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«Prepared by Administrative Office of the Courts Oklahoma City, Oklahoma A Handbook for Guardians Index Introduction to Guardianship 2 Types of ...»

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A Handbook for Guardians

Prepared by

Administrative Office of the Courts

Oklahoma City, Oklahoma

A Handbook for Guardians

Index

Introduction to Guardianship 2

Types of Guardianships 2

Who Is Governed By the Oklahoma

Guardianship and Conservatorship Act 4

Incapacity 4

Guardianship Proceedings 5

Who May Be Appointed As a Guardian 6

A HANDBOOK FOR GUARDIANS

This handbook is published pursuant to the guardianship laws of Oklahoma. It is designed to provide information about the laws and procedures concerning guardianship and conservatorships.

It includes a summary of the duties of guardians and conservators, such as legal notices, time tables, and required court approvals.

Penalties may be assessed against a guardian or conservator for failure to comply with the requirements of the law or orders of the court. Accountability is important not only to the court, but also to the ward.

This handbook has been provided as a reference guide only. It is not intended to answer all questions on guardianship. The handbook is not designed to substitute for the advice of the guardian's own attorney concerning the responsibilities, duties, authority or liabilities of service as a guardian. A guardian may seek the advice of an attorney at his or her own expense. If a guardian cannot afford an attorney the guardian maycontact Legal Aid of Eastern or Western Oklahoma.

The Court and its staff, as well as the Court Clerk's office and its staff are elected public servants.

However, the rules and laws governing the contact of these individuals prohibit them from providing legal advice or a specific case. They cannot provide legal advice on how the court procedures should be applied in a specific case. It is improper for the judge or his/her staff to speak with the guardian about a specificcase without all interested parties being present.

Introduction t o Guardianship Appointment as a guardian brings with it many responsibilities and duties. The precise nature of a guardian's duties will be determined by the judge and by the law. A guardian will perform duties under the direction and supervision of the court and will be required to account to the court for any action taken as a guardian. A guardian will be directed by the court to take certain actions as guardian and to prepare reports for the court.

The Oklahoma Legislature enacted the Guardianship and Conservatorship Act to protect the welfare of all citizens of the state and to protect the financial resources and the physical well-being of minors, partially incapacitated and incapacitated persons.

The legislature has created different types of guardianships. Statutes governing guardianships may be found beginning at Title 30 of the Oklahoma Statues thereinafter referred to as "O.S.", Section 1-101. Relative Guardianship of Minors has certain special requirements and these will be covered in a separate handbook. All statutes mentioned in the Handbook may be found at.

A guardianship may be general, limited, or special. A general guardian may be a guardian of the person of the ward, a guardian of the property of the ward, or both. A limited guardian is a person authorized by the court to exercise limited powers over the person of the ward, the Oklahoma property of the ward, or both. A special guardian may be appointed to meet the emergency needs of a ward.

Types op Guardianships A guardianship is a person appointed by the court to take care of the person or property of another. (30 OS. §1405)

Other useful terms are:

Guardian - A person appointed as general or limited guardian of the person, and/or general or limited guardian of property, or as a special guardian. It does not include "guardian ad litem." (30 OS. §1106) Ward - A person over whom a guardian is appointed and a person over whose property a guardian or conservator is appointed.

General Guardian - A guardian of the person or of all the property of the ward within this state or of both person and property. (30 OS. §1-109) Limited Guardian - A person authorized by the court to exercise limited powers over the person of the ward, or over the property of the ward within the state or of both person and property. (30 OS. §1-109) Special Guardian - A guardian appointed for an emergency purpose, generally not to exceed thirty (30) days. (30 OS. §3-115) Guardian Ad Litem - A person appointed by the court to assist in making decisions. (30 OS. §1Guardianship Plan - The plan for the care and treatment of a ward or for the management of the ward's financial resources, or both. (30 OS. §1-111) Minor - A person under eighteen (18)years of age. (30 OS. §1-111) Additional definitions may be found at Title 30 of the Oklahoma Statutes, Section 1-111.

Estate - The property of the person subject to the guardianship proceeding. (30 OS. §1-111) Guardianship Proceeding - A proceeding for the appointment of a guardian or for other orders regarding the condition, care or treatment of or the management of the financial resources of a ward. (30O.S.§l-lll) Who is Governed by t h e Oklahoma Guardianship and Conservatorship Act

The Guardianship Act applies to:

1. Minors in Oklahoma

2. Incapacitated and partly incapacitated persons

3. Property in Oklahoma belonging to a minor or incapacitated person who does not live in Oklahoma, and,





4. Property coming into the control of a guardian who is subject to the laws of Oklahoma.

(30 OS. §1-112) No person, whether a parent or nonparent, has any power as a guardian unless so appointed by the court. The Oklahoma Guardianship and Conservatorship Act shall not be construed to limit the parental rights of parents as the natural guardians of their children.

Incapacity

An incapacitated person is defined by the statutes as "a person eighteen (18) years of age or older:

–  –  –

b. 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:

1. lacks the capacity to meet essential requirements for his physical health or safety, or

2. unable to manage his financial resources.

A partially incapacitated person is defined as "an incapacitated person whose impairment is only to the extent that without the assistance of a limited guardianship person is unable

to:

1. meet the essential requirements for his physical health or safety, or

2. manage all of his financial resources or to engage in all of the activities necessary for the effective management of his financial resources.

A finding that an individual is partially incapacitated shall not constitute a finding of legal incompetence. A partially incapacitated person shall be legally competent in all areas other than the area or areas specified by the court in its dispositional or subsequent orders. Such person shall retain all legal rights and abilities other than those expressly limited or curtailed in said orders." (30 OS. §1-111)

Guardianship Proceedings

A guardianship proceeding will usually be filed in the district court of the county where the minor, the incapacitated or the partially incapacitated person resides. If the proposed guardian is a member of the minor's or incapacitated person's family, the guardianship proceeding may take place in the district court of the county where the proposed guardian lives. (30 OS. §1-115) In all cases, the first step in a guardianship is the filing of a written petition. Any person interested in the welfare of a person believed to be incapacitated or partially incapacitated may file a verified petition alleging the incapacitation and requesting the appointment of a guardian for the potential ward.

The procedures for the appointment of a guardian for a minor (a child under the age of eighteen (18) years) and the appointment of a guardian for an incapacitated person differ. A guardian may be appointed for a minor after a hearing on a petition filed with the district court. (30 OS. §2-101) If the minor is at least fourteen (14) years of age, he or she will be given notice of the hearing. A minor of fourteen (14), or a minor upon reaching the age of fourteen (14), may nominate his or her own guardian. (30 OS. §§2-103 and 2-104) Such nomination must be approved by the court.

Special procedures may be available for the management of the estate of a ward that does not exceed Ten Thousand Dollars ($10,000). If this applies in your situation, please consult a lawyer.

(30 OS. §2-116)

Who May Be Appointed As a Guardian

The statutes relating to guardianship set forth a list of persons who may serve as guardians and an order of priority for appointment by the court. (30 OS. §3-104) A guardian or limited guardian is often a spouse, child or other relative of the potential ward. After the petition is filed, notice must be given to a statutorily set list of persons of the time and place of the hearing. The subject of the proceeding must always be given notice. The notice requirements are set out at page of this handbook. A brief list of those who may be appointed as a guardian, with priority of appointment,

are as follows:

1. the person(s) nominated by the subject of the guardianship;

2. the current guardian or limited guardian appointed by a court in another jurisdiction where the incapacitated or partially incapacitated person resides;

3. 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;

4. the spouce of the subject of the proceeding;

–  –  –

LEGAL REPRESENTATION

The person who is the subject of the proceeding may hire an attorney or the court may appoint a lawyer for the person who is the subject of the petition. (30 O.S. §3-107) The court may, if it is in the best interest of the ward, have the prospective ward evaluated by a mental health professional or other expert. (30 OS. §3-108) The cost of court-appointed legal representation or evaluation may be charged against the ward's estate if sufficient funds are available. (30 OS. §3-107) At the court hearing on the petition, which shall be no more than thirty (30) days after the filing of

the petition, the court may find:

1. that the subject of the petition does not need a guardian; or

2. that the subject of the petition does need a general guardian of the person of the ward;

3. that the subject of the petition needs a guardian of the property of the ward;

4. that the subject of the petition is a partially incapacitated person and needs a limited guardian of the person and a limited or general guardian of the property of the ward.

(30 OS. §3-111) The powers of a limited guardian are assigned by the court. A limited guardian of the person may not take custody of the person of the ward.

The court may establish specific limitations on the legal activities of a ward, including, but not limited to, determining whether the ward retains sufficient capacity to vote, to serve as a juror, to drive, to be licensed or continue to practice any profession, to make personal medical decisions, to appoint an agent, to enter into contracts, to grant conveyances, or to make gifts of property. (30 OS. §3-113) A special guardian may be appointed if imminent danger to the health or safety of the ward exists, or if the ward's property will be seriously damaged or dissipated. If notice is required, a time for hearing will be set within seventy-two (72) hours. Seventy-two (72) hours notice must be given and personally served upon the subject, subject's attorney, subject's spouse and at least one other adult relative. (30 OS. §3-115) A guardian will usually be required to post a bond with the court before serving as a guardian. If the value of the ward's estate and the yearly income of the ward is not more than Forty Thousand Dollars ($40,000), and the guardian is a parent, spouse, brother, sister, grandparent, child or grandchild of the ward, bond maybe waived. The court alone maywaive a bond. (30 OS. §4-201) In general, all the powers and duties of the guardian are set forth in the order of the court creating the guardianship. If a guardian is at all uncertain as to whether a specific act would be legal or proper, an attorney should be consulted.

RESPONSIBILITIES OP A GUARDIAN

A guardian or limited guardian of the person is responsible for the care and control of the ward. A guardian must perform in good faith and diligently any specific duties and powers assigned by the

court. A Guardian shall:

1. become or remain sufficiently acquainted with the ward to maintain contact and to know capacities, limitations, needs, opportunities and health of the ward;

2. assure that the ward has a place to live which is least restrictive and most normal for his or her health and safety;

3. provide required consents or approvals as authorized by the court. (30 OS. §3-118) A guardian or limited guardian of the person of the ward, may file a Proposed Plan for the Care and Treatment of a Ward with the petition, submit one to the court at the time of hearing, or file the plan with the court within ten (10) days after appointment. (30 OS. §3-120) The court may extend the time for filing the plan for not more than thirty (30) days. The court may approve a plan acceptable to the court without notice to all persons involved and without a hearing. The court may order the modification of the plan at a review hearing. Sample forms are found on page. In short, the plan must list the services necessary for the physical health and safety of the ward, the method by which services will be obtained, the manner in which the guardian and ward will share the decision-making authority, and suchother services as are necessary to assist in meeting all needs of the ward.

If you are a guardian of the person of the ward, the courtmay also authorize proceedings to compel the performance by a third person of his duty to support the ward or to pay money for the welfare of the ward. This is not an authorized activity if a guardian of the property or conservator for the estate of the ward has been appointed. A guardian or limited guardian of the person may, if authorized by the court, consent to certain necessary medical care for the wardwithout liability. (A guardian will be liable for this consent only as a parent would be liable for making the same consent for a child.) A guardian may not consent to certain medical procedures unless an emergency exists and the life of the ward must be saved. An attorney should be consulted if this situation occurs.

A guardian or limited guardian of the property of an incapacitated or partially incapacitated person must file with the court, for approval, a document called a Proposed Plan for the Management of

the Financial Resources of the Ward. The plan must contain:

1. the services necessary to manage the property of the ward placed under the control of the guardian or limited guardian;

2. the method for obtaining the services;

3. the manner in which the guardian(s) of the property and the guardian(s) of the person will make decisions and share in the decision-making authority;

4. the services necessary to assist in the management of the property to fulfill the needs of the ward and the duties of the guardian or limited guardian.



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