When Getting A Guardianship, It’s Very Important You Have Someone Who Knows What They’re Doing.
Video Transcribed: My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for Wirth Law Office in Cherokee County. That’s one thing our firm does is try to tell you a little bit about the law, so you’re a little more informed and you can know what help you actually need.
A lot of times I have clients come in and they’ll say, “Hey, I want to file this or look into it.” By the time they’ve explained everything to me, I’m like, “Well, actually what you want is this other thing.” That happens pretty frequently actually.
One of the things that comes up a lot is Tahlequah guardianships. A guardianship, I think I’ve done a video about them as it relates to deprived, deprived guardianships are usually found in title 10A of the Oklahoma Statutes.
We’re going to be talking about a different form of guardianship right now, specifically a title 30. That just means it’s found in the Statutes under title 30. A title 30 guardianship is what most of your guardianships are going to be filed under. Title 30 includes guardianships for both adults and for children, so it can be filed in either case.
There are certain things you have to do to qualify, certain requirements that have to be met depending on if you’re filing for an adult or a child.
For instance, if you’re filing on a child, one thing I’ve seen done, even by people who went to attorneys who don’t understand Indian law or, in this case, the Indian Child Welfare Act, that they did not give notice to the tribe and that is considered a fatal flaw with a guardianship. It means that years later, someone could come in and try to get it vacated.
That’s one difference between a guardianship and adoption is adoptions are usually permanent. I’ve seen one in… Been practicing for over seven years, when I was a prosecutor, I saw one case where the family came in and the court actually vacated the adoption.
That was extremely rare circumstance. It was done to protect other children, but usually adoptions are going to be considered permanent even when you have a permanent guardianship.
What that means is that you have a guardianship, you’re not coming back into the court for reviews or anything like that. Those can still be vacated at a later date, and they’re not permanent in the way that we use permanent in kind of layman’s terms.
One of the things you need to be aware of is when you’re filing a guardianship, there are all types of requirements to it. You’ve got to prove you can be responsible for this other person.
When you’re talking about an adult, you got to also prove that they either consent to the guardianship or that there’s a reason the court should grant you a guardianship over them.
Most of the time with adults, what you’re seeing is possibly a sibling or other family member is getting a guardianship over a family member that has mental illness and cannot take care of themselves.
Sometimes it’s a family member who is very elderly and they’re doing… You see a lot of scams targeted at both adults with mental illness that can’t take care of themselves and the elderly. As they get older, people try to scam them and take their money, take advantage of them.
It may not even be money. It could be some guy has moved into the upstairs bedroom and won’t leave. It’s just using someone. That’s where you really see guardianships for adults.
For children, you see them a lot of times when you have a family member who… One thing I see all the time, especially in Oklahoma with our pretty high meth and opiate rate, is that you’ll have a family member say, “I’ve got to go into rehabilitation treatment.
I need somebody to take my kids until I can get out.” Or, “I’m worried about DHS coming and trying to take my kids. Can I do a guardianship with you and you watch my kids until I can get better?” Those are some situations you have.
When getting a guardianship, it’s very important you have someone who knows what they’re doing. I can’t stress that enough, especially with children who have… It’s not just children who are enrolled in Native American tribes, it’s children who can be enrolled in a Native American tribe or eligible for enrollment.
If you don’t have an attorney that knows the ins and outs of, especially like I said, with children, ins and outs of the Indian Child Welfare Act or what all you need done in a case, it can lead to severe problems down the road including the guardianship being vacated for errors in it.
That’s not something you want to deal with or see. I’ve seen that happen a couple times and it’s always rough on everyone involved.
If you are thinking about a guardianship, you have either an adult family member or there’s a child involved that you want to talk to a Tahlequah attorney, come on down or give us a call. With COVID, understandable, calls are very welcome.
We can do a low-cost consultation on your issues and maybe see if we can help, see if a guardianship’s actually right for you.
Sometimes you don’t really want a guardianship, you want a power of attorney drafted. Or there may be some situation where you want to do an adoption instead and the parents are in agreement for adoption.
There’s a lot of different variation in the law of what can be done to help you in whatever situation you’re in. If you have questions, please come talk to us.
