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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
ENGROSSED SENATE
BILL NO. 198 By: Rosino of the Senate
and
Lawson of the House
An Act relating to the Oklahoma Guardianship and
Conservatorship Act; amending 30 O.S. 2011, Sections
1-111, as amended by Section 28, Chapter 475, O.S.L.
2019 and 3-111 (30 O.S. Supp. 2020, Section 1 -111),
which relate to definitions and court order
appointing guardian; modifying definitions; requiring
court to make certain determinations; authorizing
dismissal of action under certain circumstances;
requiring court order to include specified finding;
establishing requirements for certain guardianships;
making language gender neutral; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 30 O.S. 2011, Section 1 -111, as
amended by Section 28, Chapter 475, O.S.L. 2019 (30 O.S. Supp. 2020,
Section 1-111), is amended to read as follows:
Section 1-111. A. As used in the Oklahoma Guardianship and
Conservatorship Act:
1. “Abuse” means the intentional infliction of physical pain,
injury, or mental anguish or the deprivation of food, clothing,
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shelter, or medical care to an incapacitated per son, partially
incapacitated person, or a minor by a guardian or other person
responsible for providing these services;
2. “Confidential information ” means medical records, physical,
psychological or other evaluations of a ward or subject of the
proceeding, initial and subsequent guardianship plans, reports of
guardians, limited guardians and conservators submitted to the court
in connection with a proceeding pursuant to the provisions of the
Oklahoma Guardianship and Conservatorship Act;
3. “Court” means a judge of the district court assigned to hear
probate matters or assigned to the division of the district court
designated to exercise probate jurisdiction;
4. “Estate” means the property of the person whose affairs are
subject to a guardianship proceed ing;
5. “Evaluation” means a professional assessment of:
a. the ability of an adult to receive and evaluate
information effectively or communicate decisions,
b. the impact of any impairment of these skills on the
capacity of the individual to meet the ess ential
requirements for his the individual’s physical health
or safety, or to manage his the individual’s financial
resources, and
c. the services necessary to provide for the ward;
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6. “Exploitation” means an unjust or improper use of the
resources of an incapacitated person, a partially incapacitated
person, or a minor for the profit or advantage, pecuniary or
otherwise, of a person other than an incapacitated person, a
partially incapacitated person , or a minor through the use of undue
influence, coercion, harassment, duress, deception, false
representation, or false pretense;
7. A “guardian of an incapacitated person ” means a person who
has been appointed by a court to serve as the guardian of an
incapacitated person to assure that the essential require ments for
the health and safety of the person are met, to manage the estate or
financial resources of the person, or both;
8. “Guardian ad litem” means, with respect to a guardianship
proceeding, a person appointed by the court to assist the subject of
the proceeding in making decisions with regard to the guardianship
proceeding, or to make the decisions when the subject of the
proceeding is wholly incapable of making the decisions even with
assistance;
9. “Guardianship plan” means the plan for the care a nd
treatment of a ward, the plan for the management of the financial
resources of a ward, or both;
10. “Guardianship proceeding ” means a proceeding for the
appointment of a guardian, or for other orders regarding the
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condition, care or treatment or for th e management of the financial
resources of a ward;
11. “Guardianship report” means any report required by the
provisions of Sections 4 -305 and 4-306 of this title;
12. “Incapacitated person ” means a person eighteen (18) years
of age or older:
a. who is impaired by reason of:
(1) mental illness as defined by Section 1 -103 of
Title 43A of the Oklahoma Statutes,
(2) intellectual or developmental disability as
defined by Section 1430.2 of Title 10 of the
Oklahoma Statutes,
(3) physical illness or disability,
(4) drug or alcohol dependency as defined by Section
3-403 of Title 43A of the Oklahoma Statutes, or
(5) such other similar cause, and
b. whose ability to receive and evaluate information
effectively or to make and to communicate responsible
decisions is impaired to such an extent that the
person:
(1) lacks the capacity to meet essential requirements
for his physical health or safety, or
(2) is unable to manage his financial resources.
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Whenever in the Oklahoma Statutes the term “incompetent person”
appears and refers to a person who has been found by a district
court to be an incompetent person because of an impairment or
condition described in this paragraph it shall have the same meaning
as “incapacitated person ” but shall not include a person who is a
partially incapacitated person;
13. “Least restrictive dispositional alternative” means the
form of assistance that least interferes with the legal ability of
an incapacitated or partially incapacitated person to act in his own
behalf an approach to meeting the needs of an individual that
restricts fewer rights of the individual than would the appointment
of a guardian or conservator including, but not limited to,
supported decision making, appropriate technological assistance,
appointment of a representative payee and appointment of an agent by
the individual including under a power of attorney for health care
or finances;
14. “Intangible personal property ” means cash, stocks and
bonds, mutual funds, money market accounts, certificates of deposit,
insurance contracts, commodity accounts, and other assets of a
similar nature;
15. “Letters” means a document issued by the court subsequent
to the appointment of a guardian which designates the name of the
guardian and specifies the authority and powers of the gua rdian.
Such document shall be endorsed thereon with the oath of the
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guardian that he or she will perform the duties of his or her office
as guardian according to law;
16. A “limited guardian” means a person appointed by the court
to serve as the guardian of a partially incapacitated person and who
is authorized by the court to exercise only:
a. some of the powers of a guardian of the person or
whose power as guardian of the person extends only to
certain matters pertaining to the care or control of
the ward as specified by the court, or
b. certain powers as guardian of the property over the
estate or financial resources of the ward, or whose
powers as guardian of the property extend only to some
portion of the estate or financial resources of the
ward;
17. “Manage financial resources ” or “manage the estate” means
those actions necessary to obtain, administer , and dispose of real
property, business property, benefits and income, and to otherwise
manage personal financial or business affairs;
18. “Meet the essential requirements for physical health or
safety” means those actions necessary to provide the health care,
food, shelter, clothing, personal hygiene and other care without
which serious physical injury is more likely than not to occur;
19. “Minor” means a person under eighteen (18) years of age;
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20. “Neglect” means the failure to provide protection for an
incapacitated person, a partially incapacitated person , or a minor
who is unable to protect the person ’s own interest; or the failure
to provide adequate shelter or clothing; or the harming or
threatening with harm through action or inaction by either another
individual or through the person ’s own action or inaction because of
a lack of awareness, incompetence , or incapacity, which has resulted
or may result in physical or mental injury;
21. “Organization” means a corporation, trust, business trust,
partnership, association , or other legal entity;
22. “Partially incapacitated person ” means an incapacitated
person whose impairment is only to the exte nt that without the
assistance of a limited guardian the person is unable to:
a. meet the essential requirements for his physical
health or safety, or
b. manage all of his the person’s financial resources or
to engage in all of the activities necessary for the
effective management of his the person’s financial
resources.
A finding that an individual is a partially incapacitated person
shall not constitute a finding of legal incompetence. A partially
incapacitated person shall be legally competent in all ar eas other
than the area or areas specified by the court in its dispositional
or subsequent orders. Such person shall retain all legal rights and
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abilities other than those expressly limited or curtailed in the
orders;
23. “Party” means the person or enti ty filing a petition,
application, motion, acceptance of a testamentary nomination , or
objection; the subject of a guardianship proceeding; and the
guardian, the guardian ad litem and the conservator, if any such
persons have been appointed;
24. “Person” means an individual;
25. “Property” means real property, personal property, income,
any interest in such real or personal property and includes anything
that may be the subject of ownership;
26. “Restrictions on the legal capacity of a person to act in
his the person’s own behalf” means powers of an incapacitated or
partially incapacitated person which are assigned to a guardian;
27. “Subject of the proceeding ” means a minor or an adult:
a. who is the subject of a petition requesting the
appointment of a guardian, limited guardian or special
guardian,
b. for whom a guardian or limited guardian has been
appointed by the court, or
c. an adult for whom a conservator is requested or
appointed; and
28. “Supported decision making ” means assistance from one or
more persons chosen by an individual in understanding the nature and
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consequences of potential personal and financial decisions to enable
the individual to make such decisions, and in communicating such
decisions if consistent with the wishes of the indivi dual; and
29. “Surcharge” means the imposition of personal liability by a
court on a guardian or limited guardian for willful or negligent
misconduct in the administration of the estate or other financial
resources of a ward.
B. 1. Nothing in this secti on shall be construed to mean an
incapacitated person, a partially incapacitated person , or a minor
is abused or neglected for the sole reason that a guardian or other
person responsible, in good faith, selects and depends upon
spiritual means alone throug h prayer, in accordance with the tenets
and practices of a recognized church or religious denomination, for
the treatment or cure of disease or remedial care of the person or
minor in their trust, and, in the case of an adult, in accordance
with the practices of or the express consent of the incapacitated or
partially incapacitated person.
2. Nothing contained in this subsection shall prevent a court
from immediately assuming custody of a minor, pursuant to the
Oklahoma Children’s Code, and ordering whatev er action may be
necessary, including medical treatment, to protect the minor ’s
health or welfare.
SECTION 2. AMENDATORY 30 O.S. 2011, Section 3 -111, is
amended to read as follows:
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Section 3-111. A. At the hearing on the petitio n the court
shall determine whether or not it is necessary to appoint a guardian
of the person, property or both. If a guardian is needed, the court
shall determine:
1. When a general or limited guardian of the person of the
subject of the proceeding is requested, the essential requirements
for the health and safety of the subject of the proceeding and the
skills and knowledge necessary to meet those requirements;
2. When a general or limited guardian of the property of the
subject of the proceeding is r equested, the type and amount of the
financial resources of the subject of the proceeding, the essential
requirements for managing the financial resources , and the skills
and knowledge necessary to manage the financial resources;
3. The nature and extent of the incapacity of the subject of
the proceeding, if any; and
4. Whether by clear and convincing evidence the subject of the
proceeding is an incapacitated or partially incapacitated person.
B. If after a full hearing and examination upon such petition ,
the court finds by clear and convincing evidence that the subject of
the proceeding is an incapacitated or partially incapacitated
person, the court shall appoint a guardian or limited guardian and
shall issue an order appointing a guardian. The court s hall explain
on the record the facts and reasons supporting the decision not to
impose any determine the extent of the incapacity and the
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feasibility of less restrictive alternatives to guardianship to meet
the needs of the subject of the proceeding. Upon such
determination, the court may:
1. Dismiss the action if the court finds that less restrictive
alternatives to guardianship are feasible and adequate to meet the
needs of the subject of the proceeding ; or
2. Appoint a guardian or limited guardian . An order making
such an appointment shall include a specific finding that it was
established by clear and convincing evidence that the identified
needs of the subject of the proceeding require a guardianship
instead of less restrictive alternatives .
C. Guardianship for an incapacitated person shall be:
1. Used only as is necessary to promote and protect the well -
being of the person and his or her property;
2. Designed to encourage the development of maximum self -
reliance and independence of the person; an d
3. Ordered only to the extent required by the actual mental,
physical and adaptive limitations of the person .
SECTION 3. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CIVIL, dated
03/30/2021 - DO PASS.