«Prepared by Administrative Office of the Courts Oklahoma City, Oklahoma A Handbook for Guardians Index Introduction to Guardianship 2 Types of ...»
The plan must be filed with the petition, submitted to the court at the time of hearing, or filed within two (2) months of the guardian's appointment. A sample form for the proposed plan may be found on page. (30 OS. §3-122) A guardian or limited guardian of the property of the ward serves in a fiduciary capacity to the ward. The ward's property must be safely maintained. The limits on the expenditures by the guardian of the ward's money are set by law. Consultation with an attorney may be necessary before expending any monies belonging to the ward. The court sets limits on the sale of the ward's property. The law also provides that money belonging to a minor, an incapacitated, or a partially incapacitated person, mayonly be invested in certain ways.
A guardian or limited guardian of the property of a ward shall file an inventory of the estate of the ward within two (2) months after appointment as guardian. (30 OS. §§3-122, 4-301) It may be filed with the Plan for Management of the Property of the Ward. The time to file an inventory may be extended bythe court. An inventory isa listing of allof the ward's property. Inventories may be required by the court at any time. The inventory is filed with the clerk of the district court. The judge, the ward, or any interested person may request that the property be appraised.
A guardian or limited guardian of the person or of the property must, at the conclusion of his first year of guardianship, and at least once a year thereafter, file a report on the guardianship of the property. (30 OS. §4-303) This report must include an accounting of any money received by the guardian for the ward, any payment(s) made for the ward by the guardian, any changes of property on the inventory, and any significant change in the physical or mental condition of the ward, or the ward's financial resources. The report shall state the guardian's request for compensation and the guardian's request for compensation for attorney. Additional reports may be required of guardians and limited guardians by the court appointing them.
Unless the court directs, or it is required by the Uniform Veteran's Guardianship Act (72 L/.S.C.
§126.1, et seq.), the guardian of the property of a ward may not have to file an annual accounting or an annual plan if the ward's financial resources or assets, other than the homestead, are worth less than Forty Thousand Dollars ($40,000), if a bond has been posted, or are worth less than Ten Thousand Dollars ($10,000) regardless of whether a bond has been posted and if the guardian or limited guardian of the property is the spouse or a relative of the ward within the fourth degree of consanguinity.
The requirements for an annual report on the guardianship of an incapacitated or partially
incapacitated person are, in brief, as follows:
2. the name and address of the guardian or limited guardian;
3. any significant changes in the capacity of the ward to meet the essential requirements for physical health or safety;
4. the services being provided to the ward and their relationship to the guardianship plan;
5. problems during the reporting period;
6. any significant actions by the guardian during the reporting period;
7. the reasons why the appointment should be continued;
8. the reasons, if any, why no less restrictive alternative environment for the ward is to be considered. (30 OS. §4-305);
The reporting requirements for the guardian of the property are, in brief:
1. the name and place of abode of the ward, and the name and address of the guardian;
2. changes in the capacity of the incapacitated or partially incapacitated ward to manage financial resources and the service being provided for the management of those resources;
3. significant actions by the guardian during the reporting term;
4. problems during the reporting term;
5. reasons why the guardianship should not be terminated or a less restrictive alternative implemented. (30 OS. §4-306) Copies of the annual report are mailed to persons entitled to notice as set out in 30 O.S. §4-307.
These persons have fifteen (15) days after the report is filed to object. The court may hold a hearing on the annual report. (30 OS. §4-307) The court may require a new bond; failure to obtain the bond may result in the guardian's removal.
The duties of the guardian with regard to the administration of the property of the ward are clearly set forth in the statutes. A guardian must settle the accounts and receive the just debts of the ward.
A guardian or limited guardian may execute waivers or consents for the ward as authorized by the court. Limits are set on the type of investments a guardian may make with regard to the ward's property. The court must approve or order the sale of the ward's real or personal estate.
Limitations op t h e Powers op a Guardian Some guardians may fix the abode of the ward within the county. The ward may not be moved outside the county without court approval. (30 OS. §1-120)
A guardian does not have the power to do the following acts:
1. to consent on behalf of the ward to withholding or withdrawal of life-sustaining procedures except with specific court authorization or as authorized by advance directive executed pursuant to sate law;
2. to consent on behalf of the ward to termination of the ward's parental rights;
3. to consent to an abortion, psychosurgery, removal of a bodily organ, performance of any experimental biomedical or behavioral procedure except in an emergency and to preserve the life of the ward and with permission of the court having jurisdiction of the proceeding;
4. to prohibit the marriage or divorce of the ward except with court approval;
5. to consent on behalf of the ward to placement of the ward in a facility or institution absent formal commitment proceedings. (30 OS. §3-119) Guardianship Fees As a guardian, an individual may receive a fee for work performed. The court will set the compensation. Compensation for the collection of the ward's income by a guardian or limited guardian of the property must not exceed seven and one-half percent (7-1/2%) of the income collected. (30 OS. §§4-401 and.3-122). Payment may not be made without court order.
REMOVAL OP A GUARDIAN
A guardian may be removed by the district court:
1. for abuse of fiduciary responsibility;
2. for continued failure to perform his duties;
3. for incapacity to perform his duties;
4. for gross immorality;
5. for having interest adverse to the faithful performance of his duties;
6. if the instrument in which the person was nominated as guardian is judicially determined to be invalid;
7. if a guardian of the property is insolvent;
8. when it is not longerproper that the wardshould be under guardianship. (30 OS. §4Termination op Guardianship If an incapacitated or partially incapacitated person marries, the court will hold a review hearingto determine what changes, if any, need to occur concerning the guardianship. (30 OS. §4-802) Pursuant to law, a guardian's responsibility terminates upon the death of the guardian, conservator or ward, the determination of incapacity of the guardian, the guardian's removal or resignation, the restoration of the capacity of the ward, or the expiration of the term of a special guard's authority.
The court, after notice and hearing, may remove a guardian for cause who has failed for thirty (30) days to make an account or a report after being required to do so. (30 OS. §4-803) A guardian may resign and the court, upon notice, may appoint a successor.
A guardian must account for all actions at the end of the guardianship. A final report and request for final compensation shall be filed within thirty (30) days of the event terminating the guardian's responsibilities. (30 OS. §4-803) The court shall set the final account for hearing on a date not less than fifteen (15) days after the filing of the final report. Notice of the hearing shall be given at least ten (10) days prior to the hearing by first-class mail. (30 OS. §2-101) If the guardianship for an adult, or if it was a conservatorship action, notice must be given as set out in 30 O.S. §§3-110 and 4-803.
Any person receiving notice may appear and file written exceptions to the final account. Upon approval of the final account, the guardian or conservator and his sureties shall be discharged. (30 OS. §4-803) Confidentiality Confidential information filed or submitted to the court under the Oklahoma Guardianship or ConservatorshipAct shall not constitute a publicrecord and shall be sealed by the court. Access to the confidential information shall be strictly controlled. The fact of the existence of a guardianship or conservatorship shall not be considered confidential. (30 O.S. §1-122)
NOMINATION OP A GUARDIAN
Every person eighteen (18) or older who is of sound mind and not acting under duress, menace, fraud or undue influence may nominate a guardian. A form is provided in this booklet for nominating a guardian. (30 OS. §3-102) A person nominated as guardian shall be given preference in the appointment of a guardian. (30 OS. §3-104)
RESTORATION OP CAPACITYAny person judiciallydetermined to be incapacitated, totally or partially, the guardian, any relative or friend of the ward may petition the court for restoration to capacity. Proceeding must be brought in the court having jurisdiction over the guardianship proceeding by filing a verified petition.
A hearing shall be set within thirty (30) days after filing the petition. Notice shall be given as in guardianship proceedings. (30 O.S. §3-116) If the ward's restoration is judicially determined, the guardian must comply with requirements of terminating the guardianship.
Multiple guardians appointed for one ward are liable as if they are sole guardians. They must each post bond unless waived. (30 OS. §4-501) One maygive another co-guardian written authority to act for both. If a ward has more than two guardians, the act of a majority is valid. (30 OS. §4-502) If one guardian dies, the power continues in the survivor until further appointment is made. (30 OS. §4-503) When an account is rendered by two or more joint guardians, the judge of the district court may allow the same upon oath of any of them. (30 OS. §4-304)
The guardian is responsible for the payment of the debts of the ward. (30 OS. §4-701) The guardian must collect all debts owed the ward. (30 OS. §4-702) Settlement of claims or law suits requires approval of the court. Before selling any real property, or making any investment, the guardian must obtain an order from the court. (30 O.S. §§4-705 and 4-708)
Except as otherwise provided by law, money belonging to wards can only be invested:
1. in real estate and first mortgages upon real property which do not exceed fifty percent (50%) of the actual value of the property; or
2. United States Bonds, or any other type of security certificate, or evidence of indebtedness, which is guaranteed by the United States Government, or any authorized agencythereof;
4. bonds of municipal corporation; or
5. Annuities covered by the Oklahoma Life and Health Insurance Guarantee Association which do not exceed Three Hundred Thousand Dollars ($300,000), individually.
6. in accounts in savings and loan associations and credit unions located in the State of Oklahoma; and/or
7. all types of interest-bearing time deposits and certificates of banks, savings and loan associations and credit unions located in the State of Oklahoma, not to exceed the amount insured by the United States Government. (30 O.S. §4-709) A guardian selling real estate may be required to post a bond. (30 O.S. §4-763) Upon termination of a guardianship or removal of a guardian, a final accounting shall be filed within thirty (30) days of the event terminating the guardianship. A hearing shall be set by the court and notice given. Any person receiving notice may file exceptions to the final report. (30 O.S. §4-803) Civil Liability Any guardian who willfully violates the duties or powers assigned by the court shall be liable for actual damages. (30 O.S. §4-901) Conservatorships If a person is unable, by reason of physical disability only, to manage his or her property and voluntarily consents to the establishment of a conservatorship and the appointment of a conservator, a verified petition may be filed in district court. The court shall direct that notice be personally served on the person alleged to be unable to manage his or her property. Notice shall be served on others as directed by the court. (30 O.S. §3-211 A conservator will not be appointed unless the subject of the proceeding consents to the appointment. (30 O.S. §3-212) A conservator is required to post a bond (30 O.S. §3-214) and shall have all the same powers and duties, including the submission of plans and reports, as a guardian. (30 O.S. §3-215) A conservator may be discharged upon application of the ward and with notice to the conservator and to the ward's next of kin as directed by the court. Upon termination of a conservatorship, a conservator shall account to the court as would a guardian. (30 O.S.§3-216)