Guardianship

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.

Guardianship Can Be Complex

Guardianship often involves 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 an individual who may need a guardianship. Having an experienced attorney who understands the Oklahoma guardianship laws is critical when establishing the guardianship for a minor child or adult.

The Ritchie, Rock & Atwood Law Firm can lead you through the often complex and emotional decisions 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 that we can answer any of the questions or concerns you have about this legal process.

What Are The Duties Of A Guardian

A good guardian will take into account the wishes and desires of the person under guardianship when making decisions about such things as the residence, medical treatments, and end-of-life decisions of that person. The courts will remove only those rights that the proposed person under guardianship is incapable of handling.

When the court appoints 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.
Marry.
Vote.

Guardianship Entails Responsibilities

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

How Long Is 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.

What Is The 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. This includes:

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.