You may have heard of adult guardianships before. If so, you may ask: What is a guardianship over an adult?
Definitions of guardianship vary from state to state. Generally speaking, a guardian acts in loco parentis; that is, in place of a parent. A guardian has the authority to make decisions for someone else (the “ward”) much like a parent has the authority to make decisions for a parent. In general, a court grants a guardianship when an adult is mentally incapacitated and cannot make decisions for himself. To obtain a guardianship over an adult, a person must generally petition a court to appoint him guardian.
In Oklahoma, a guardianship can allow the guardian to make decisions regarding the ward’s person (such as where the ward lives, and what medical care the ward will have) as well as the ward’s property (such as managing the ward’s bank accounts, and selling the ward’s real estate.) However, in Oklahoma, a judge may “custom design” a guardianship order so that the guardianship meets precisely the ward’s needs. A judge may allow the guardian to have as much, or as little, power over the ward as is necessary.
In California, where there has been much publicity surrounding the conservatorship of Britney Spears, a “conservatorship” allows the conservator to have the same power that a guardian would have in Oklahoma. In California, a conservatorship is the power over an adult or married or divorced minor; a guardianship, is the power over a minor who has never been married.
The Uniform Probate Code
In a state that has adopted the Uniform Probate Code, a guardian has the authority over the ward’s person, and a conservator has authority over the ward’s property. A person can be a ward’s guardian and conservator at the same time. As of 2022, eighteen states have adopted the Uniform Probate Code.
A guardianship obviously entails great responsibility. Much of the laws on guardianship are designed to prevent abuses. The controversy surrounding Britney Spears’ conservatorship has led many states, and the U.S. Congress, to look into enacting stricter laws to avoid injustice and exploitation.
All states require that the prospective ward be given notice before the court appoints a guardian. If the ward objects to the guardianship, the judge must hold a hearing, and the guardian has the right to be represented by an attorney. (Some states have an exception for emergencies, where a court may appoint a guardian without notice to a ward. In such emergency cases, the court must usually require that notice be given to the ward after the court grants the guardianship, and the guardian will have the right to a ”show cause” hearing to determine whether a guardianship may continue.) Many states have laws that disqualify certain persons, such as convicted felons, from serving as guardian. Some states prohibit a person from serving as guardian of property, if the proposed guardian has declared bankruptcy or is insolvent.
The Reporting Process
In many states, a guardian or conservator must make regular reports to the court, showing how the guardian or conservator has managed the ward’s person or property. Often, the guardian or conservator must send copies of the report to the ward, and the ward’s relatives. If the ward or a relative objects to the way the guardian or conservator is managing the property, the ward or relative can file an objection in court, and the court must hold a hearing to determine whether the guardian or conservator is acting responsibly. If the court finds that the guardian or conservator has not properly managed the ward’s person or property, the court may remove the guardian or conservator.
Guardianship law is concerned with striking the delicate balance between the need to protect vulnerable and incapacitated adults, and ensuring individual freedom. If you would like to become someone’s guardian, or have other concerns about a guardianship case, speak to an attorney qualified to practice in your state.
About the Author
Kyle Persaud founded Persaud Law Office to assist the residents of Bartlesville, OK, and surrounding areas, with a range of legal needs. Mr. Persaud deals with a wide variety of family law issues, including guardianship law. Mr. Persaud received his B.A. from Oklahoma Wesleyan University and his law degree from the University of Tulsa.