Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
Any person interested in the welfare of a person believed to be an incapacitated person or partially incapacitated person may file a petition alleging that person’s lack of capacity and request the appointment of a guardian. The petition must be verified and must state:
(1) names and addresses of persons entitled to notice and any attorney subject to the proceeding
(2) nature and degree of alleged incapacity
(3) relief requested and facts and reasons supporting the need for such relief including a description of any acts or behavior of the subject of the proceeding which gave rise to the allegations
(4) estimated value of all intangible personal property of the ward.
A copy of the results of any physical, psychological or other appropriate professional evaluation of the condition of the subject of the proceeding which has been completed within 60 days prior to the filing of the petition, may be attached to the petition at the time it is filed. A guardianship plan or plans may be attached to the petition at the time it is filed or may be submitted to the court at the time of the hearing.
Notice of Hearing:
At least 10 days prior to the hearing, a notice of the pending action must be served on the subject of the proceeding, and on the following persons who are either known to the petitioner, or whose existence and address can be ascertained with reasonably diligent efforts:
- the spouse, if any, of the subject of the proceeding,
- the attorney, if any, of the subject of the proceeding,
- all adult children of the subject of the proceeding,
- if there is no such adult child, then the living parent or parents of the subject of the proceeding, or
- if there is no such adult child, the then living parent or parents of the subject of the proceeding, or if there is no such parent, all adult brothers and sisters of the subject of the proceeding, and all adult children of any deceased brothers or sisters of the subject of the proceeding, and all adult grandchildren of the subject of the proceeding
If notice is not given to any person listed above, notice shall be given to at least one and not more than three of the nearest adult relatives of the subject.
The notice must also be served on:
- Anyone nominated to serve as guardian in the petition;
- The person or facility having care or custody of the subject of the proceeding;
- The Department of Human Services or the Department of Mental Health and Substance Abuse Services, if the Departments are providing services to the subject of the proceeding;
- The Secretary of the United States Department of Veterans Affairs if the subject of the proceeding is a veteran and is reasonably believed to be eligible for or in receipt of benefits or services from the Department; and
- Any other person as directed by the court.
Examinations, Evaluations, and Interviews:
A copy of the results of any physical, psychological, or other appropriate professional evaluation of the condition of the subject of the proceeding, completed within 60 days prior to the filing of the petition, may be attached to the petition when it is filed.
Adjudication and Disposition:
If after a full hearing and examination upon such petition, the court finds by clear and convincing evidence that the subject of the proceeding is an incapacitated or partially incapacitated person, the court shall determine the extent of the incapacity and the feasibility of less restrictive alternatives to guardianship to meet the needs of the subject of the proceeding.
Guardianship for an incapacitated person shall be used only as is necessary to promote and protect the well-being of the person and his or her property; designed to encourage the development of maximum self-reliance and independence of the person; and ordered only to the extent required by the actual mental, physical and adaptive limitations of the person.
Okla. Stat. tit. 30, § 1-111(A)(12)
Okla. Stat. tit. 30, § 3-101(A)-(D)
Okla. Stat. tit. 30, § 3-103(A)
Okla. Stat. tit. 30, § 3-110
Okla. Stat. tit. 30, § 3-111