Note: Marie’s story is a fictional scenario presented to illustrate how an appointed Guardian can help protect vulnerable adults.
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In this article, we will define what is guardianship and outline the key differences between the two types: Guardian of the Person and Guardian of the Estate. We will also discuss how each is relevant to protecting vulnerable adults and how the legal process works in Arkansas.
It’s crucial for individuals, their family members, and their caregivers to understand what is guardianship and to seek legal advice to determine which arrangement is most appropriate for their situation.
What Is Guardianship?
When elderly adults are deemed incapacitated and unable to make decisions for themselves, a court will appoint an individual or entity (a “Guardian”) to make decisions on their behalf.
Guardianship is a legal arrangement designed to protect vulnerable adults who can no longer manage their personal or financial affairs independently.
Guardianship can often be confused with Conservatorship. You may have heard about Conservatorship in the news, particularly during the Brittany Spears dilemma. However, in Arkansas, we technically only have two types of guardianship: Guardian of the Person and Guardian of the Estate.
Understanding what is guardianship and the distinction between these two types is critical when considering the best legal arrangements to protect an elderly or incapacitated person.
Key Differences in Responsibilities
A Guardian of the Person is typically responsible for making personal decisions for the ward, such as medical treatment, living arrangements, and day-to-day care related to the ward’s well-being. The “ward” refers to the elderly adult or vulnerable person for whom a guardian is appointed.
The Guardian of the Person must report regularly to the court about the ward’s condition and the decisions made on their behalf. This ongoing communication with the court ensures that the elderly person’s best interests are being protected.
A Guardian of the Estate, on the other hand, is responsible for managing the financial affairs of the elderly person. This includes tasks such as paying bills, managing investments, and handling any other financial matters.
The Guardian of the Estate also has a duty to provide regular reports to the court, ensuring transparency and accountability in the management of the ward’s finances.
Who Can Be Appointed as a Guardian?
Anyone can be appointed as a guardian for a person in need, except for those who are specifically deemed ineligible by statute. However, the court typically gives preference to immediate family members, and the person chosen should consent to the appointment.
To become a guardian, the individual must be an Arkansas resident, 18 or older, of sound mind, and not a convicted or pardoned felon.
In some cases, one person can fulfill both roles of Guardian of the Person and Guardian of the Estate. This is known as a Plenary Guardianship. Alternatively, the court may appoint two different people to these roles if that arrangement is deemed more appropriate.
The Guardianship Process in Arkansas
Understanding what is guardianship in Arkansas involves recognizing that it is a legal process, generally initiated through a court order. The process typically includes a professional evaluation of the ward, court hearings, a review, and ongoing follow-through.
If the court denies a guardianship request, family members have the right to appeal the decision. Seeking legal assistance is highly recommended to navigate the process successfully.
The Role of a Lawyer in Guardianship Cases
A lawyer plays a crucial role in answering the question of what is guardianship by providing clarity and support throughout the legal process. Here are some of the ways lawyers typically get involved:
- Legal Guidance: Lawyers can help individuals understand what is guardianship, the rights of elderly adults, and the responsibilities of a guardian.
- Petitioning the Court: A lawyer can prepare and file the necessary legal documents to petition the court for guardianship.
- Representation in Court: If there is disagreement regarding the appointment of a guardian, a lawyer can represent the individual seeking or contesting the guardianship.
- Negotiation and Mediation: Lawyers can also assist in resolving disputes outside of court through negotiation and mediation, which often provides a more amicable solution.
- Ongoing Legal Compliance: Once guardianship is established, a lawyer ensures that all legal obligations, such as filing annual reports with the court, are met.
- Protecting the Ward’s Rights: In cases of elder abuse or neglect, a lawyer can advocate for the removal of an abusive or neglectful guardian and take legal action to protect the vulnerable adult.
Addressing Elder Abuse and Neglect
Sadly, abuse and neglect of elderly adults can occur even under guardianship arrangements. In these cases, it is essential to understand what is guardianship and how the system is designed to prevent and address such issues.
A lawyer can help remove an abusive guardian and take immediate steps to protect the ward’s rights and well-being.n this article, we will define what is guardianship and outline the key differences between the two types: Guardian of the Person and Guardian of the Estate. We will also discuss how each is relevant to protecting vulnerable adults and how the legal process works in Arkansas.
Marie’s Story
Marie lives alone in the home where she and her husband raised a family many years ago. After her husband passed away, Marie’s son had concerns about her safety in the home. She has dementia, which affects her ability to make decisions about her living arrangements and medical care. Her son was appointed as a Guardian of the Person to ensure her well-being in these aspects. Because he has authority over such decisions, he moved her into a nursing home where there is more support.
In addition to having Guardianship over her medical care and living arrangements, Marie’s son was also appointed Guardian of the Estate. This means that he handles her financial affairs due to her inability to manage them herself. With dementia, she often makes mistakes while reconciling her ledger. Her son can make sure all of her transactions are in order and she isn’t getting charged for unauthorized purchases.
The court oversees Marie’s son in his performance as a Guardian. Meanwhile, Marie has a lawyer to assist with completing legal documentation.
How We Can Help
The Law Offices Of Craig L. Cook can help if you need assistance establishing Guardianship. You can book a free consultation with one of our attorneys for expert legal advice. We even specialize in the practice area of nursing home negligence, which is a common issue in protecting vulnerable adults.
Whether you or a loved one needs to turn over affairs to someone else, we can answer your questions and ensure the best interest of the individual seeking support. Let us represent you— you deserve the best!
