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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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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.
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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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