The time may come when you have to decide whether a loved one needs to relinquish control of their personal affairs to someone else. When that time comes, it is good to understand what a guardianship is, and what it takes to establish one in Arkansas. A guardianship in Fayetteville Arkansas requires a legal proceeding where the court appoints an individual, known as the guardian, to serve as the decision maker for the person in need, known as the ward.
The court may give the guardian control over the ward’s property, over the ward or both, depending on the circumstances. Courts generally have broad discretion in deciding who the guardian should be. Usually a spouse, adult child, parent, brother or sister is the most likely candidate. The court can also take the preferences of the ward into consideration, if that preference is known.
Legal proceedings are required.
The first issue to be addressed in the legal proceeding is whether the would-be ward is actually incapacitated. This means that the individual is unable to make proper decisions, whether because of a disability, cognitive impairment, chronic drug or alcohol use, or any other condition that makes him or her unable to take care of themselves. Since the implications of a determination of incapacity are very serious, a guardianship should only be sought when truly necessary.
What does a guardian in Fayetteville Arkansas generally do?
It is important to understand that a guardian is never free to do whatever he or she wants with the ward or with the ward’s property. The guardian’s job is to protect the person and their assets. In fact, the guardian must file a petition with the court and obtain written permission before making many decisions, such as withholding life-saving medical treatments or terminating parental rights. The guardian may also be required to make reports to the court regarding the status of the ward and his or her affairs.
The duties of a guardian are essentially to oversee the welfare and safety of the ward, including attending to their financial needs. A guardian has a “fiduciary duty” to act in the best interests of the ward. A guardian decides how to spend the ward’s money, where the ward will live and the medical treatment the ward will receive.
What are the alternatives?
A guardianship in Fayetteville Arkansas should not be sought simply because a person makes a decision that others do not completely understand or agree with. Nor should a guardianship be sought because of some particular disability or medical diagnosis. Appointment of a guardian strips the ward of the ability to make their own decisions. If a less restrictive alternative is appropriate, and still provides the protection needed, that alternative should be considered first.
Examples include joint bank accounts, revocable living trusts, protective orders, durable financial powers of attorney, or advance directives for health care. There are actually a wide variety of formal and informal tools available to protect a person’s assets without the necessity of declaring them incompetent.
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