The Oklahoma Bar Journal September 2024

exam results, should be dated recently if possible. If the petitioner is asking for ex parte special guard ianship letters, they should allege with as much specificity as possible and should seek to obtain a medical examination and/or records as soon as possible. SPECIAL VERSUS GENERAL GUARDIANSHIP Special Guardianship A guardian appointed on an ex parte emergency basis of an adult is called a special guardian rather than a temporary guardian. The court may appoint a special guardian if: There is imminent danger that the health or safety of said per son will be seriously impaired or that the financial resources of said person will be seriously damaged or dissipated unless immediate action is taken; and [n]o other person appears to have authority to act in the circumstances or the guardian previously appointed is unable to or refuses to take action. It is important to remember the request to appoint a special guard ian may be included in the general petition or separately, but it must be filed along with the petition for general guardianship. 5 General Guardianship A general guardian is “a guard ian of the person or of all the property of the ward within this state or of both such person and property.” 6 If the judge believes the guardianship should continue beyond the emergency, the special guardianship will be converted to a general guardianship at the show-cause hearing, which must be set within 30 days. 7

Additionally, 30 O.S. §3-104 outlines a list of persons who have priority to be appointed as guardians. Topping the list is the person(s) who is nominated by the proposed ward in the proceeding, followed by their current guardian and then the person(s) nominated in their previously executed trust or power of attorney. Guardianship of an adult should only be used as a last resort. It is best practice to determine whether guard ianship is appropriate in the circum stances and, more importantly, is the least restrictive alternative. The least restrictive alternative means: meeting the needs of an individ ual that restricts fewer rights of the individual than the appointment of a guardian or conservator including, but not limited to, sup ported decision making, appro priate technological assistance, appointment of a representative THE LEAST RESTRICTIVE ALTERNATIVE

WHO CAN BE A GUARDIAN? Title 30 O.S. §4-105 provides a list of disqualifiers a proposed guardian must not meet to be eli gible to serve as a court-appointed guardian. A guardian should not: be a minor or have been found to be incapacitated or partially incapacitated, be convicted of any crim inal charges, be subject to any protective order or have any pending criminal cases (this applies to the applicant and any adult living in the household), 8 be insolvent or have filed for bankruptcy within the last five years, be indebted to the ward or be party to “a conflict of interest which would preclude or be substantially detrimental to the ability of the person to act in the best interest of the subject of the proceeding if such person is appointed.” 9

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

64 | SEPTEMBER 2024

THE OKLAHOMA BAR JOURNAL