Title Examination Standards
Chapter 1, App.
Chapter 4. Capacity to Convey
§4.3. Capacity of Conservatees to Convey.

While appointment of a conservator does not presuppose mental incapacity, a conservatee is thereafter unable to make a contract which creates an obligation against the estate of the conservatee (except for necessities). Investment, management, sale or mortgage of property in the estate of a conservatee must be made in accordance with the laws governing guardianships.

Authority: 30 O.S. §§ 3-215 & 3-219 (formerly 58 O.S. §§ 890.5 & 890.10 prior to December 1, 1988; and 30 O.S. §§ 3-205 & 3-210 from December 1, 1988 to November 1, 1989). Comment: In Lindsay v. Gibson, 635 P.2d 331 (Okla. 1981), the Oklahoma Supreme Court held that a gift conveyance from the conservatee to the conservator and other siblings of the conservatee was invalid. In Matter of Conservatorship of Spindle, 733 P.2d 388 (Okla. 1986), the Court held that a physically disabled but mentally competent ward is not legally disabled from making a gift to her conservator, overruling Lindsay to that extent. Caveat: 1989 Okla. Sess. Laws, ch. 276, (codified as 30 O.S. § 3-211 et seq.) amended the conservatorship statutes to provide that a conservator may only be appointed with the consent of the ward, and further that all conservatorships created prior to November 1, 1989, with the consent of the ward would remain valid. 1992 Okla. Sess. Laws, ch. 395, § 2, effective September 1, 1992, (codified as 30 O.S. § 3-220) further provides that each such conservatorship shall be presumed to have been created by consent unless otherwise established by documents filed in the conservatorship or by other evidence.

Standard proposed by Report of Title Examination Standards Committee, 55 O.B.J. 1817, 1819 (1984). Approved by Real Property Section, November 1, 1984, and adopted by the House of Delegates, November 2, 1984. To reflect the Legislature's amendment of conservatorship statutes in 1989 Okla. Sess. Laws, ch. 276, the 1989 Report of the Title Examination Standards Committee proposed changing "necessaries" to necessities," changing the "Authority" citation ' and adding a Caveat. The Committee's 1989 Report also proposed amending the "Comment" to reflect the overruling of previously-cited case law, 60 O.B.J. 2502, 2518 (1989). The amendment was approved by the Real Property Section on November 16, 1989, and adopted by the House of Delegates on November 17, 1989, 60 O.B.J. 2941, 2952 (1989).

The 1993 Report of the Title Examination Standards Committee proposed amending the second sentence of the Caveat to the standard to incorporate 1992 legislation, 64 O.B.J. 3245, 3250 (10/30/93). The Real Property Section approved the amended standard on November 4, 1993, and the House of Delegates adopted it on November 5, 1993, 64 O.B.J. 3409 (11/13/93).