Can a guardian be held liable for the actions of the ward?
Guardians are only responsible for those duties/responsibilities granted to them by the court.  As long as they are carrying out those duties and responsibilities in good faith, they should be protected from liability for the actions of their wards.  However, if they are negligent in their duties, and as a result of that negligence, their ward causes injury to a third party, the guardian could be held liable.

When can a guardian be held liable for his/her own actions?
Section 4-901 of the guardianship law (Title 30) states, “any guardian who willfully violates the duties or willfully misuses the power assigned by the court and thereby causes injury to the ward or damages to the financial resources of the ward shall in addition to any criminal penalties, be liable in a civil action for any actual damages suffered by the ward”.

Can a guardian be paid?
Section 4-401 of Title 30 allows a guardian to receive compensation and reimbursement for expenses.  The statute reads, “Every guardian must be allowed the amount of his reasonable expenses in the execution of his trust, and he must also have such compensation for his services as the court in which his accounts are settled deems just and reasonable”.  Compensation for a percentage of income collected on behalf of the ward is also allowed in this section of the law.  Most guardians within DDSD's service system do not seek such compensation since the money comes from their wards’ funds, which are often very limited.  If the guardian does seek compensation or reimbursement, they must seek court approval before accessing the funds.

Professional guardians can be hired and paid for their services.  Some professional guardians do exist in Oklahoma, but it is not a big industry as it is in many other states. 

What is a guardianship voucher and who is eligible for it?
Per OAC 340:100-3-5.2 and Section 228 of Title 56, DDSD can provide help in paying for legal fees associated with guardianship services through a voucher program.  The voucher is a certificate from DDSD that may be redeemed by an attorney to reimburse him or her for legal fees.  The voucher is currently worth $700.00 but this amount is subject to change.

The voucher is available to persons receiving Home and Community-Based Waiver services, residents of the Northern Oklahoma Resource Center in Enid, the Robert M. Greer Center in Enid, and the Southern Oklahoma Resource Center in Pauls Valley.  To be eligible for the voucher, the potential guardian must be a relative of the person or be a certified volunteer through the TARC ARCCorps program, and must be recommended and approved by the DDSD capacity assessment team. DDSD does not support obtaining guardianship by certain groups of otherwise eligible people due to the potential for conflict of interest.  In these cases, vouchers will not be issued. The groups referred to are identified in the following Q&A’s.

Can relatives who are also guardians be a paid provider of services for their ward?
Per OAC 340:100-3-33.2, “legally responsible relatives” are prohibited from being paid providers of services.  Parents of minor children, legal guardians of minor children, and spouses are considered “legally responsible relatives”.   Other relatives who are also guardians may be a paid provider of services for their ward but only if they are employed by a provider agency (i.e., they may not directly contract with DHS).

Who is prohibited from serving as a Volunteer Guardian?
Per OAC 340:100-3-5.1, DDSD employees, DDSD contract providers and their employees who serve the individual, the immediate family members of contract providers who serve the individual, and extended family members of contract providers, if financial interdependence exists (between the employee and the family member).  Immediate family members of DDSD employees are also prohibited from serving if the employee is a member of the service recipient’s Team.  Extended family members are prohibited if the employee is a member of the service recipient's Team and financial interdependence exists (between the employee and the family member).  Exceptions to this policy may be granted in special circumstances.

At the Resource Centers and Greer, state law prohibits any OKDHS employee from serving as a Volunteer Guardian for residents of these facilities.

Can guardians be employed by a provider agency and work directly with their wards?
If the guardian is a relative, the answer is yes as long as they are not considered "legally responsible relatives" as discussed earlier; however, each provider agency establishes its own policy or practice regarding this.

If the guardian is a volunteer, the answer is no, he may not be employed by the provider agency who serves his ward (OAC 340:100-3-5.1). Exceptions may be granted in certain circumstances (see next Q&A for specific circumstances). This policy is in keeping with Section 4-105 of Title 30, which states, “In conducting an inquiry to determine whether a person is suitable to serve as a guardian, the court shall determine if…there exists a conflict of interest which would preclude or be substantially detrimental to the ability of the person to act in the best interest of the subject of the proceeding”. Because a guardian usually has the power to determine where a person resides and what services he receives, there exists a clear conflict of interest for a guardian who works for an agency who provides these services. In rare cases, an exception to this policy may be granted. (This policy does not apply to relatives, because the relative is given the benefit of the doubt that he will put the best interest of his family member above the interests of his employer.)

Can Specialized Foster Care providers serve as guardians for the service recipient in their care?
No.  OKDHS policy OAC 340:100-3-33.2 prohibits legal guardians from being paid as direct contract providers of waivered services except under the following circumstances: They are the only provider of the service due to geographic remoteness or they are uniquely qualified to provide the service due to considerations such as language.

 Do HIPAA rules restrict a guardian’s access to read his/her ward’s records?
No.  Guardians have full access to their ward's records.

Can guardians and Volunteer Advocates write in the service recipient’s record?
Records are the property of each provider agency (and Resource Center) and therefore the answer depends on each agency’s policy or practice.

Can potential guardians have access to service recipient’s/potential ward’s records?
Yes.  OAC 340:2-8-8 regarding disclosure to friends and relatives is applicable here. Potential guardians should be fully aware of what issues they will be taking on so that they may make an informed decision as to whether or not they want to become the guardian of a particular person.  Therefore, potential guardians may read the records as long as they understand that the records are confidential and may not be disclosed to anyone outside of the guardianship process.  DDSD encourages the signing of a statement to that affect.
 

Do guardians have access to APS and OCA reports involving their ward?
Section 10-105 of Title 43A, requires that the APS investigative report be filed with the court to which the guardian is accountable. The guardian may request a copy from that court, but it is the judge’s discretion as to whether or not to provide it.

OCA policy does not allow for the release of an OCA investigative report to a guardian except by court order.

Can guardians sign a Do-Not-Resuscitate order?
Section 3-119 of Title 30 prohibits a guardian from consenting on behalf of the ward to the withholding or withdrawal of life-sustaining procedures from the ward, except as authorized by an advance directive executed pursuant to the Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act.  If there is no such advance directive, the guardian must petition the court where the guardianship was originally obtained to be granted a separate order.

Can guardians use power of attorney to appoint someone to act for them when they are going to be unavailable?
No.  A guardian may not sign a power of attorney appointing an agent to act as guardian for their ward in case of their inability to act whether due to illness, vacation, etc. To do so would circumvent the law that is designed to protect vulnerable adults, by allowing a person who had not been screened and approved by the court to perform duties on behalf of an incapacitated person.

Suggestion: If a guardian knows they will not be accessible for frequent periods of time, they may want to establish a co-guardianship. The guardianship order could be structured so that the co-guardian is given authority to act only upon certain circumstances, if the original guardian did not want to share authority otherwise.

What should a team do when they have concerns about a guardian?
Consider mediation. The Administrative Office of the Courts offers guardianship mediation where trained mediators assist the team and guardian to come to a resolution that all parties agree upon and that is in the best interest of the ward. Always consider this as an option if there is no outright allegation of abuse, neglect or exploitation (if there is such an allegation, report to APS). The contact number for the mediation program is 405-522-7876 or 877-521-6677. Be sure to report the situation to the Guardianship Coordinator and Area Manager or Resource Center Director. They can provide guidance on how to work with the guardian to address the issue. An attempt to terminate a guardian is usually the option of last resort.

Are capacity assessments mandatory for service recipients who are on the In Home Supports Waiver (IHSW)?
DDSD policy requires that a service recipient’s guardianship status be reviewed annually. However, only the guardianship Initial Review and Annual Review is required for those on the IHSW.  If the review indicates the need for a full capacity assessment, it should be offered and included as an outcome in the Needs Assessment if the family wishes to meet to complete it. 
 

Can a family member refuse to allow a capacity assessment?
Yes. Each situation is addressed on a case-by-case basis. The case manager should document efforts to reach an agreement to conduct the assessment, and the family’s reasons for declining. If the situation is such that the assessment is a critical part of ensuring the health and safety of the service recipient, supervisory personnel should be contacted for instruction on how to proceed. 

DISCLAIMER: Any and all written or oral statements and other information provided to the public, whether to individuals or corporate entities, by employees of the Developmental Disabilities Services Division (DDSD) of the Oklahoma Department of Human Services (OKDHS) concerning programs administered by DDSD or by other divisions of OKDHS are not intended to be, and do not constitute, legal advice. We are not attorneys, and cannot provide legal advice. The intent of this document is for informational purposes only.  If taking any action suggested in this document, please consult an attorney.