How Do I Become Someone’s Guardian?

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August 6, 2018

Guardianship vs Power of Attorney decision img

Last week, we opened the discussion of which would be better to have for an incapacitated Loved One – Power of Attorney or Guardianship. This week, we will continue that discussion; focusing primarily on guardianships.

A guardianship is not something you obtain just by going to see an attorney. You can only be appointed as a guardian over a person by following the requirements of Arkansas law. We will discuss just a few of those requirements in this blog post. For the truly interested (or the truly bored) you can go to A.C.A. § 28-65-101 to read the Arkansas guardianship statutes. Just click on the link to go to the first statute, then when ready, click next to go to the next one.

A Guardianship is Not Fun!

Just know that a guardianship proceeding is not fun. You start the process by having your attorney file a Petition for Guardianship in Circuit Court. The incapacitated person that you are attempting to obtain a guardianship for (referred to as the ward) must be served as provided by Arkansas law to be notified of the proceeding. Why this formality – because this is a very serious process. With this process, you are stripping someone of all of their rights. You, the guardian, will have the rights to make all of the decisions for the ward; and they will no longer have the right to make any decisions for themselves.

You should now understand why judges take this process so seriously. It is a big step to remove someone’s rights. That’s why this process requires a hearing in Circuit Court and requires proof that the proposed ward actually is incapacitated.

Accountability to the Court

The good news (or bad, depending on how you look at it) is that a guardian can’t just do anything that he or she wants. They must first obtain permission to act by Petitioning the Court; appearing at another Court hearing to explain why you are seeking approval to complete whatever action.

If time is of the essence, appearing in Court each time you need to act can really slow things down. Even worse, the Judge may not see things your way and may say NO! This can really throw a wet blanket on your ability to take actions to care for your declining Loved One.

Why would I Need a Guardianship?

Typically a person obtains a guardianship in a declining parent or spouse situation when your aging Loved One has lost capacity to reason and you are seeking to act on their behalf. Usually this occurs when your Loved One has Alzheimer’s or dementia and can no longer make appropriate decisions without assistance. Sometimes the need for a guardianship is urgent. For example, if your Loved One is taking actions that may be dangerous to themselves or to others. In these situations, an Emergency or Temporary Order must be obtained immediately. The Petitioner can then take actions to keep their Loved One safe.

What’s the Alternative?

If a guardianship is so restrictive, is there any way to avoid this process completely? Yes and we talked about it last week in our blog post entitled Power of Attorney vs. Guardianship. A guardianship can usually be avoided by doing a good Power of Attorney. In fact, most people who have to go to Court to obtain a guardianship wish that their Loved One had a Power of Attorney. The problem is now that they no longer have the capacity to sign a Power of Attorney because they have lost the cognitive ability to sign legal documents due to their advanced Alzheimer’s or dementia. In these situations, a guardianship proceeding may be the only option.

Nursing Home Challenges

Many times this situation comes to light when the Senior suffers a health challenge, is admitted to a hospital, then needs to go to a Nursing Home for rehabilitative care. If your Loved One then needs to move from rehab to a private pay room and you need to apply for Medicaid to help pay their Nursing Home expenses, a power of attorney may allow you to take actions on their behalf. For more information as to how the Medicaid process works, read our blog post entitled Getting Medicaid to Pay.

A well drafted Property of Financial Power of Attorney and Health Care Power of Attorney will often be all you would need to take actions on their behalf without having to go through the restrictive, costly and humiliating Court process briefly outlined above. For a brief comparison of the Guardianship Process vs. Powers of Attorney, download our Power of Attorney vs. Guardianship Comparison Sheet today.

If don’t have a good Property and Health Care Power of Attorney, contact your Elder Law Attorney today and get this done. Please don’t procrastinate on this decision – when you lose capacity, it’s too late!

At ELP, we work to protect you!

We work with people to do various types of estate planning. There is no one size fits all plan and no plan is categorically better than others. The key is to meet with your attorney (hopefully us!) to discuss your unique situation and have a plan crafted that is best for you. If you or your declining parent is not 100% sure of their beneficiary designations, please be proactive and give us a call before you (or they) lose capacity.

Without a properly flexible plan, how will you care for your declining Loved One, be there for your family, get work done, and pivot in the event of a crisis? What about cost? How will you pay for it all? If you make the Assisted Living Facility choice, how long will the money last? Together, we can craft a proactive plan! Lets get started protecting your assets!

Arkansas Newsletter

If you (or someone you know) are from Arkansas and would benefit from more information like this, click the button below to sign up for our free Arkansas Newsletter by going to https://elp.legal/arknews.

ELP YouTube Channel

Speaking of trends, subscribe to our YouTube Channel. We have a few hundred videos there for your watching enjoyment. Videos are categorized by playlist. You should easily be able to find several videos that discuss exactly what you are looking for. The best part about this is not only is this some really good content, but it is free! There’s even a video specifically addressing Revocable Living Trusts!

Just click here to go to The Elder Law Practice You Tube Channel. Please remember to subscribe! When you click the notification bell, so you will be notified of our latest video launches. If you have video ideas, please type them in the comment box. Thanks for watching!

Disclaimer

We have covered some legal topics in this edition and as always, I want to emphasize that (1) the law is different in every state, so if you live in a state other than Arkansas, just know that the law may be totally different in your state; (2) your situation is unique, so one size doesn’t fit all – meaning what we discuss herein may not be right for you; (3) we have purposely over-simplified many of the topics above (otherwise this would be many pages long and unreadable because of all of the legalize). It is imperative that you meet with your attorney (hopefully us!) and get a plan that will work for you. Don’t try to plan based on what you read in this (or any) article AND don’t try to go it alone. Please consider this, get your questions answered and take action.

About the author 

Doug Jones

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