A judge decides guardianship in Arkansas by what they think is in the ward’s, or incapacitated person’s, best interests according to state law. They arrive at this conclusion by carefully weighing many factors, including whether the ward is genuinely incapacitated, reasons for establishing guardianship, guardianship qualifications, the preferences of interested parties, and professional evaluation results.
In this post, an estate planning attorney discusses the considerations that a judge makes when deciding on guardianship as outlined in Arkansas Codes, as well as legal alternatives to guardianships.
What is Incapacitation?
The ward must meet the definition of incapacitation for someone to get legal guardianship of them. An incapacitated person is defined as a person who is impaired by a disability, including psychological issues, mental impairments, physical illness, or chronic drug or alcohol use to the extent that they lack the ability to communicate or make decisions necessary for their health and safety.
Ark. Code § 28-65-104 also defines an incapacitated person as the following:
- Persons under age 18 with disabilities; or
- Persons detained by a foreign power or who have disappeared; or
- Persons under age 21 who:
- Have reached 18 years of age; and
- Have a guardianship established based on minority; and
- Agree to allow the current guardianship to continue up to age 21; and
- Receive a guardianship subsidy
How is Incapacitation Determined?
Determining the qualifications for incapacitation is one of the more challenging aspects of establishing guardianship. Under Ark. Code § 28-65-211, the judge will need to see medical evidence of the ward’s incapacitation. You can provide evidence in the form of oral or written sworn testimony by a qualified medical professional. In some cases, judges will want the medical practitioner to appear in person for the examination.
The evaluation will include the following assessments:
- Medical condition
- Physical condition
- Adaptive behavior
- Intellectual functioning
- Professional recommendations
Reasons for Establishing a Guardianship
Guardianship may only be requested for lawful purposes. Per Ark. Code § 28-65-105, guardianship is to be used for promoting and protecting the wellbeing of the ward and encouraging maximum self-reliance. In addition, guardianship is only ordered to the extent necessary. For example, if the incapacitated person can communicate but needs assistance, the court may include a limitation of the guardian’s powers in terms of decision-making. The medical evaluation and assessment results will help the judge determine the extent to which the respondent needs the help of a guardian.
What are the Qualifications to Be a Guardian?
Per Ark. Code § 28-65-203, guardians must meet specific legal qualifications to be considered for a guardianship appointment. Essentially, a guardian must be a person aged 18 or older, live as a resident in the State of Arkansas, and be of sound mind. A guardian also cannot be a convicted or unpardoned felon.
Appointment Preferences
The judge will also consider the family dynamic when deciding on guardianships in Arkansas, including appointment preferences. While any family member can voice their interest, there are laws that the judge must follow.
If multiple family members qualify for guardianship and want to serve, Ark. Code § 28-65-204 lays out court preferences when it comes to appointments. These preferences include:
- Either of the respondent’s parents
- Persons named in a will
- The respondent’s preference
- Spouses of the incapacitated person
- Blood relationships
- Marriage relationships
The court will consider family relationships established by marriage if no other blood relatives qualify or want to serve as guardian. While the court allows the incapacitated person to express their wishes, the court doesn’t require them to appear in court to indicate their preference.
Alternatives to Guardianship in Arkansas
Guardianships are not the right choice for every situation or family dynamic. Fortunately, there are alternative measures that may work better for everyone.
Here are three alternatives to guardianship in Arkansas:
- Power of Attorney: A power of attorney is the transfer of legal rights and authority from one person to another. Power of attorney can be worded so that it becomes effective upon incapacitation.
- Conservatorship: Conservatorships in Arkansas are similar to guardianships, but are established when the ward is competent. This means that there are no professional evaluations required.
- Living Trust: A revocable or “living” trust can be established to hold an elderly person’s assets, with the trustee being a relative, friend, or financial institution that will assume duties in the event of incapacitation.
Regardless of your situation, it’s vital to get advice from an attorney. There may be a better legal solution than what is presented here. If you do find that guardianship is the best option for your family, an experienced estate planning lawyer can help you handle the legal requirements and proceedings.
Get Help from Milligan Law Offices
How a judge will respond to your case is never guaranteed. If you believe that obtaining guardianship for your loved one is right for your situation, or if you’d like to learn more about other options for your family, speak with an estate planning lawyer in Arkansas. Call Milligan Law Offices now at (479) 783-2213 or contact us online to schedule an initial consultation.
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