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Guardianship and Incapacity


What happens if you become incapacitated to the extent you cannot care for yourself? If you have executed powers of attorney, the answer is easy: the person or persons you designated in your powers of attorney can immediately step in and make financial or medical decisions for you. But if you do not have powers of attorney in place when you become incapacitated, the answer to that question is more complicated. Depending on the extent of your incapacity and your ability to make informed decisions about yourself and your property, somebody might need to be named your Guardian.

A Guardian is appointed by a court to care for the person and/or estate of an incapacitated person. In Arkansas, a Guardianship must be limited to provide only what is necessary for the care and protection of the incapacitated person and should be created in a way that promotes independence and self-reliance.

“Incapacitated” in the context of a Guardianship means different things than capacity might mean for Wills, Trusts, Contracts, and other legal procedures. Arkansas’s Guardianship laws include more than mental or physical incapacity; they include disability, age, drug addiction, foreign imprisonment, and missing persons.

But most commonly the need for a Guardianship will arise in two situations: a person is either too young to care for his or herself (less than 18 years of age) or has become unable to care for his or herself through illness or disability. The ultimate question is whether or not a person has the ability to understand or communicate the essential requirements for his or her health, safety, and care.

To be appointed as the Guardian over another person, you must be at least 18 years of age, of sound mind, and you cannot be a convicted felon. The court will also consider the preference of the incapacitated person or their spouse and relationships by blood or marriage.

To obtain a guardianship, Arkansas law requires very specific information to be included in the petition:

  1. Name, Age, Address of the incapacitated person;
  2. The nature of the incapacity and purpose of the guardianship;
  3. The approximate value of the incapacitated person’s estate;
  4. Whether there is any guardianship over the person in any State;
  5. The Address of the petitioner;;
  6. The ascertainable Name and Address of the people most closely related to the incapacitated person by blood or marriage;
  7. The Name and Address of the person or institution having the care and custody of the incapacitated person;
  8. The Name and Address of any natural persons who are already Guardian;
  9. The reasons for the guardianship and the interest of the petitioner in the appointment;
  10. The person’s alleged disability;
  11. A recommended type, scope, and duration of the guardianship;
  12. A statement that any facility or agency from which the person is receiving services has been notified of the proceedings; and
  13. The Name and Address of any other persons having knowledge about the incapacitated person’s disability.

Arkansas law requires a professional evaluation to prove the alleged incapacity. The evaluation must address the persons physical and mental condition; adaptive behavior; intellectual functioning; and recommendations for the specific areas needing assistance and the least restrictive alternatives available. The evaluation can be submitted through oral testimony or sworn written affidavit. It is not uncommon for petitioner’s to have to obtain HIPAA releases for evaluations and to pay the professional for the evaluation. In addition, the proposed ward must be served with the guardianship petition to afford the ward with an opportunity to contest the guardianship.

If the Court determines the person is incapacitated, it will tailor any guardianship to the least restrictive scope necessary to care for the individual. Any order entered by the Court must contain findings that the person is incapacitated and in need of a guardian over their person, estate, or both. The court may require a bond to insure the correct use of the incapacitated person’s money.

An appointed Guardian will have a duty to care for the incapacitated person and must make periodic reports to the Court. An appointed Guardian of the Estate must exercise care to protect and preserve the incapacitated person’s finances and is required to provide accountings of the use of any monies.

If you have any questions about Guardianships or think you or a loved one may need to speak with an attorney about a Guardianship, please call the attorneys at Owens, Mixon, Heller & Smith, P.A. today. 1-870-336-6505

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