WHAT IS A GUARDIANSHIP IN FAYETTEVILLE?

There May Come A Time When You Must Consider Whether Someone You Care For Needs Help Seeing to their Personal Affairs; Knowing What A Guardianship Is And What Is Required To Establish One in Arkansas Will Help Make Your Decisions Easier

DEBORAH SEXTON
ARKANSAS ESTATE PLANNING ATTORNEY

There may come a time when you must consider whether someone you care for needs help seeing to their personal affairs. If that time comes, it helps to understand exactly what your options are. It may be that having a guardian appointed is the best option. If so, knowing what a guardianship is and what is required to establish one in Arkansas will help make your decisions easier. A guardianship requires a court proceeding where an individual is appointed as the guardian to make decisions for the ward. The court may authorize the guardian to control the wards property and finances or control over the ward himself. Depending on the situation, the guardian may be given control over both. Courts have very broad discretion over who is appointed. However, a spouse, adult child, parent or sibling is usually the most likely candidate. Some courts will take into consideration any preference the ward may have as to who is appointed.

INCAPACITY DETERMINATION
The first step in the process is for the court to determine whether the would-be ward is incapacitated. Incapacity means the inability to make proper decisions for ones self. The inability may stem from a disability, cognitive impairment, chronic drug or alcohol use or any other various other medical conditions. Incapacity can also be either temporary or permanent.

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WHAT ARE THE DUTIES OF A GUARDIAN IN ARKANSAS?

The primary duties of a guardian are to manage the welfare and safety of the ward. This may include both financial and personal needs. It is the guardians responsibility to protect the ward and his or her assets. The guardian is not free to do whatever he or she chooses, with regard to the ward or the wards property. Instead, the guardian is required to file a petition with the court in order to obtain written permission before making certain important decisions. For example, the decision to withhold life-saving medical treatment requires a court order, as does terminating parental rights. The guardian is also required to make annual reports to the court as to the status of the ward and the wards affairs.

ADVANTAGES OF A GUARDIANSHIP IN ARKANSAS

There are several advantages to establishing a guardianship. One of the most important is court supervision. The guardian appointed by the court will remain under the courts supervision and control during the entire term of the guardianship. Court oversight means the ward

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is afforded greater protection from breach of fiduciary duty or mismanagement of funds. Another benefit is that the person chosen as guardian will have a level of authority, because they are court-appointed, which becomes useful when dealing with others on the wards behalf.

DISADVANTAGES OF A GUARDIANSHIP IN FAYETTEVILLE

Due to required court supervision, a guardianship can become a rather costly process. Another disadvantage is the fact that the process is open to the public. That means the wards personal information, including the nature of his or her disability or incapacity and financial affairs will become public knowledge, which may result in embarrassment. The greatest disadvantage to most people is the loss of power and autonomy over many important aspects of their lives. For many people this can be very humiliating and depressing. There are less restrictive and more cost effective alternatives that can be considered.

WHAT ARE THE ALTERNATIVES TO

GUARDIANSHIP?
A guardianship is a serious legal process that results in the stripping away of a persons ability to make decisions for themselves. A guardianship is not appropriate simply because you may not agree

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with or understand a decision your loved one has made. Nor should a guardianship be considered solely based on a particular medical diagnosis. If a less restrictive option is available that will provide the required protection and assistance, that alternative should always be considered first. A durable power of attorney is an example of a less restrictive option that may be a better choice. A durable power of attorney can be drafted by an estate planning attorney to fit your specific needs and the process is much less expensive. Some other examples of feasible alternatives include joint bank accounts, revocable living trusts, protective orders, durable financial powers of attorney, or advance directives for health care. There are actually several formal and informal estate planning tools that are available to protect a persons assets without the necessity of declaring them incompetent. Unfortunately, if your loved one is at the point where he or she can no longer understand a legal document, he or she may be incompetent and no longer able to legally execute a power of attorney. In that case, a court-appointed guardian may be required.

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HOW WILL I KNOW IF IT IS TIME TO

CONSIDER A GUARDIANSHIP FOR SOMEONE?
The first sign of impending incapacity or mental impairment is often loss of memory. For instance, if your loved one is getting lost on the way home, leaving food cooking on the stove, forgetting to take their medication, it may be time to consider how to care for them. Mental impairment can stem from many things, including age, infirmity and even long-term effects of certain medications. Incapacity can also be temporary, depending on whether the medical condition causing it can be treated or cured. Regardless of the cause, it is imperative that the problem is not allowed to progress to the point that they become a danger to themselves or others. The best course of action would obviously be to take care of your loved one informally, with the help of family and friends. But, sometimes more formal management or control is needed. Discuss your situation and your concerns with an estate planning attorney so you can choose the plan that is best for you and your family.

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About the Author

Deborah K. Sexton
As the sole attorney in the Fayetteville law firm of Deborah Sexton Law Office, Deb oversees a practice devoted to providing clients with the best in estate planning. Deborah Sexton, C.P.A., J.D., L.L.M., combines an extensive background in accounting with a wide range of legal experience to provide her clients with a uniquely practical perspective. An attorney since 1983, she now devotes her practice primarily to estate planning and elder law. EXPERIENCE After obtaining her undergraduate degree in accounting from Abilene Christian University in Abilene, Texas, she worked in Dallas in public accounting for several years, and then went to the University of Arkansas Law School in Fayetteville. Upon graduating from law school, she went on to obtain an L.L.M. degree in Taxation from New York University. Deborah Sexton Law Office www.arkansas-estateplanning.com 2766 Millennium Drive Fayetteville, AR 72703 Phone: (479) 443-0062 Fax: (479) 443-2001

An Arkansas Estate Planning and Trust Information Center

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