Guardianship of an Adult
Authored By: Legal Aid Services of Oklahoma, Inc.
An "incapacitated person" is a person of eighteen (18) years or older who is impaired by reason of mental illness, physical illness or disability, substance dependency, or such similar cause; causing the person to lack the ability to care for his physical safety or financial resources. If the proposed ward is under the age of eighteen (18) years, see Minors.
A guardian has legal authority to make personal and financial decisions for a child or incapacitated party, indefinitely. This person is appointed by a court to serve as the guardian of a minor child or an incapacitated person to assure that the essential requirements for the health and safety of the person are met, to manage the estate or financial resources of the person, or both.
Information and Court Forms were created by the Estate Planning, Probate and Trust Section of the Oklahoma Bar Association and you can download them.
Adult Guardianship Handbook and Court forms (Oklahoma Bar Association) here
Purpose of Adult Guardianship
An adult who is incapacitated or partially incapacitated may need help taking care of their physical health and financial resources. A court appointed guardian can help ensure that the individual in question has help making these decisions.
Forms of Guardianship:
In Oklahoma, there are three basic types of guardianship:
- General A "general" guardianship is a guardian who has control over the ward and/or all of the ward's property in Oklahoma.
- Limited A "limited" guardian is a guardian who only has limited powers over the ward and/or the ward's property.
- Special A "special" guardian is a guardian who is appointed for an emergency purpose. Usually, these do not last for more than thirty (30) days.
Procedure to Attain Adult Guardianship
To obtain adult guardianship, a person must submit a petition specifying:
The names and addresses of persons entitled to notice.
The nature and degree of the alleged incapacity.
The relief requested and the facts supporting that relief.
The estimated value of the intangible personal property of the ward.
It may also be necessary to submit copies of professional evaluations of the individual in question as well as guardianship plans.
The court will generally make an investigation of the background of the prospective guardian, including previous criminal and civil matters.
Self-Nomination of Guardian (Adults)
An adult of eighteen (18) years or older, who is of sound mind and not acting under duress, fraud, or influence, may nominate a guardian of his person or property. Upon incapacitation, this nomination shall be binding once approved by the court. This nomination must be in writing. A person nominated may be unwilling or may not qualify to serve.
Guardianship Priority List For an Incapacitated Adult
The following list is the order of priority for an individual to take guardianship rights over an incapacitated adult:
- Individual nominated by the subject
- Current guardian appointed by another court
- An individual nominated by the will of another guardian
- The spouse of the subject
- An adult child
- A parent of the subject
- A sibling of the subject
- An individual living with the subject for more than six (6) months and approved by court
Rights of Incapacitated Adults
An individual alleged to be incapacitated has the right to:
- Receive notice of the hearing
- Be present at the hearing
- Have witnesses present
- Present evidence
- Cross-examine witnesses
An individual alleged to be incapacitated may also be appointed an attorney by the court, called a "Guardian Ad Litem."
For more information on becoming or receiving court-ordered adult guardian, you may click here for a list of Legal Aid resources. You may click here to reference the Legal Aid information and lawyer referral service.
Individuals in Nursing Homes, Assisted Living and Residential Care Facilities have certain rights, too. Learn more here
Learn about being a volunteer with the Ombudsman Program or filing a complaint here