Each of us has legal rights which collectively allow us self-determination: the ability to control our person and property. We may, for instance, enter into contracts, decide where to live and work, choose or refuse medical treatment, give away possessions, and draft or change a will. Our rights come from the U.S. and Oklahoma Constitutions, Oklahoma and Federal statutes, common law and custom.
As we grow older, our legal rights do not decrease, but there are increasing pressures that threaten our independence. Due to sickness, we may become mentally unable to make some or all choices for ourselves. Even if we are able, other people, out of good motives or bad, may try to make decisions for us. As a general rule, as long as a person, of any age, understands the implications of his actions, he has the right to take those actions, so long as they harm no one and violate no laws. The purpose of guardianship is assistance,
A Guardian is a person appointed by the probate court and given power to make some or all decisions about the care of another person and their property. A person for whom a guardian is appointed is known as a Ward.
Why are guardians appointed?
- Inability to care for self or finances;
- Senility or dementia;
- Organic or chronic brain syndrome;
- Old or advanced age;
- Alzheimer’s disease;
Who usually serves as guardians?
- Children of wards;
- Spouses of wards;
- Siblings of wards;
- Other relatives, including nieces, nephews, grandchildren;
- Public guardians;
What happens upon an appointment of a guardian?
Upon the appointment of a guardian, a ward may lose many rights such as the right to vote, to serve as a juror, to operate a motor vehicle, to be licensed to practice any profession, to contract, to maintain a bank account, or to invest one’s assets. The guardian can be given the power to choose where a ward will live; to consent to medical treatment; to sell the individual’s property; to receive money and property belonging to the ward; and to apply this money toward the ward’s support and care. However, only with specific court approval can the guardian prohibit the individual’s marriage or divorce, consent to removal of a body organ, to allow the performance of experimental biomedical or behavioral experiment, consent to the withholding or withdrawing of life-sustaining medical procedures, consent to termination of parental rights or consent to abortion.
A court case must be instituted for a guardian to be appointed. A family member, a Department of Human Services worker in cases of abuse or neglect, or any person interested in the welfare of the prospective ward may petition the court for appointment of a guardian.
If you are threatened with an unnecessary guardianship, you have the right:
- to object to the guardianship, to the powers of the guardian, and to appointment of a particular person as guardian;
- to be at the hearing and receive notice of the hearing;
- to be represented by a lawyer (the court will appoint a lawyer if you request one or if you wish to contest any aspect of the proceeding and if the court determines it is in your best interest);
- to present evidence in your own behalf; v to cross-examine all witnesses; v to subpoena witnesses on your behalf; v to a closed hearing; v to be evaluated by a physician, psychologist or social worker or other expert (the evaluation will address the individual’s ability to make decisions and to meet the requirements for their health or safety and manage their property);
- to have any person you have previously nominated as your guardian to be appointed by the court if you are found to need a guardian; and
- to have a petitioner prove by evidence that a guardian is needed.
What is the basis for a court appointed guardian?
In order for the court to appoint a guardian, the court must be convinced by evidence presented at the hearing that you are not capable of making informed decisions about your own care or the management of your property. A guardian cannot be appointed just because of your age or because you are physically disabled. For example, a general guardianship of the person is not appropriate merely because a person is wheelchair-bound due to severe arthritis. A limited guardianship may be imposed if a disability affects the individual’s ability in some way to care for himself or manage his property.
Who can be appointed as guardian?
- Any person you have previously nominated.
- Any current guardian appointed for you by a court of another jurisdiction.
- Any person nominated by your former guardian (if your former guardian was your deceased parent, spouse or adult child.)
- Your present spouse.
- An adult child of the individual.
- A parent of the individual.
- A brother or sister of the individual.
- A person whom the individual had been living with for more than 6 months.
What is the scope of a guardian’s power or authority?
Not all guardians have the same powers. If a guardianship is appropriate, the court must tailor the powers of the guardian to the demonstrated need of the ward. A guardian with less than full powers is known as a limited guardian. Sometimes a special guardian is appointed.
Even if a guardian is appointed, a court may allow a ward to control part of his or her property to encourage self-reliance. For instance, a court may allow a ward to maintain a checking account in proper circumstances.
The court will determine whether the individual may appoint agents, contract, grant conveyances or make gifts. The court may also direct that the individual get a monthly allowance to spend at the individual wishes.
A ward can still make a will if he or she is aware of property owned and natural heirs, and understands that the document drafted is a will. The person must not suffer from delusions or serious mental incapacities. The probate judge must witness the will.
A guardian cannot commit a ward to a mental hospital. A person can be involuntarily committed if he or she is mentally ill and dangerous to himself or others. This determination can only be made after a mental health commitment hearing, different from the guardianship hearing.
What are the responsibilities of a guardian?
- Provide for the care and comfort of the ward.
- Take reasonable care of the property of the ward.
- Secure services to help the ward return to self-reliance as soon as possible.
- Shall keep safely the property of the ward.
- Shall manage the property of the ward as a prudent person would manage his own property, not with regard to speculation but with regard to conservation and growth.
- The guardian should be able to return the property at the end of the guardianship in as good of a condition as it was when he or she received it.
Can a guardian be replaced?
A guardian can be replaced. The ward, or any person interested in the ward’s welfare, can petition the court to remove a guardian. The court will remove the guardian and appoint another person if the court finds abuse by the guardian, neglect of duties, incapacity of the guardian, gross immorality, conflict of interest, insolvency, or if the original nomination of guardian was legally defective. A guardianship often lasts until death. But the guardian must report any change in a report to the court annually. The ward, the guardian, or any relative or friend may petition the court to dissolve the guardianship. If the court finds the ward no longer needs a guardian, the court will restore the ward to full legal capacity and remove the guardian