The Most Common Guardianship Questions, Answered
When someone loses their mental capacity due to age, illness or injury, they may become unable to take care of themselves or make important decisions on their own behalf. In such situations, a family member or other trusted person may need to assume guardianship. This process is both emotionally and legally complex, and it is very understandable to have questions. At Jurist Law Group, PLLC, our experienced and caring attorneys are ready to provide answers and guidance. On this page, we’ve answered common questions you may have about guardianship. If you still have questions, we invite you to contact us to schedule an initial consultation.
What is adult guardianship?
Adult guardianship is a legal structure that exists to help people who can no longer attend to their own daily needs or act in their own best interest—specifically, people who are considered legally incapacitated. In these cases, another adult is appointed as “guardian” over the incapacitated person (or, “ward”).
There are two types of adult guardianship in Arkansas. One is guardianship over the person, which allows the guardian to make decisions about the ward’s personal safety and health care. The other is guardianship over the person and estate, which gives the guardian more control over decisions pertaining to both the person and their assets/property.
Who qualifies for adult guardianship?
In order to qualify for adult guardianship, a potential ward must be over the age of 18. They must also be experiencing some sort of major cognitive impairment. Common conditions that necessitate adult guardianship include dementia, Alzheimer’s, stroke, advanced age, traumatic brain injuries, and other mental and physical disorders that prevent people from being able to make decisions in their own best interest. Adult guardianship can also cover disabled children who turn 18 but still need their parents to continue as their legal guardians.
What does a guardian do? What are they responsible for?
A guardian takes legal responsibility over an adult ward, which means that they are responsible for making decisions on the ward’s behalf that meet their daily and long-term needs, maintain their physical and financial wellbeing, and protect them from abuse and neglect. The guardian has the power to make medical and financial decisions on behalf of the ward, so long as they are in the ward’s best interest. They are responsible for handling and managing the ward’s affairs and consenting to placement and treatment options for the ward.
There are certain decisions that guardians in Arkansas cannot make on behalf of wards without approval from the Court. This includes decisions like preventing medical professionals from attending to the ward, transferring business ownership, terminating parental rights over a minor, and major property acquisitions or purchases, among other things. Every year, the guardian is required to file an annual guardianship report to the court describing the current health, mental, social and physical condition of the ward and the need for continued guardianship. If also guardian of the estate, the guardian is further required to file an annual accounting of the guardian’s management of the ward’s estate. Both reports are reviewed and approved by the court. The court may request the guardian to appear before the Court in a hearing to review the guardian’s management of the ward and his or her estate. As a part of that hearing, a Probate Judge will go over the actions of the guardian and ensure that they are in the best interest of the ward and are not in violation of any laws or Court Orders. If a guardian is found to be in violation, they can be held legally accountable for their actions and for all losses incurred.
Who can be an adult guardian in Arkansas?
Usually, a close friend or family member will apply for a guardianship appointment if the need arises. However, while this is often preferable, it is not a requirement for guardianship. In order to become a legal adult guardian in Arkansas, you must be:
- Over the age of 18
- Of reasonable sound mind and good health
- Not a convicted or unpardoned felon, except in certain situations
If an incapacitated adult needs a guardian and there is no one close to them that meets these qualifications, and/or no one willing or able to take on guardianship, a guardian can be appointed to them by the court.
What is the process of petitioning for adult guardianship in Arkansas?
The Arkansas guardianship process generally follows the following steps:
- Recognition of need: The guardianship process starts with recognition of the need for a guardian over a potential ward.
- Selection of guardian: Once it is recognized that a potential ward needs a guardian, someone must be willing to step up and serve as guardian. Ideally, this should be a close friend, family member, or loved one with as few conflicts of interest as possible.
- Filing a petition: Guardianships are appointed by court order, which you can seek by filing a petition to the court in Question. In this case, the petition to file is called a Petition for Appointment of Guardian of the Person and Estate, and the court to file it with is probate court. Filing this Petition will officially involve the Court in the matter. The case will need to be evaluated by the assigned Judge to decide if the potential ward is indeed impaired or incapacitated such that appointment of a guardian would serve the best interests of the ward.
- Professional evaluation of the ward: Before a guardianship becomes finalized, you must arrange for or have a professional evaluation of the potential ward. This evaluation should be conducted by a physician or in combination with other appropriate licensed professions such as an advanced practice nurse or psychologist. The professional conducting the evaluation must accurately and objectively describe the condition of the potential ward within their scope of practice, and may issue a recommendation on whether or not the potential ward is sufficiently impaired to warrant a guardian.
- Guardianship hearing: All potential guardianships must go through a Probate Court hearing. The assigned Judge will hear and consider the facts of the case and all evidence and arguments submitted. If the potential ward is resisting guardianship for whatever reason, they will have the opportunity to make their case before the Probate Judge during this hearing.
- Guardianship court order: At the end of the hearing, the Judge will decide whether or not to issue a Court Order for guardianship of the potential ward.
If the court agrees with the petition, they will grant an order officially appointing the prospective guardian. That person will then be responsible for managing the ward’s affairs and making an annual accounting of what they do for the ward each year to the court. If the court does not agree with the petition, they will not issue an order. In that case, the petitioners have the right to appeal that decision to a higher Court.
Are there any alternatives to guardianship? How do I avoid needing adult guardianship in the future?
Yes, there are alternatives to adult guardianship, which our attorneys can help you pursue. Many of these measures should be established in advance of a person’s need for guardianship, as part of standard estate planning. They include:
- Power of Attorney: One way to avoid guardianship is by setting up a document called a power of attorney. This document will grant a trusted friend or loved one the ability to make decisions on your behalf in the event that you become incapacitated. You can opt to include a Health Care Power of Attorney, which gives that person the ability to make medical decisions, a Financial Power of Attorney, which gives that person the ability to make decisions about your finances, assets, and property, or both. In cases where Powers of Attorney have already been established, there is usually no need to appoint a guardian.
- Trusts: If you want to avoid the need for a financial guardianship, you can utilize a trust. A trust is a legal vehicle that can hold and legally “own” your assets, as managed by a trusted third party (a “trustee”). If you put your assets into a trust, you are far less likely to need financial guardianship at any point.
- Joint Assets: Another way to avoid the need for financial guardianship is to hold joint assets, or placing all your assets in accounts that are owned jointly by you and another person. Usually this is done with a spouse, but it can be done with anyone close to you. This prevents you from needing a guardian to manage your accounts for you, since there is already someone who is legally allowed to do so.
Putting these measures in place now is likely to be far easier, cheaper and less stressful than going through the guardianship process after someone has already become incapacitated.
What are the benefits of hiring an attorney to help me handle an adult guardianship?
Technically, it is not legally required to hire an attorney to handle an adult guardianship case. However, it is very highly recommended to have an attorney working with you throughout the process, ideally from the beginning of the case. The standard of proof for the appointment of a guardian is the same whether you have an attorney or not—meaning that they require you to meet the standards an attorney could meet, whether or not you have one.
Petitioning for the appointment of an adult guardian, and then actually serving as an adult guardian, is hard in any case. No one wants to surrender their independence, and no one wants to take away the independence of a loved one. Hiring an attorney can make the process far easier and ensure that basic errors aren’t made in the process that might complicate things down the line. They can assist you from start to finish, from filing the initial Petition and finding a reliable medical expert to representing you in Court, helping you observe your fiduciary and legal obligations, and helping you with your annual accounting.