatorship Act. Guardianship is trending upward in general, thus the need to protect vulnerable disabled adults and seniors continues to be an urgent issue. According to the 2022 Annual Report of the Community Aging, Living and Protective Services (CAP), Adult Protective Services (APS) completed 6,288 investigations with 3,078 substan tiated allegations. Each of these referrals represents Oklahomans at risk whose families or loved ones may seek guardianship. While an adult’s vulnerabil ity may stem from any number of conditions, such as childhood

of Title 43A of the Oklahoma Statutes, or

disability or injury, one of the most common causes of incapacity for seniors is cognitive impairment in the form of Alzheimer’s disease. The Alzheimer’s Association estimates that 6.7 million Americans are living with Alzheimer’s, with an estimated 67,000 persons in Oklahoma alone. 1 2 Additionally, they estimate that between 2020 and 2025, Oklahoma will have experienced an increase of at least 6.7% in the number of people with Alzheimer’s. 3 ianship order for adult guardian ship requires a finding that the proposed ward is incapacitated or lacks the capacity to make execu tive decisions for themselves. An incapacitated person is a person 18 years or older who is impaired by reason of one of the following: (1) mental illness as defined by Section 1-103 of Title 43A of the Oklahoma Statutes, (2) intellectual or developmen DETERMINING INCAPACITY Issuance of a general guard tal disability as defined by Section 1430.2 of Title 10 of the Oklahoma Statutes, (3) physical illness or disability, (4) drug or alcohol dependency as defined by Section 3-403

(5) such other similar cause, and

The proposed ward’s “ability to receive and evaluate information effectively or to make and to com municate responsible decisions is impaired to such an extent that the person” either:

(1) lacks the capacity to meet essential require ments for physical health or safety, or (2) is unable to manage financial resources. 4

DOCUMENTATION REQUIREMENTS Allegations of incapacity con tained in both emergency and gen eral (nonemergency) pleadings must be proven by evidence attached to a petition. If the situation is not an emergency, the petitioner should obtain medical documentation that proves the alleged medical condi tion exists. This documentation can include a letter from a doctor on their letterhead or routine medical paperwork with diagnoses, such as discharge paperwork. Routine medical reports, such as annual

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

SEPTEMBER 2024 | 63

THE OKLAHOMA BAR JOURNAL