When one person is given control over another person, it is referred to as a guardianship. A guardianship in Arkansas can only be established through a court order. A guardianship can give control over the ward himself, the ward’s property, or both, depending on what is needed. Each state has its own laws and procedures for establishing a guardianship.
Incapacity must first be established
A court will only approve a guardianship when it is shown that the proposed ward is incapacitated. This requires a showing of a disability, mental or physical illness, chronic drug use, or some other condition or situation that makes him or her incapable of managing health, safety or financial matters. This is a very important determination and mismanagement of money is not typically sufficient to establish that a guardianship is required.
How to obtain a guardianship
There are basically three steps to obtaining a guardianship over a loved one. First, a petition must be filed with the court requesting an order of guardianship. Second, a professional will perform an evaluation of the individual for whom the guardianship is needed. Finally, after the evaluation has been completed, the court will conduct a hearing in order to make a determination. If the court agrees that a guardianship is needed, an order will be entered to establish one.
Step 1: Filing the Petition
The first step to having a guardianship established is to file a petition in the court of the county where the proposed ward lives. Notice that a petition for guardianship was filed must be given to the ward, along with notice of when the hearing will take place. The notice should also inform the ward of his or her rights with regard to the guardianship proceedings.
Step 2: Professional evaluation
If the ward has recently been evaluated by a professional, meaning within six (6) months of the scheduled hearing, then the report from that professional can be used by the court to determine incapacity. If that is not the case, the court will order that an evaluation be performed. The type of professional required is typically a physician, psychologist, and/or social worker, depending on which aspects of the ward’s abilities are being evaluated. A report of the findings will be provided to the court before the hearing.
Step 3: Guardianship hearing
The ward has the right to have an attorney represent him or her. The attorney can present evidence, cross-examine witnesses and have another professional perform an evaluation as well. After considering all of the evidence presented, the judge will decide whether the ward is incapacitated. Unless the judge determines an alternative arrangement would be better, the guardianship will be ordered.
Obtaining the guardianship order
Ultimately, the judge will issue an order to the appointed guardian, explaining the authority the guardian has over the ward and/or the ward’s property. “Letters of Guardianship” will be provided to the guardian by the court clerk. These letters are required so that third-parties will recognize the authority of the guardian to take care of the ward and his or her affairs.
If you have questions regarding guardianship, or any other incapacity planning issues, please contact Wilcox Attorneys, PA online or by calling us at (479) 443-0062.
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