Nominating a Guardian and Conservator

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For oneself

Almost anyone can nominate a guardian or conservator for oneself in the event of one's future incapacity. The court will appoint the nominee unless there are good reasons not to. There are two ways to nominate a guardian or conservator for oneself. The first way is by a signed writing. This might include an appointment in an advance healthcare directive or a power of attorney. The nomination form found in the Forms section also is sufficient.

The second way is to make the nomination known in almost any way: in writing or orally to another person. However, if the nomination is made in this second way, the court will have to find that the person making the nomination was at least 14 years old and had sufficient mental capacity to make the nomination.

 

For another

Certain people can nominate a guardian or conservator for someone else. The parent of a minor child can nominate a guardian or conservator for the child. The spouse or parent of an adult can nominate a guardian or conservator for that person. Also, someone who is caring for or paying benefits to an adult can nominate a guardian or conservator for that person. The court will appoint these nominees unless there is someone with a higher priority or there are good reasons not to. The person for whom the guardian or conservator is nominated might already be incapacitated or might be found to be incapacitated in the future.

To be effective, nomination of a guardian or conservator for someone else must be in a will or other signed writing. The requirements for a will are beyond the scope of this page. A signed writing that conforms substantially to the nomination form found in the section on Forms is sufficient.

 

When does the appointment of a nominee become effective?

The appointment of the nominee of a guardian for a child or spouse made in a parent's or spouse's will becomes effective when the nominee files his or her acceptance in the court that probates the will.

The appointment of the nominee of a guardian for a child made in a parent's other signed writing becomes effective when the nominee files with the court:

  • a petition for appointment of a guardian for the minor;
  • the signed, written document that makes the nomination; and
  • an affidavit accepting the appointment which states:
  • the name, address, and age or birthday of the minor;
  • the name, address, and telephone number of the nominee;
  • the names of the parents of the minor and that both are dead or incapacitated;
  • the name of the parent who was last to die and the county where that parent resided at the date of death;
  • that the nominee knows of no other appointment which supersedes the nomination by the signed, written document; and
  • that the nominee accepts the appointment.

For more information and forms, see the OCAP interview for Guardianship of a Minor.

The appointment of the nominee of a guardian or conservator for an adult becomes effective when the court appoints that person. For more information and forms, see our page on Procedure for Appointing a Guardian for An Adult and Procedure for Appointing a Conservator for an Adult.

 

Statutes

 

Forms

  • 1359XX
  • 1360XX
  • 1361XX
  • 1362XX
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