OKDHS - OAC 340:100-3-5. Advocacy and guardianship

340:100-3-5. Advocacy and guardianship

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Revised 7-1-11

(a) Purpose. Developmental Disabilities Services Division (DDSD) Advocacy and Guardianship Program identifies the advocacy needs of each service recipient to protect the service recipient's interests, rights, and welfare.

(1) Although a service recipient may have other advocates, only a guardian may act on behalf of his or her ward, per OAC 340:100-1-2, to the extent authorized in the guardianship order and Title 30 of the Oklahoma Statutes (O.S.).
(2) Each guardian is:

(A) responsible for representing the interest of his or her ward as provided by Oklahoma law; and
(B) obligated to involve the ward in decision-making to the extent the ward is able.

(3) An advocate is responsible for assisting the service recipient to represent the interests of the service recipient.

(b) Capacity to give informed consent. Service recipients, age 18 and older, are presumed to have capacity to give informed consent except to the extent adjudicated incapacitated by the court. A service recipient:

(1) is not considered incapacitated solely by reason of his or her diagnosis or admission to:

(A) Northern Oklahoma Resource Center of Enid (NORCE);
(B) Southern Oklahoma Resource Center (SORC); or
(C) Robert M. Greer Center (Greer);

(2) may be adjudicated incapacitated in one area while being fully capable of understanding and exercising his or her rights in other areas; and
(3) has the right to exercise judgment in all areas of capacity.

(c) Assessment of capacity to give informed consent. Each service recipient's current need for advocacy or guardianship services is reviewed at least annually and documented in the Individual Plan (Plan).

(1) Form 06MP032E, Capacity Assessment, is:

(A) used to determine the service recipient's capacity to give informed consent and identify the type of assistance, if any, the service recipient needs to make life decisions and be protected from maltreatment; and
(B) completed for each:

(i) adult and minor attaining the age of 17 ½ years, who receives residential services through the Community Waiver or Homeward Bound Waiver;
(ii) child in Oklahoma Department of Human Services (OKDHS) custody who receives DDSD services upon reaching the age of 16 per OAC 340:75-8-39; and
(iii) resident older than age 17 ½ residing in:

(I) NORCE;
(II) SORC; or
(III) Greer.

(2) In order for the Assessment Team to meet to complete Form 06MP032E, all members are notified of the meeting at least two weeks in advance and offered the opportunity to provide written input if they cannot attend. The Assessment Team includes:

(A) all members of the Personal Support Team;
(B) the service recipient's primary physician, if the service recipient resides at NORCE, SORC, or Greer; and
(C) a licensed psychologist or psychiatrist, if the service recipient resides at NORCE, SORC, or Greer.

(3) For service recipients who do not receive residential services per OAC 340:100‑5-22:

(A) a capacity assessment is not required. If the family or service recipient wishes to complete a capacity assessment, the DDSD case manager includes this assessment as an outcome in the Needs Assessment or Plan, and the family participates in the assessment process; and
(B) a review of the service recipient's need for advocacy or guardianship must occur annually beginning at age 17½, and be addressed in the Needs Assessment or Plan, using Form 06MP033E, Guardianship, Advocacy, and Capacity Initial Review. If this review indicates needs in the area of advocacy, the DDSD case manager offers a capacity assessment.

(d) Recommendations of Assessment Team. DDSD supports the use of less restrictive alternatives to guardianship.

(1) The Assessment Team recommends guardianship after they have considered and ruled out less restrictive alternatives to guardianship. Alternatives include, but are not limited to:

(A) guidance and support from family or friends;
(B) a volunteer advocate;
(C) modification of the Plan to more effectively meet the service recipient's health, safety, and financial needs;
(D) a representative payee;
(E) limited bank accounts;
(F) power of attorney, durable power of attorney, or durable power of attorney with health care powers;
(G) Advance Directive for Health Care;
(H) a trust fund; or
(I) a conservatorship.

(2) If Form 06MP032E indicates that a guardian is needed, the Personal Support Team recommends an appropriate person to serve.

(A) Priority for persons to serve as guardians is given to:

(i) any person nominated by the service recipient pursuant to Section 3-102 of Title 30 of O.S. (30 O.S. § 3-102);
(ii) a current guardian appointed by an appropriate court in another jurisdiction;
(iii) a person nominated by will or other writing of a deceased parent, spouse, or adult child who was serving as the service recipient's guardian pursuant to 30 O.S. § 3-103;
(iv) the spouse of the service recipient;
(v) an adult child of the service recipient;
(vi) a parent(s) of the service recipient;
(vii) a sibling of the service recipient;
(viii) a person with whom the service recipient has been living for more than six months prior to the filing of the petition for guardianship. Providers subject to the provisions of the Nursing Home Care Act, Residential Home Care Act, or Group Home for Developmentally Disabled or Physically Handicapped Persons Act must not be appointed guardian of such service recipient unless the provider is the service recipient's spouse, mother, father, sibling, adult child, aunt, uncle, grandparent, adult grandchild; or
(ix) other relatives of the service recipient, such as a niece, nephew, or cousin.

(B) If an appropriate relative is not available, a volunteer is sought per OAC 340:100-3-5.1.

(e) Guardianship eligibility requirements.

(1) A guardian must:

(A) be at least 18 years of age;
(B) be a resident of Oklahoma for at least one year, except as provided in 30 O.S. § 4-104;
(C) not be under any financial obligation to the proposed ward; and
(D) disclose to the Personal Support Team and to the court any potential conflict of interest that may preclude acting in the best interest of the proposed ward.

(2) An incapacitated or partially incapacitated person cannot be appointed guardian.
(3) A convicted felon cannot be appointed guardian, except upon:

(A) further review by the court into the nature of the felony; and
(B) court approval.

(f) Responsibilities of a guardian.

(1) The guardian:

(A) is responsible for protecting the rights of the ward per 30 O.S. § 1-103;
(B) files the Plan for the Care and Treatment of the Ward, with the court within ten days of appointment as guardian;
(C) files Administrative Office of the Courts (AOC) Form 34, Report on the Guardianship of the Person, AOC Form 34a, Report on the Guardianship of Property, or both, with the court. Assistance in completing these annual reports may be obtained from the DDSD case manager or guardianship coordinator. The guardian may also hire an attorney to prepare annual reports for a fee;
(D) has a legal duty to:

(i) know the service recipient, including his or her capabilities, needs, and physical and mental health;
(ii) maintain contact with the service recipient;
(iii) ensure the service recipient is living in the least restrictive environment that meets his or her needs;
(iv) provide necessary consents authorized by the court; and
(v) notify the court if the service recipient's incapacity has ended; and

(E) has limited authority per 30 O.S. § 3-119 and the guardianship order that sets forth the limitation of powers of a guardian by prohibiting the guardian from consenting on behalf of the ward to the withholding or withdrawal of life-sustaining procedures except with specific authorization of the court having jurisdiction over the guardianship proceedings. Authorization must be granted in a separate court order and only at such time when the ward is in need of life‑sustaining treatment.

(2) When performing duties and exercising authority, the guardian:

(A) ensures the interests, rights, and welfare of the ward are protected;
(B) may act independently, if necessary, from provider agency staff and DDSD staff;
(C) encourages the ward to:

(i) participate to the maximum extent possible in all decisions that affect the ward; and
(ii) act on all matters in which the ward is able to do so within the limitations imposed by the court; and

(D) as appropriate, assists the ward to develop or regain, to the maximum extent possible, his or her capacity to meet the essential requirements for health or safety.

(g) Changes in guardianship. The ward, any person interested in the welfare of the ward, or a guardian may make application to the court for:

(1) termination of the guardianship;
(2) removal of a guardian;
(3) imposition of additional restrictions or the removal of existing restrictions; or
(4) a review hearing.

(h) Special guardianships. The Advocacy and Guardianship Program assists service recipients who are in need of a temporary surrogate to obtain consent for non-emergency medical and dental procedures or to protect the service recipient's money, property, or assets at risk of loss or exploitation through a process to establish special guardianship.

(i) Costs and fees. Court costs are not charged for filing guardianship petitions and reports for persons who are applicants for or recipients of Social Security, per 56 O.S. § 192.

(j) Responsibilities of OKDHS Legal Division. If a guardian cannot be found for a resident of NORCE, SORC, or Greer, OKDHS Legal Division has the authority, per 10 O.S. § 1415, to file a petition for the appointment of a guardian ad litem for the service recipient.

(1) Legal Division attorneys do not provide any legal services to any other party or potential party in guardianship cases.
(2) The only legal services provided are to ensure compliance with 10 O.S. § 1415. No other legal services in connection with these guardianships are provided directly or indirectly by OKDHS.

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