Anyone may file a petition seeking guardianship of an adult who they claim is incapacitated. Notice of the petition and any court hearing must be provided to the adult and the adult’s family members.
Being incapacitated, or lacking capacity, means that you are impaired due to mental illness, a disability, physical illness, or substance abuse to such an extent that you cannot handle the basics required for physical health and safety and/or that you are unable to manage your financial resources. Suppose you are determined to be an incapacitated person. In that case, some other person or group of people will be assigned responsibility for your care, and you will lose significant decision-making ability about parts of your life.
Guardianships can be very helpful, life-saving tools. Unfortunately, if a guardianship is not necessary, it can be restrictive and create unnecessary friction, conflict, expense, and complication for everyone involved.
Oklahoma law recognizes that being subject to a guardianship impacts individual liberty and freedom. If the adult who would be the ward of the guardianship (the alleged incapacitated person) does not agree to the proposed guardianship, the guardianship may be challenged. The adult subject of the guardianship has the right to hire independent counsel. At trial, the person who filed the petition has a high burden of proof to show that the adult in question is incapacitated and that a guardianship is necessary.
The judge will have a broad range of options for resolving the petition, including dismissing the case outright, appointing a limited guardian whose role is only for helping with specific needs, appointing a guardian for either the person or property of the ward, or both.
It is critical to gather your evidence early and often. You may need to gather records concerning your medical treatment and medications. Your friends and family members may make sworn statements about their observations and be subpoenaed to court to testify. Your financial records, including account balances, transactions, and other information, may help prove that you can handle your finances. Either side may engage an expert to perform physical and mental examinations to assess, from a professional standpoint, your health status. Photos and videos may also be helpful to illustrate whether a guardianship is appropriate or not.
Your judge will be someone who routinely handles cases like yours, most of which are uncontested because a guardianship is truly necessary. If you wish to challenge a guardianship and show that the petition in your case does not have an adequate basis and is an overreach, you should work closely with your legal counsel to ensure that the appropriate paperwork is filed and that you gather all the evidence you can for your case.