Guardianship: When It’s Needed and What to Expect
Guardianship can be a wonderful way to allow a caregiver to take care of someone who is not able to take care of themselves. However, because it effectively takes away Constitutional rights and autonomy by giving someone’s power over their own life choices and/or finances to a court-ordered caregiver, it can be a long and daunting legal process.
Guardianship can help provide care for a minor child who is not emancipated, or for an adult who is incapacitated. “Incapacitated” means that the person is legally incompetent to manage their own healthcare, safety, or financial matters due to an illness, injury, or disability, such as a severe mental illness or intellectual disability that makes the person unable to care for themself independently. The person who will be under the guardianship of a caretaker is called the “Ward.”
The four main requirements to become a guardian in Arkansas are: being legally competent yourself, being 18+ years old, living within the state of Arkansas, and not having any un-pardoned felonies on your criminal record. Two people cannot be “co-guardians” unless they are married; for example, the married parents of a child with special needs can be appointed co-guardians of their child, so that they are both still able to make medical and financial decisions for their disabled child after the child turns 18 years old. However, unfortunately, under current Arkansas law two siblings cannot be appointed as co-guardians of a parent with Alzheimer’s disease, even if they both do a lot to help take care of their parent.
To get a guardianship, your lawyer will file a Petition with the court explaining the need for the guardianship, often accompanied with medical records that are filed under seal and out of public view, explaining the Ward’s limited mental capacity. If the case is an emergency, such as when someone suffers a traumatic injury or children are removed from a dangerous home situation, the Judge may enter a temporary emergency guardianship, allowing the temporary Guardian to step in for a limited time to take care of the Ward, such as arranging necessary medical care. Temporary guardianships can only last a maximum 90 days, but can be helpful to allow the caregiver to provide necessary support to the Ward while the full Permanent Guardianship is pending. The court will usually have at least one hearing to set up the Temporary Guardianship and at least one hearing for the Permanent Guardianship. There are several other steps involved, but if the case is successful, the Guardian will be appointed and need to file an annual report every year with the court regarding their management of the Ward’s person and/or property.
Guardians are held to high standards and required to act in the Ward’s best interests. A Guardian needs the court’s written permission before making some very big decisions such as withholding life-saving medical treatments, terminating visitation or parental rights, or stopping the Ward from voting or getting a driver's license. If someone suspects that the Guardian is self-dealing or acting contrary to the Ward’s best interest, the Guardian can be sued and face civil and criminal penalties — though this is rare of course, due to most people becoming Guardians out of genuine love and care for an incapacitated family member.
If you think a Guardianship may be needed for someone you love, please give us a call or text for a free consultation, and we’ll be happy to help however we can.
