Okla. Admin. Code § 340:65-5-60

Current through Vol. 42, No. 4, November 1, 2024

Section 340:65-5-60 - Circumstances when a guardian or conservator may be needed

(a)Definitions. The following words and terms, when used in this Section, have the following meanings unless the context clearly indicates otherwise.

(1)"Incapacitated adult" means, per Section 1-111 of Title 30 of the Oklahoma Statutes (30 O.S. § 1-111), a person 18 years of age or older:

(A) who is impaired by reason of:

(i) mental illness as defined, per 43A O.S. § 1-103;

(ii) intellectual or developmental disability as defined, per 10 O.S. § 1430.2;

(iii) physical illness or disability;

(iv) drug or alcohol dependency as defined, per 43A O.S. § 3-403; or

(v) another similar cause, and

(B) whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent the person:

(i) lacks the capacity to meet essential requirements for his or her physical health or safety, or

(ii) is unable to manage his or her financial resources.

(2)"Partially incapacitated person" means, per 30 O.S. § 1-111, a person:

(A) whose impairment is such that without a limited guardian's assistance the person is unable to:

(i) meet the essential requirements for his or her physical health or safety; or

(ii) manage or engage in all of the activities necessary to effectively manage his or her financial resources; or

(B) who is considered to be legally competent in all areas not specified by a court in its dispositional or subsequent orders. The person retains all legal rights and abilities other than those expressly limited or curtailed in the orders.

(3)"Natural guardian" Parents are natural guardians of their minor child(ren) regardless of whether they live in the same household, unless a legal guardianship or custody transfer supersedes natural guardianship. Persons other than the parents may be considered natural guardians when they have, over a continuing period, had custody of the child(ren) and have held themselves responsible for care, support, and maintenance.

(4)"Guardian" means, per 30 O.S. § 1-111, a guardian may be general, limited, or special.

(A) A general guardian is a court appointed person who serves as the incapacitated person's guardian to ensure that the essential requirements for the person's health and safety are met, to manage the person's estate, or both.

(B) A limited guardian is a court appointed person who serves as the partially incapacitated person's guardian and who is court authorized to exercise only certain guardianship powers over the person, his or her or estate or financial resources, or both.

(C) A special guardian is a court appointed person who exercises certain specified powers to alleviate a situation threatening serious impairment to the incapacitated or partially incapacitated person's health or safety, or a situation when the person's financial resources will be seriously damaged or dissipated unless immediate action is taken.

(5)"Conservator" means a conservator has the same powers and duties as a guardian or limited guardian of an incapacitated or partially incapacitated person's property, per 30 O.S. § 3-215. This includes the investment, management, sale or mortgage of the person's property and his or her debt payment. The conservator is not responsible for ensuring that the essential requirements for the incapacitated or partially incapacitated person's health and safety are met.

(6)"Manage financial resources" means to manage financial resources or the estate means those actions necessary to obtain, administer, and dispose of real property, business property, benefits and income, and to otherwise manage personal financial or business affairs, per 30 O.S. § 1-111.

(7)"Meet the essential requirements for physical health or safety" means to meet the essential requirements for physical health or safety means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury is more likely than not to occur, per 30 O.S. § 1-111.

(b)When a guardian or conservator may be needed. An applicant or recipient who meets the definition of an incapacitated or partially incapacitated adult, per (a) of this Section, may need the protection afforded by a guardian or conservator. When assistance is needed to select a guardian or conservator, a referral may be made to Adult Protective Services.

(1) For State Supplemental Payment (SSP) recipients who are:

(A) blind or 65 years of age and older, legal guardianship or conservatorship is the only method the SSP payment may be made to a person other than the recipient, per 56 O.S. § 172;

(B) under 65 years of age, OKDHS may make the SSP payment to the incapacitated or partially incapacitated person's legal guardian or conservator when needed for his or her protection adult; or

(C) under 16 years of age, SSP payment is made to a natural guardian, when available, per Oklahoma Administrative Code 340:15-1-6(c)(3) unless he or she is not competent to transact his or her own business or is otherwise unsuitable or legally disqualified to serve as the natural guardian, per 30 O.S. § 2-106. When the minor reaches 14 years of age, the minor may nominate his or her own guardian, when court approved, per 30 O.S. § 2-103.

(2) For Temporary Assistance for Needy Families (TANF) benefits, when the child does not live with his or her parent(s), the relative payee who lives with the dependent child need not be appointed as guardian to receive benefits on the child's behalf.. When the eligible relative the child resides with has a guardian or conservator, the payment is made to the eligible relative's guardian.

(c)Guardian or conservator responsibilities. The guardian or conservator is responsible for managing the applicant or recipient's financial matters. This includes signing the SSP or TANF application or renewal and any other necessary forms and providing required verification to determine the person's SSP or TANF eligibility, per 56 O.S. § 166. When a guardian or conservator is appointed after an application is made, but before the application is approved or denied, the guardian or conservator signs and completes a new application using the same application date as the original application.

(d)Court costs. The court clerk and the associate or district judge may not charge court costs in cases involving the guardianship of persons who are applicants for or who are receiving Social Security benefits or assistance or veterans disability compensation of pension, per 56 O.S. §192.

Okla. Admin. Code § 340:65-5-60

Amended at 10 Ok Reg 4465, eff 8-5-93 (emergency); Amended at 11 Ok Reg 1687, eff 5-12-94; Amended at 18 Ok Reg 2096, eff 7-1-01

Amended by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/15/2022