Over five million (5,000,000) Americans suffer from dementia. This serious loss of brain function hinders the ability of seniors to care for themselves and make sound decisions. In these cases, a guardianship may be necessary to protect their quality of care, assets and legacy.
Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian or custodian. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a senior who is no longer able to make safe and sound decisions about his or her own person or property, or who is prone to fraud or undue external influence.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
In order to safeguard the protected person’s right to due process, he or she is usually provided with notice and is entitled to attend all legal proceedings related to guardianship. In most cases, the proposed ward will need to be notified ten (10) days before a hearing before a judge. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities:
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Maintaining the protected person’s autonomy as much as possible
Guardianship of the Estate or Property
Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
Arkansas Guardianship Process (Step by Step)
Here is a brief outline for an uncontested guardianship in Arkansas. We hope it gives you an explanation of the process and ease some of the stress of the legal process.
1. Questionnaire: Client completes initial guardianship questionnaire online or paper copy.
2. Consultation: Schedule an office visit or phone call.
3. Legal Services Agreement and Retainer: Client will sign our Legal Services Agreement (LSA) and retain our services.
4. Petition: Attorney will draft the initial petition; Client will review and sign. It is usually drafted within 24-hours of the Consultation.
5. Case Filed: Your signed Petition is filed and assigned to a judge.
6. Hearing Setting: Our office will schedule a temporary or permanent hearing. If the case is uncontested, there is no need for a temporary hearing, and we will request a ten (10) minute final hearing. The hearing will be at least twenty-five (25) days after the filing of the case. The guardianship statute requires we serve the proposed ward twenty (20) days before the hearing. Hearings are based on availability. Every judge’s docket is different, but uncontested guardianships are often the easiest hearings to set.
7. Notice, Waivers, and Professional Evaluation: Prior to the hearing we will have family members sign Waivers consenting to the guardianship, the proposed ward will be noticed by a process server, and the treating physician will complete a Professional Evaluation.
8. Hearing: Most hearings last less than ten (10) minutes. In Pulaski County, hearings start at the time scheduled. That is, 9:00AM hearing starts at 9:00AM. In other counties, the court will have multiple cases scheduled at 9:00AM, which means you may have to wait all morning to be heard.
9. Letters of Guardianship: The judge will sign an Order Appointing Guardianship, you will sign an Acceptance of the position, and then the clerk will issue Letters of Guardianship on the day of the hearing. You will use the Letters to transact business and handle decisions on behalf of the ward.
The process outlined above is for a typical guardianship. Please note that individual results may vary. Our law firm routinely works with seniors and their loved ones to determine the best course of action, file the required paperwork and represent them in proceedings with the appropriate administrative agencies. We can also work with the guardian to assist them with the responsibilities and duties (such as annual accountings) if necessary.
If you believe your loved one may be in the need for a guardianship call (501) 834-2070 or complete our initial questionnaire online.