What Are the Rights and Duties of a Guardian?
A guardian may have the right to control the ward’s:
A guardian has the duty:
To take proper care of the ward
To file reports of the guardianship with the court
To refrain from exploiting the ward’s property to his own advantage.
If you have been appointed a legal guardian – whether of a child or of an adult – you have very important rights, but also very important duties.
A court may appoint a guardian for a child (if the parents are unfit) or for an adult (if the adult is incapacitated. In last week’s post, I discussed how you may become the guardian of a child. The week before last, I explained how you may nominate a guardian for your child. In earlier posts here and here I showed how you may become the guardian of an adult.
Rights and Powers of a Guardian
A guardian may have guardianship over the person of the ward, or of the property of the ward, or over both. Often, the guardian of the person of the ward, may change the residence of the ward, control the ward’s medical care, and the ward’s education. Often, the guardian of the ward’s property may (as term implies) control the ward’s finances, income, and may buy and sell the ward’s property. However, courts can define, specifically, the powers of a guardian in each individual case. The Oklahoma statute on guardianships says, “A guardian has only those powers over the person or the property of the ward, or both such person and property, as ordered by the court.”
There are three types of guardians:
A general guardian has the broadest powers of all types of guardians. Okla. Stat. tit. 30 § 1-109 states, “A general guardian is a guardian of the person or of all the property of the ward within this state or of both such person and property.” A limited guardian is “authorized by the court to exercise limited powers over the person of the ward, or over the property of the ward within this state, or over both such person and property.” The court will define precisely what those limited powers are.
A special guardian is appointed to act only in emergencies, when it is necessary that a guardian be appointed quickly. A special guardian may only have the powers that the court deems it necessary to exercise during the emergency. A special guardian may not hold guardianship for more than thirty days. If the court finds that the ward still needs a guardian after the end of a special guardian’s term expires, the court will appoint either a general or limited guardian.
All guardianships, are, by nature, temporary. A guardianship over a minor ends when the minor turns eighteen, or when the parent(s) of the child regain parental fitness. Because parents have the constitutional right to custody of their children, a guardianship of a minor may only last if both parents are unfit. A guardianship over an incapacitated adult ends when the adult is no longer incapacitated. The court may also remove a guardian at any time. If a guardian engages in misconduct, that is grounds for removal of the guardian.
Limitations on the power of a guardian
A guardian may not consent to withhold life-sustaining treatment from the ward, unless:
The court having jurisdiction over the guardianship specifically authorized such withdrawal;
The ward has authorized the guardian to withhold life-sustaining medical treatment under the Oklahoma Advance Directive Act or the Oklahoma Do-Not-Resuscitate Act; or
The guardian consents for the ward to receive hospice services, as authorized by a licensed physician, who determines that the ward is terminally ill, as defined by the Oklahoma Hospice Licensing Act.
If the ward has children, a guardian may not consent to the termination of the ward’s parental rights.
A guardian may not consent to the ward having an abortion, psychosurgery, removal of a bodily organ, performance of an experimental biomedical or behavioral procedure, or participation in a biomedical or behavioral experiment. Exceptions to this limitation may exist if there is an emergency and the procedure is necessary to preserve the life of the ward, or if a court specifically authorizes the guardian to consent to the procedure.
A guardian may not prohibit the ward from marrying or divorcing, unless the court specifically authorizes the guardian to do so.
If the guardian wants to commit the ward to an institution, and someone without a guardian could not be committed to the institution without a trial, then the guardian may not commit the ward to the institution without a trial. The ward has the right to be represented by an attorney at this trial.
Duties of a Guardian
With power comes responsibility, and the law says that guardians have duties toward the ward. These duties include:
Filing an inventory of the ward’s property with the court;
Filing a report of the guardianship with the court every year, or at a predetermined time when the court orders the report to be filed;
Taking adequate care of the needs of the ward, including the ward’s education of the ward is a minor. If the guardian does not properly provide for the needs of the ward, the guardian may be criminally prosecuted for abuse or neglect.
Safeguarding the ward’s property. If the guardian confiscates any of the ward’s money or property for his own use, the guardian may also be criminally prosecuted.
Handbook for Guardians
The Oklahoma Bar Association (OBA) has prepared a handbook for guardians. This handbook describes the rights and duties of guardians in much greater detail than is possible in a blog post such as this one. There are separate handbooks – one for guardians of children, and another for guardians of adults. These handbooks are available on the OBA’s website here. If a court appoints you guardian, the court should give you a copy of this handbook.
Become a Guardian – Care for the Ones You Love
If you have a relative who is an incapacitated adult, or who is a child of unfit parents, a guardianship may be the best way to take care of the ones you love. You don’t want to put off this important step, but you also must be aware of what you can and can’t do. If you take appropriate care of the ward, you shouldn’t have any legal trouble.