How to Terminate Temporary Guardianship
Updated: Nov 17, 2020
In Oklahoma, there are two types of guardianships: the guardianship of a minor child, and the guardianship of an adult. A guardianship of a child exists when the parents are deceased or unfit. A guardianship of an adult exists when the adult is incapacitated. To find out more about what a guardianship is, click here. All guardianships are, by law, temporary.
To terminate a guardianship in Oklahoma (if you are an adult under guardianship, or the parent of a child under guardianship), you should:
File a motion to terminate the guardianship
Ask the judge for a hearing date
At the hearing, explain to the judge why your guardianship should be terminated
To terminate a guardianship in Oklahoma if you are the guardian, the procedure is:
File a resignation of guardian, and a final report of guardian
As the judge for a hearing
At the hearing, ask the judge to approve the final report.
I will explain these steps in more detail, below.
How to Terminate a Guardianship – if you are an adult under guardianship or the parent of a child under guardianship
Oklahoma law says that a court should terminate a guardianship for any of the following reasons:
For abuse of the guardian’s fiduciary responsibility.
For the guardian’s continued failure to perform his duties.
For the guardian’s incapacity to perform his duties.
For the guardian’s gross immorality.
For the guardian’s having an interest adverse to the faithful performance of his duties.
If the instrument in which the person was nominated as guardian is judicially determined to be invalid.
In the case of guardian of the property, for insolvency.
When it is no longer proper that the ward should be under guardianship.
To terminate a guardianship, you must prove that any of the following reasons, listed above, exists. A frequent reason for terminating a guardianship is No. 8, above, “When it is no longer proper that the ward should be under guardianship.” If the ward is a child, it is no longer proper that the ward remains under guardianship, when the parents have gained their fitness. If the ward is an incapacitated adult, it is no longer proper that the ward remains under guardianship, when the adult becomes competent.
If you are a parent seeking to terminate guardianship of your minor children, file a motion to terminate guardianship, with the court, and ask the judge to set the matter for hearing. At the hearing, you will be allowed to present evidence that the guardianship should terminate, and the guardian will be allowed to present evidence that the guardianship should continue. The judge will then decide whether to continue the guardianship or terminate the guardianship. I have posted a petition to terminate guardianship form, for Oklahoma, here. Scroll down to “Termination of Guardianship Forms – Oklahoma” and follow the instructions. (Note: this form is only to terminate the guardianship of a minor; it will not work to terminate the guardianship of an adult.)
If you are an adult seeking to terminate a guardianship over your person or property, file a motion to terminate guardianship in court and ask the judge for a hearing. At the hearing, both you and the guardian will be allowed to present evidence for your position. The judge will then decide, based on the evidence, whether to continue the guardianship or terminate the guardianship.
How hard is it to terminate guardianship?
The Oklahoma Supreme Court has ruled that,
"The person seeking to terminate a temporary guardianship as ‘no longer necessary’ has the burden of proving by clear and convincing evidence that the conditions that led to creation of the guardianship have been corrected."
Note the words “clear and convincing evidence.” “Clear and convincing evidence” is a legal term, that is difficult to define. One of my law professors described “clear and convincing” as “There’s no easy way to define clear and convincing, but think of it as 75%.” Oklahoma law says that “clear and convincing evidence” means “highly probable and free from serious doubt.”
In other words, if you argue that a guardianship is no longer necessary, you must prove that it is “highly probable and free from serious doubt” that the guardianship is no longer necessary.
Oklahoma courts have ruled that “clear and convincing evidence” is the burden of proof that you must show if you seek to terminate a guardianship on the grounds that the guardianship is no longer necessary. However, recall that the above statute lists “no longer necessary” as only one of eight grounds to terminate a guardianship. The statute also lists seven other grounds for terminating a guardianship. Oklahoma courts have not yet ruled on what the burden of proof is, for someone who seeks to terminate a guardianship based on the other seven grounds.
Because terminating a guardianship can be difficult, it is highly advisable to retain a lawyer if you seek to terminate a guardianship. The forms I have posted on this website are not a substitute for legal counsel. If you can afford a lawyer, you should hire a lawyer if you want to terminate a guardianship. The Persaud Law Office can assist you in terminating a guardianship; contact us for a free consultation.
How to relinquish guardianship – if you are the guardian and want to terminate guardianship
If you are a guardian, and you want to relinquish guardianship, file a “Resignation of Guardian” with the Court. Then, file a final report of your activities as a guardian. Ask the judge to set the matter for hearing. At the hearing, ask the judge to discharge you as guardian, and to approve the final report. Once the judge approves your final report, you are done.
To obtain forms to relinquish a guardianship, click here. Scroll down to "How to Relinquish Guardianship if You Are the Guardian. (Note: this form is only to relinquish the guardianship of a minor; it will not work to relinquish the guardianship of an adult.
Oklahoma law intended for guardianships to be temporary because a guardianship should exist only if it is necessary. If you are a parent, and a court has placed your children under guardianship because the court has found you unfit, you should have a second chance. If you are an adult, and a court has placed you under guardianship because of your incapacity, the guardianship should end as soon as you become competent. Don’t let an unnecessary guardianship burden you. If you have more questions about terminating a guardianship, contact our office today.