WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOWABOUT
GUARDIANSHIP
By David Sturdivant
December 1, 2003
GENERAL OVERVIEW OF GUARDIANSHIP(S)
It is a widely accepted principle that an adult individual is capable of making decisions on
their own behalf; however, sometimes there comes a point for some persons when they are no
longer able to do so, and they must have someone else make decisions on their behalf. The
person charged with the responsibility of substitute decision maker is called the “guardian” and
the person for whom the decisions are being made is referred to as the “ward”. The
circumstances around which a person loses the ability to make decisions on their own behalf vary
greatly, the one constant however, is that the ward has become legally incompetent in the eyes of
the court which has been charged with determining the capacity of the ward.
The general test for determining whether an individual lacks the required legal
competency to make decisions on their own behalf is: does that person have the capacity to make
responsible decisions? If the answer is yes, then the court must allow that person to do so, even if
the decisions seem unreasonable in the eyes of a reasonably prudent individual. If the answer is
no and the court feels that an individual is no longer capable of making responsible decisions, the
court has the duty to appoint a guardian that will assume the decision making role for the
incapacitated individual.
It is a generally accepted belief that as individuals increase in age, they decrease in the
required mental capacities for making prudent and responsible decisions. Because of the
1
correlation between aging and mental incapacity, many senior citizens are seen as incapacitated
when, in fact, they may have the legal mental capacity required by the court when determining
whether someone needs a guardian. Similar to a criminal proceeding where a defendant is
innocent until proven guilty, a senior is competent until the court determines that they lack the
legal capacity to make decisions on their behalf. When the court does make the final
determination that an individual lacks capacity, they have one duty, to appoint a guardian. To
care for persons unable to care for themselves, the state can appoint a guardian, often a relative.1
The statutes in Oklahoma that deal with adult guardianship are (1) Title 30, Guardian and
Ward, Article III, which covers all the issues that deal with the appointment and duties of a
guardian for adults and (2) Title 43A, section 100-101 through 100-111 which authorizes
Oklahoma’s Adult Protective Services.2
GUARDIANSHIP PROCESS AND THE RIGHTS OF THE ALLEGEDLY INCAPACITATED
In Oklahoma “Any person interested in the welfare of a person believed to be an
incapacitated person or partially incapacitated person may file a petition alleging that such person
is an incapacitated or partially incapacitated person, and request the appointment of a guardian.”3
As well as requesting that the court determine the capacity of a person the petition must also
contain the name of all affected individuals, the nature and degree of the alleged incapacity, the
relief that is being requested, and the estimated value of all intangible personal property of the
1
Mark D. Andrews. The Elderly in Guardianship: A Crisis of Constitutional Proportions. 5 ELDER L.J. 75, 79
(1997).
2
Available at, <www.okdhs.org/APS/fact/authority.html>.
3
OKLA. STAT. tit. 30 § 3-101(A) (2002).
2
proposed ward.4 Once a petition has been filed with the court, a hearing date shall be set, which
shall be no more that thirty (30) days after the filing of the petition, and the attorney for the
subject of the petition shall be notified of the hearing.5 All relevant forms for the filing and
notification processes in the state of Oklahoma may be found at the following website:
http://www.oscn.net/static/forms/AOCforms.asp.
The person requesting the guardianship may be the potential ward; it makes no difference
to the court who makes the initial petition. If an individual fears that she may become
incapacitated at a later date, she has the power to make a nomination for her future guardian
which is binding on any court having jurisdiction.6 In the event the person nominated is unable,
unwilling, or cannot qualify to so serve, it is up to the court to make that determination and
continue with the proceeding as if the nomination had never been made and proceed to alternate
guardians that were named in the nomination.7
When a person has been admitted before the court as allegedly being incapacitated they
still have rights, and the ability to fight for the preservation of their mental standing.8 The first
right that the potential ward has is the right to be notified of the hearing that is going to be held
on her behalf and to be present at that hearing; the court shall cause notice to be made not only on
the subject of the proceeding but also the spouse, attorney and adult children, if any, of the
4
Id.
OKLA. STAT. tit. 30 § 3-110 (2002).
6
OKLA. STAT. tit. 30 § 3-102(A) (2002).
7
OKLA. STAT. tit. 30 § 3-105 (2002).
8
OKLA. STAT. tit. 30 § 3-106 (2002).
5
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subject of the proceeding.9 In addition to the right to be notified of, and be present, at the
proceeding, the potential ward will have the opportunity to present evidence, compel witnesses to
testify, and cross-examine any witnesses that may be presented by the opposing side. The person
alleged to be incapacitated also has the right to counsel at any point during the hearing, and the
court has the discretion to appoint counsel on behalf of the potential ward at any time when it
determines it necessary.
After a petition has been filed with the court, on its own motion or at the request of one of
the parties to the proceeding, the court may require that the ward to undergo an evaluation to
determine the ward’s capacity if that is a material issue.10 This evaluation may be made by a
physician, a psychologist or a social worker with a graduate degree in social work and field
training or experience working with the incapacitated.11 This evaluation must be signed and
submitted to the court prior to the hearing at which the court shall consider the report. The report
will include an evaluation of all areas tested by the examiner and an opinion regarding the
probability that the incapacity, if any, will worsen or improve
Once the court has heard all of the evidence pertaining to the capacity of the subject of
the hearing, it will make a decision as to whether or not a guardian is necessary. If it is
determined that a guardian is needed, the court shall determine:
1. When a general or limited guardian of the person of the subject of the proceeding
is requested, the essential requirements for the health and safety of the subject of
the proceeding and the skills and knowledge necessary to meet those
requirements;
9
Id.
OKLA. STAT. tit. 30 § 3-108 (2002).
11
Id.
10
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2. When a general or limited guardian of the property of the subject of the
proceeding is requested, the type and amount of the financial resources of the
subject of the proceeding, the essential requirements for managing the financial
resources, and the skills and knowledge necessary to manage the financial
resources;
3. The nature and extent of the incapacity of the subject of the proceeding, if any;
and
4. Whether by clear and convincing evidence the subject of the proceeding is an
incapacitated or partially incapacitated person.
If after a full hearing and examination upon such petition, the court finds by clear and
convincing evidence that the subject of the proceeding is an incapacitated or partially
incapacitated person; the court shall appoint a guardian or limited guardian and shall
issue an order appointing a guardian. The court shall explain on the record the facts and
reasons supporting the decision not to impose any less restrictive alternatives.12
The final order made by the court shall set forth the determination made by the court at the
hearing, the name and address of the individual appointed to serve at the guardian, the specific
limitations imposed upon the ward, and when considered necessary, the date of a review hearing.
TYPES OF GUARDIANSHIPS IN OKLAHOMA
Oklahoma defines a guardian as a person appointed by the court to take care of the person
or property of another.13 Consistent with that definition, a person over whom a guardian is
appointed and a person over whose property a guardian is appointed is called a ward.14 In
Oklahoma there are three (3) types of guardianships that are available to the court: 1) General
12
OKLA. STAT. tit. 30 § 3-111 (2002).
OKLA. STAT. tit. 30 § 1-105 (2002).
14
OKLA. STAT. tit. 30 § 1-106 (2002).
13
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Guardianship, 2) Limited Guardianship, or 3) Special Guardianship.15 A general guardian is a
guardian of the person or of all the property of the ward within this state or of both such person
and property.16 A limited guardian is a person authorized by the court to exercise limited powers
over the person of the ward, or over property of the ward within this state, or over both such
person and property.17
GUARDIANSHIPS AND LIMITED GUARDIANSHIPS
In appointing a guardian or limited guardian, the court is guided by the Oklahoma
Guardianship and Conservatorship Act as far as the order in which persons are to be considered
and then assigned. The act itself dictates that the first such individual to be considered is the
individual nominated by the subject of the proceeding; the second person to be considered is the
current guardian recognized by the appropriate court of any other jurisdiction in which the
incapacitated person resides; the third to be considered is the individual nominated by the will or
other writing of the deceased parent or spouse that has been serving as the guardian; the fourth is
the spouse of the subject of the proceeding; fifth an adult child of the subject; sixth a parent of
the subject; seventh a sibling of the subject; and finally eighth, any person approved by the court
that the subject has been living with for six (6) months prior to the filing of the petition.18 Section
314 of the act covers the assignment of the powers to a limited guardianship and says that a court
15
OKLA. STAT. tit. 30 § 1-108 (2002).
OKLA. STAT. tit. 30 § 1-109(A) (2002).
17
OKLA. STAT. tit. 30 § 1-109(B) (2002).
18
OKLA. STAT. tit. 30 § 3-104 (2002).
16
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may assign to a limited guardian “any portion of the powers and duties of a general
guardian…except the power to take custody of the person of the ward.”19
SPECIAL GUARDIANSHIPS
A special guardianship is a type of guardianship that only occurs in special circumstances
when the health or safety or the financial resources of the subject will be seriously impaired and
no other person appears to have authority to act in given the said circumstances or the appointed
guardian is unable to act. Special guardians are regulated under Okla. Stat. Tit. 30 § 3-115 (2002)
and are limited in that the court shall grant the special guardian only those powers necessary to
act with respect to the particular emergency, as determined by the court.20 The appointment of a
special guardian is in effect for thirty (30) days after the effective date or until the appointment of
a guardian, whichever is less.21
LEGAL RESTORATION OF CAPACITY
Once a person has been determined by the court to be legally incapacitated she or
someone on her behalf may, at any time, again petition the court to re-determine her legal
capacity in accordance with section 3-116:
19
OKLA. STAT. tit. 30 § 3-114(A) (2002).
OKLA. STAT. tit. 30 § 3-115(E) (2002).
21
OKLA. STAT. tit. 30 § 3-112 (2002).
20
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A. Any person who has been judicially determined to be an incapacitated or partially
incapacitated person, the guardian or limited guardian, any relative of the ward or
any friend of the ward may apply by petition to the district court of the county in
which such person was declared incapacitated or partially incapacitated, to have
the fact of the ward's restoration to capacity judicially determined. The petition
shall be verified, and shall state that such person is no longer incapacitated or
partially incapacitated.
B. Upon receiving the petition, the court shall appoint a day for the hearing. Such
hearing shall be set within thirty (30) days after the date of the filing of the
petition. The court shall cause notice to be served as provided by Section 3-110 of
this title and to the attorney of the subject of the proceeding, if any, and if known
to the petitioner. At the hearing, the guardian or relative of the petitioner, and in
the discretion of the court, any other person, may contest the right of the petitioner
to the relief demanded. Witnesses may be required to appear and testify, as in all
other civil matters, and may be called and examined by the judge on his own
motion. If it is found that the petitioner is no longer incapacitated or partially
incapacitated and capable of taking care of himself or his property, or both, his
restoration to capacity shall be adjudged, and the guardianship of such person
shall cease.22
The alternative way to regain capacity in Oklahoma is if the guardian appointed by the court is
discharged by the final order of the court having jurisdiction, and no other person is appointed as
guardian for the ward in said jurisdiction.23
DUTIES AND POWERS OF A GUARDIAN
The duties and powers of a guardian are closely related to not only the type of
guardianship but also with the nature of the guardianship and any specific mandates given by the
court. The general role of a guardian is to perform the plan appointed by the court for the
22
23
OKLA. STAT. tit. 30 § 3-116 (2002).
OKLA. STAT. tit. 30 § 3-117 (2002).
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supervision of the ward diligently and in good faith. 24 Specifically, a guardian of an
incapacitated person shall:
A. Become or remain sufficiently acquainted with the ward and maintain sufficient
contact with the ward to know of the capacities, limitations, needs, opportunities,
and physical and mental health of the ward;
B. Assure that the ward has a place of abode in the least restrictive, most normal
setting consistent with the requirements for his health or safety; and
C. Provide any required consents or approvals on behalf of the ward as authorized by
the court.25
This final duty of the guardian is to file a petition for the reassertion of capacity on behalf of the
ward if it is determined by the guardian that the ward has a legitimate opportunity to regain
his/her legal capacity in the eyes of the court.26
Limitations imposed on a guardian are the last line of defense for a ward, as there is no
system that rigorously checks up on the activities of all guardians in the state. In essence a
guardian shall “have no powers except as provided by the Oklahoma Statutes or given to such
guardian in the orders in the guardianship proceeding.”27 Specifically enumerated prohibitions in
the guardian/ward relationship are those which would give the guardian the right to withhold or
withdrawal life sustaining procedures [except 1) with the specific authorization of the court, 2) as
authorized by an advance directive or, 3) as authorized by a consent not to resuscitate form].28
Other limitations not pertaining to the right to life are discussed in section 3-119(A)(2)-(5).
24
OKLA. STAT. tit. 30 § 3-118 (2002).
OKLA. STAT. tit. 30 § 3-118(a)-(c) (2002).
26
OKLA. STAT. tit. 30 § 3-118(C) (2002).
27
OKLA. STAT. tit. 30 § 3-119 (2002).
28
Id.
25
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CONCLUSION
In Oklahoma guardianship is used as a protective measure to safeguard the person and
property of a ward when they become either partially or completely incapacitated. The process
begins when someone files a petition asking the court to determine the capacity of an individual
and ends when the court determines that the ward has regained their capacity (legally defined).
There are three different types of guardianship available to the court through the Oklahoma
Guardianship and Conservatorship Act: 1) General Guardianship, 2) Limited Guardianship, or 3)
Special Guardianship. Each of the types of guardianship are appropriate in different situations
and will be used accordingly by the court.
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HTTP://ASPE.OS.DHHS.GOV/POVERTY/03POVERTY.HTMAPPENDIX
NOMINATION OF GUARDIAN BY AN ADULT
I,
(Name)
, being of sound mind and not acting under any duress, menace, fraud, or other undue
influence do hereby nominate (Name, Current Residence, and relationship, if any, of the nominee) to serve as the
guardian of my (person, property, both) in the event that after the date of this instrument I become incapacitated.
Executed at
(City, State)
On this
day of
, 20 .
Signature
NOTICE OF HEARING
IN THE DISTRICT COURT OF
COUNTY
STATE OF OKLAHOMA
IN THE MATTER OF THE
GUARDIANSHIP OF
)
)
)
P-
NOTICE OF HEARING
TO:
SERVICE ADDRESS:
You are hereby notified that a petition has been filed alleging that you are an
person and are incapable of
caring for yourself,
incapacitated,
partially incapacitated
managing your property. The petition requests that a
limited guardian be appointed by the court to make decisions for you regarding
yourself,
guardian,
your property. A copy of
the petition is attached.
The hearing on the petition will be held on
.
Date, Time, and Place of Hearing
At the hearing a
guardian,
limited guardian may be appointed for your
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person,
property. The judge will
explain to you the nature, purpose and effect of the proceedings.
You have the right to attend the hearing. You may confront and cross-examine all witnesses and present your own witnesses.
You have the right to request that your hearing be closed to the public. You may request that an expert be appointed to
examine you and if the judge believes that an examination is necessary, the judge will order an evaluation to be done.
You have the right to hire an attorney of your choice to represent you. If you do not have an attorney and you wish to be
represented by an attorney at the hearing, the court will appoint one for you. You may request the appointment of an attorney
orally or in writing prior to the hearing or at the hearing. If you are able, you will be required to pay the cost of an attorney
appointed by the court.
Judge of the District Court
AFFIDAVIT OF SERVICE
, being duly sworn, deposes and states: That I served the foregoing Notice and Petition on
by personally delivering to him/her a copy of said Notice and Petition in
address on the
day of
, 19
.
Address:
Signature
Subscribed and sworn to before me this
day of
, 19
Notary Public/Court Clerk/Judge
12
County at the following