Guardianship - what is sufficient incapacity?

By Dan Barney

Estate Planning & the Law

Last week we discussed the relative merits of a guardianship versus the much less restrictive Power of Attorney.

Because a guardianship has been described by the Oklahoma Supreme Court as “a massive curtailment of liberty,” it is important that guardianship be used only when necessary.

Although various degrees of control may accompany a limited guardianship, our discussion here applies to a general guardianship which includes full control of an individual’s person and property. The court must be assured that a person is truly “incapacitated.”

Who is an Incapacitated Person? Oklahoma laws define an incapacitated person in 30 OS 1-111. A person 18 years or older who is impaired by reason of:

1. Mental illness

2. Intellectual or developmental disability

3. Physical illness or disability

4. Drug or alcohol dependency

And whose ability to receive and evaluate information or to communicate decisions is impaired to such an extent that the person:

1. Lacks capacity to maintain health and safety

2. Is unable to manage financial resources.

A person requesting to be appointed guardian must present adequate evidence to the court to prove incapacity of the subject.

How is Evidence Presented? The professional opinion of medical, psychological or administrative bodies may be presented to the court.

Also, the court may initiate its own investigation via known medical experts.

In each case the type of professional selected to provide an opinion should match the needs of the person who will be subject to guardianship (i.e. the “Ward”).

Elderly clients are evaluated by geriatric specialists; financial capability by a financially oriented professional. Drug or alcohol disability may require some specific psychiatric expert opinion.

The court will receive such evidence and upon acceptance may, in many cases, require that the experts provide a plan for the care and administration of the ward and his assets.

This plan will become a control measure as well as provide guidance for the guardian who is finally appointed. Such controls will include regular monitoring and reports of performance back to the court.

Conclusion. A guardianship is restrictive and therefore requires careful review and confirmation of its necessity.

Medical and expert opinion is an important part of the review by a court to confirm that a guardianship is necessary and to develop guidelines for the administration of that guardianship.

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Guardianship - what is sufficient incapacity?