Guardianship Lawyers

Under the Oklahoma Guardianship and Conservatorship Act was enacted to protect the welfare of children and incapacitated adults in Oklahoma. When a person is unable to care for his or her own physical or financial well-being or to make competent decisions about personal, medical, and financial matters, the court may appoint a guardian to oversee the financial assets and to make decisions about the general welfare of that person.

The Guardianship and Conservatorship Act, beginning in 30 O.S. 1-101, defines a guardian as simply "a person appointed by the court to take care of the person or property of another." The person who is placed under the care of a guardian, or over whose property a guardian is appointed, is called a "ward."

No one can be made a guardian without a court order. One cannot simply assume responsibility for a person or his or her property without the legal intervention of the court. In some cases, a person may wish to assume guardianship of a minor or adult because the would-be guardian sees a person he or she cares about making destructive decisions or not receiving adequate care. However, not every potential ward wants to be under guardianship, nor does every potential guardian wish to assume legal powers over the ward for legitimate purposes. Because of this, the court weighs guardianship decisions very carefully, seeking the welfare of the potential ward above all other considerations.

Who Can Be Designated a Ward?

Often, guardianship involves power over the welfare of a minor, but an incapacitated adult may also be placed under guardianship.

Under state law, an "incapacitated person" who may become a ward of a guardian is explicitly defined in 30 O.S. 1-111 as a person aged 18 or older who meets the following criteria:

  1. who is impaired by reason of:
  2. mental illness as defined by Section 1-103 of Title 43A of the Oklahoma Statutes;
  3. mental retardation or developmental disability as defined by Section 1-818.2 of Title 63 of the Oklahoma Statutes;
  4. physical illness or disability;
  5. drug or alcohol dependency as defined by Section 3-403 of Title 43A of the Oklahoma Statutes; or
  6. such other similar cases, and
  7. whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that said person:
  8. lacks the capacity to meet essential requirements for his physical health or safety, or
  9. unable to manage his financial resources

In some cases, a person may be able to handle some of the responsibilities of his or her financial and physical well-being, but not all of them. The Oklahoma Guardianship and Conservatorship Act also defines a "partially incapacitated person." This is a person whose impairment is only such that he or she cannot successfully meet the requirements for physical health and safety nor manage his or her finances without assistance from a limited guardian.

In the case of a minor ward, the Guardianship and Conservatorship Act holds that parents are the natural guardians of their children, and it is not intended to limit parental rights. However, in some cases a parent may not be able to serve as a suitable guardian for his or her own child: addiction, financial difficulty, illness, or incarceration may render a person temporarily or permanently unable to fulfill his or her parental obligations. In such a case, a family member or concerned friend may seek guardianship of the child.

Types of Guardians

Not every situation requires full or permanent guardianship of the ward. The court recognizes the varying degrees of guardianship as follows:

  • General guardian - a person who has court-appointed guardianship over a person and the property of the ward
  • Limited guardian - a person who has limited powers over the ward and/or the property of the ward
  • Special guardian - an emergency guardian appointed immediate guardianship in high-risk situations; special guardianship is temporary and does not typically exceed 30 days. During this time, an emergency guardian may work to become the court-appointed general guardian of the ward

Whether a person is granted special guardianship, general guardianship, or limited guardianship, he or she will have specific obligations which must be fulfilled in order to maintain guardianship over the ward.

Who Can Be a Guardian?

Oklahoma state law lists a specific order of preference in appointing guardianship. Parents are considered to be the natural guardians of their children, but this is not always the optimal situation for children, nor is it always feasible in guardianship of adults. Children aged 14 or older have the right to nominate their own guardians, and the court's order of preference follows:

  • the person(s) nominated by the subject of the guardianship;
  • the current guardian or limited guardian appointed by a court in another jurisdiction where the incapacitated or partially incapacitated person resides;
  • the person nominated by the will or other writing of a deceased parent, spouse or adult child that was serving as the guardian or limited guardian of the subject of the proceeding;
  • the spouse of the subject of the proceeding;
  • an adult child;
  • a parent;
  • a sibling;
  • a person, approved by the court, with whom the subject of the guardianship was living for more than six (6) months.

Guardianship of a minor child is often granted to grandparents, aunts, uncles, older siblings, and other adults who are blood relatives of the child.

Responsibilities of Guardians

Assuming responsibility for the welfare of another person is a tremendous responsibility, and the courts do not appoint someone as a guardian without specifically outlining the court-ordered responsibilities that come with guardianship.

Responsibilities of a guardian include:

  • Filing an inventory of the estate of the ward
  • Providing for the care and control of the ward
  • Knowing the needs, opportunities, and health of the ward
  • Assuring that the ward has adequate housing, nutrition, and other basic necessities
  • Providing the court with a Plan for the Care and Treatment of the ward
  • Filing the required reports detailing the activities of the guardian on behalf of the ward

Guardianship may be terminated at any time. Removal of guardianship may occur if the need for such relationship no longer exists, such as when a minor reaches the age of 18 or if an incapacitated adult is no longer impaired by illness, addiction, or mental health issues. However, a guardian may be removed if he or she fails to serve as an adequate guardian for the ward:

  • abuse of financial responsibility
  • failure to perform duties
  • gross immorality
  • having interests adverse to the ward
  • financial insolvency of the guardian

Guardianship is never assumed. The appointment of guardianship is a legal process whereby the prospective guardian must prove that the need for guardianship of the ward exists and that they are physically, financially, and emotionally able to provide for the well-being of the minor child or incapacitated adult.

For help and legal representation in guardianship matters, call to speak with a guardianship lawyer at the Law Firm of Oklahoma.

625 NW 13th Street
Oklahoma City
(405) 608-4990
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