A guardian is a person appointed by a judge to protect the property or physical safety of an adult who is unable to care for him or herself. The person appointed by the court is called the guardian. The person who is declared incompetent is called the ward.
Before appointing a guardian, the judge must first find by clear and convincing evidence that the proposed ward is unable to manage his finances, protect himself from harm, and/or meet his basic needs.
General Guardianship gives the guardian full power over the ward's property and/or person. This is granted when the court determines that the ward is completely incapacitated. 30 O.S. s. 1-109.
Limited Guardianship gives the guardian only the powers specified by the court over the ward's property and/or person. The ward keeps some power to manage his property or make decisions about his care. This is granted when the court determines that the ward is only partially incapacitated. 30 O.S. s. 1-109.
Special Guardianship is used to appoint a temporary guardian in an emergency. Usually the special guardianship is very limited and will not last longer than 30 days. 30 O.S. s. 3-115.
There are also two categories of guardianships:
Guardianship of the Person gives the guardian the authority to make decisions about the ward's health care and personal care. This may include choosing where the ward lives and consenting to medical treatment.
Guardianship of the Estate gives the guardian the authority to manage the ward's money and property. This may include receiving income, paying for the ward's expenses, and buying or selling property.
Depending on the ward's needs and capacity, the judge may appoint a general or limited guardianship of the person and/or the estate. The judge may also appoint different people to serve as guardian of the person and guardian of the estate.
How a Guardian is Appointed
The person seeking to become a guardian files a petition with the court asking to be appointed by the judge. A hearing will be scheduled, and notice must be given to the proposed ward and others entitled to notice. At the hearing, the proposed ward or others have the right to object to the guardianship. If there is an objection, a future hearing date will likely be scheduled when both sides can present evidence.
First the judge will determine whether a guardianship is necessary. Then the judge will determine who should serve as guardian. It may or may not be the person who originally filed the petition.
Once a guardian is appointed, he or she can exercise the powers granted by the court. A guardianship is supervised by the court. This means that the guardian must periodically file reports with the court and seek the court's permission for certain actions.
Removing a Guardian and Terminating a Guardianship
A guardian can be removed if the guardianship is no longer necessary or if the guardian needs to be replaced due to voluntary resignation or wrongdoing. The ward, someone acting on the ward's behalf, or the guardian may petition to have the guardian removed.
