SECTION 340:100-3-5. Advocacy and guardianship

(a)   Purpose. Developmental Disabilities Services (DDS) supports each service recipient's right to self-determination.

(1)   An advocate assists service recipients to represent his or her own interests.

(2)   Although a service recipient may have other advocates, only a guardian may act on behalf of his or her ward, per Oklahoma Administrative Code (OAC) 340:100-1-2 to the extent authorized in the guardianship order and, the Oklahoma Guardianship and Conservatorship Act, per Section 1-101 et seq. of Title 30 of the Oklahoma Statutes (30 O.S. §§ 1-101 et seq.).

(3)   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.

(b)   Capacity to give informed consent. Service recipients, 18 years of age 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;

(2)   may be adjudicated incapacitated in one area while being fully capable 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 exploitation and maltreatment; and

(B)   completed for each:

(i)   adult and minor attaining the age of 17 1/2 years, who receives residential services through the Community Waiver or Homeward Bound Waiver, when recommended by his or her Personal Support Team (Team); and

(ii)   child in Oklahoma Department of Human Services (OKDHS) custody who receives DDSD services upon reaching 16 years of age, per OAC 340:75-8-39; and

(iii)   Robert M. Greer Center residents.

(2)   The Team meets 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 when they cannot attend.

(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 DDS case manager completes a capacity assessment using Form 06MP032E; 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 Plan. If this review indicates needs in the area of advocacy, the DDSD case manager offers a capacity assessment.

(d)   Assessment Team recommendations. DDS supports the use of less restrictive alternatives to guardianship.

(1)   The Team recommends guardianship after they consider and rule 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)   Plan modification 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)   When Form 06MP032E indicates a guardian is needed, the 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, per 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, per 30 O.S. § 3-103;

(iv)   a service recipient's spouse;

(v)   a service recipient's adult child;

(vi)   a service recipient's parent;

(vii)   a service recipient's sibling;

(viii)   a person the service recipient has been living with 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 is not appointed guardian of such service recipient unless the provider is the service recipient's spouse, mother, father, sibling, adult child, aunt, uncle, grandparent, or adult grandchild; or

(ix)   other relatives of the service recipient, such as a niece, nephew, or cousin.

(B)   When 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 Team and court any potential conflict of interest that may preclude acting in the proposed ward's best interest.

(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)   Guardian responsibilities.

(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 10-calendar days of appointment as guardian;

(C)   files Administrative Office of the Courts (AOC) Form 34, Report on the Guardianship of the Person; or 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 DDS case manager or guardianship coordinator. The guardian may hire an attorney to prepare annual reports for a fee;

(D)   has a legal duty to:

(i)   know the service recipient, including awareness of 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 when the service recipient's incapacity ends; 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, 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 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 from provider agency staff and DDS 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 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. DDS assists in establishing special guardianships when consent is needed for 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.

[Source: Amended at 24 Ok Reg 1046, eff 5-11-07; Amended at 26 Ok Reg 922, eff 5-15-09; Amended at 28 Ok Reg 897, eff 6-1-11; Amended at 36 Ok Reg 1880, eff 9-16-19]