What Does Adult Guardianship Mean in Arkansas?
If you’re under 18 in Arkansas, you’re considered a minor, so adult guardianship only applies to those who’ve reached the age of majority. You’re an adult, 18 or over, but you have limited capacity to make your own decisions about your life, typically due to some form of cognitive impairment, then you may need a guardian to make decisions for you. Adult guardianship can cover disabled children who turn 18 but still need their parents to continue to be their legal guardians due to mental incapacity, though in my practice, I don’t typically see young adults. Instead, I see parents who’ve ended up with cognitive dementia or some sort of advanced medical illness that prohibits them from being able to make decisions for themselves as they’ve gotten older. Whether it’s due to a stroke, a debilitating illness, dementia or just advanced age, they can no longer manage their own affairs.
These situations are a big part of my practice. I work with a lot of children in their 40s, 50s, and sometimes 60s who are becoming guardians of their senior parents because of advanced age issues. They need a guardian to manage their affairs and to consent to placement and treatment options for their parents.
What Is the Process of Petitioning for Adult Guardianship in Arkansas?
The process starts with someone who is willing to step up and be the guardian for a loved one. Typically, what that involves is a petition to the court, along with a medical affidavit from a physician, an advanced practice nurse, or a psychologist describing the conditions of the proposed ward or the person who needs to have a guardian regarding their mental and physical capacity that would warrant them having a guardian. Then, of course, it involves a court hearing and an opportunity for the person who needs a guardian to appear in court or to have an attorney to represent them, should they object to the guardianship.
Objections to an adult guardianship are not that common. If a person is in the position of needing a guardian to begin with, they have limited capacity to fight a guardianship because it’s obvious that they need one. Most of the time when our parents end up with advanced dementia or any sort of moderate level of dementia, it’s clear to them that they need a family member to help make decisions for them. In those situations, a petition to the court along with an affidavit from a physician will usually qualify the family member to be the guardian for their loved one.
And then, if the judge is in agreement with the petition, he will grant an order to the family member to be the guardian. That guardian will then be responsible for managing that person’s affairs and making an annual accounting of what they do for that person each year to the court. Of course, my practice assists people in that endeavor, from start to finish, meaning we continue to work with our clients to prepare those annual reports so they don’t have to on their own if they don’t want to.
What Can I Do Now to Avoid Needing an Adult Guardianship in the Future?
There are a couple of ways to avoid needing an adult guardian. The first way is through a power of attorney, that most important document that I’ve mentioned before. If you have a power of attorney, one for finances and another for healthcare, or one with combined power that includes both of those, you can avoid most guardianships over a senior parent because they’ve already given you the authority to make decisions for them. The reason we have a guardianship, typically, is because no one was granted the power of attorney previously, meaning there was no one who could step into their shoes to make decisions for them. The power of attorney can make personal health decisions. The only way to make personal health decisions without a power of attorney is to have the next of kin decide, but that can get messy. Overall, the power of attorney is the most important document to avoid guardianship later in life.
There are two kinds of guardianships. One guardianship is for the person only and another guardianship is typically for the person and estate. The only real way to avoid guardianship over the person to make personal health decisions is through a power of attorney. To avoid guardianship over the estate, you could have a power of attorney over finances or you could put estate assets into a trust managed by a trustee. If you have a trust that’s managing a person’s finances, generally speaking, that will avoid having to have a guardian appointed to manage your financial affairs. It doesn’t, however, always help you with government agencies, so you might still be required to have a guardianship to help manage with government agencies, in addition to a trust.
Finally, there are joint assets. You can hold assets with a person through a joint bank account, which is the typical scenario so that the person who owns that bank account with you can still manage your bank account for you.
In conclusion, we can use power of attorneys, trusts, and joint ownership of assets to avoid guardianships. On rare occasions, we still need a guardian when dealing with government agencies or oppositional and disruptive seniors.
For more information on Adult Guardianship in Arkansas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (501) 550-1114 today.
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