Guardianship Overview
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GUARDIANSHIP: If you become mentally incompetent someone must take care of your property and your personal affairs. You must be proved incompetent in a Public Hearing. This can be a financially costly, be time consuming, and be a humiliating experience.
WHAT IS GUARDIANSHIP?
Generally, guardianship is where one person makes personal and financial decisions for another. When a person needs assistance in making decisions about finances and/or property and/or medical treatment, guardianship is used.
IS A CONSERVATORSHIP THE SAME AS A GUARDIANSHIP?
No. A conservatorship is created when an individual consents to allowing a person to handle his estate without being declared incapacitated. The person giving up his rights must fully understand the process and its ramifications.
HOW DO YOU BECOME A GUARDIAN?
- Hire a lawyer and file a petition with the court.
- The person to be placed under guardianship (ward) must be evaluated. The cost of the evaluation is determined by who prevails.
- There must be a notice of hearing and the proposed ward must be told of his rights in court. An important right is to be represented by a lawyer.
- Hold a public hearing to determine if the proposed ward needs a guardian.
- A Judge appoints a guardian if one is needed.
WHO IS GOING TO BE APPOINTED GUARDIAN?
The court should give preference to a person nominated by the proposed ward or the ward's spouse. However, the judge can choose anyone over 18 who is an Arkansas resident and is not a convicted felon.
IS THE GUARDIAN FREE TO DO WHAT HE WISHES AFTER HE HAS BEEN APPOINTED?
No. He must make an accounting each year. In addition, other reports regarding the health and well being of the ward must be made.
DOES JOINT TENANCY AVOID A GUARDIANSHIP HEARING?
No. If you hold property in joint tenancy and you want to sell the property or borrow money against it, all owners must sign the paperwork. For example, if one of the other owners becomes incapacitated, you must go through the guardianship hearing, have a guardian appointed, and hope that the appointed guardian agrees with what you want to do with the property.
DOES A WILL AVOID A GUARDIANSHIP HEARING?
No. A will only takes effect upon your death.
DOES A TRUST AVOID GUARDIANSHIP?
Yes. In the trust you should have already given instructions to how you want your finances taken care of if you become incapacitated. In addition, you get to pick who is going to watch over you. There is no need for evaluations, lawyers, judges, and public hearings.
© 2000 Estate Planners of Arkansas, P.A.