Guardianship matters are often complex legal matters that become more complex when there are disagreements over who should serve as the guardian. A judge will determine what is in the best interest of the individual who may need a guardianship to protect and take care of them self. Having experienced attorneys who understand the Oklahoma guardianship laws is imperative when establishing the guardianship for a minor child or adult.
At Ritchie, Rock, McBride & Atwood Law Firm we lead you through the complex and emotional decision to establish guardianship over your loved one. If you are considering seeking guardianship over and adult or child, please contact our firm to schedule a free consultation so we can answer any of the questions or concerns you have about this legal process.
What is a Guardianship?
Guardianship, also, referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
Who Qualifies for a Guardianship?
Legal Guardianship may be requested by a family member or non-family member to be a Guardian of a minor child or an incapacitated adult.
Duties of Guardian
A good guardian will take into account the wishes and desires of the person under guardianship when making decisions about the residence, medical treatments, and end-of-life decisions. The courts will remove only those rights that the proposed person under guardianship is incapable of handling.
When the courts appoint a guardian, the following rights of the person under guardianship may be removed. These rights may include the right to:
- Determine residence.
- Consent to medical treatment.
- Make end-of-life decisions.
- Possess a driver’s license.
- Manage, buy, or sell property.
- Own or possess a firearm or weapon.
- Contract or file lawsuits.
Process and Procedure
Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. They include:
- Notice to the individual of all proceedings.
- Representation of the individual by counsel.
- Attendance of the individual at all hearings/court proceedings.
- Ability of the individual to compel, confront and cross examine all witnesses.
- Allowance of the individual to present evidence.
- Appeal of the individual to the determination of the court.
- Presentation of a clear and convincing standard of proof.
- The right of the individual to a jury trial.
Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the disability lives. In any type of guardianship, the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.
Guardianship of the Person
When the court appoints a guardian of the person, the guardian may have the following responsibilities:
- Determine and monitor residence.
- Consent to and monitor medical treatment.
- Consent and monitor non-medical services such as education and counseling.
- Consent and release of confidential information.
- Make end-of-life decisions.
- Act as representative payee.
- Maximize independence in least restrictive manner.
- Report to the court about the guardianship status at least annually.
Guardianship of the Estate or Property
“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:
- Marshall and protect assets.
- Obtain appraisals of property.
- Protect property and assets from loss.
- Receive income for the estate.
- Make appropriate disbursements.
- Obtain court approval prior to selling any asset.
- Report to the court or estate status.
Length of a Guardianship
The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process. It is true that in many instances once a guardianship has been initiated by a court, it is in place until the incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship, and alert the court to a potential restoration of some or all of the incapacitated person’s rights.
Firm’s Primary Geographical Practice Region For Guardianship Matters
Pryor, Oklahoma, Tulsa, Oklahoma, Claremore, Oklahoma, Jay, Oklahoma, Shawnee, Oklahoma, Oklahoma City, Oklahoma, Rogers County, Oklahoma, Wagoner County, Oklahoma, Mayes County, Oklahoma, Delaware County, Oklahoma, Tulsa County, Oklahoma, Pottawatomie County, Oklahoma and Oklahoma County, Oklahoma.