Note: Marie’s story is a fictional scenario presented to illustrate how an appointed Guardian can help protect vulnerable adults.
Introduction
In this article, we will define Guardianship and outline the key differences between the two kinds: Guardian of the Person and Guardian of the Estate. We will also discuss how each is relevant to protecting vulnerable adults.
It’s crucial for individuals, their family members, and their caregivers to understand Guardianship and to seek legal advice to determine what arrangement is most appropriate.
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 term used to describe these legal arrangements, which can be either permanent or temporary. Guardianship can often be confused with Conservatorship. You may have heard about Conservatorship in the news when the Brittany Spears dilemma came about. In Arkansas, we do not technically have Conservatorship. We only have two kinds of Guardianship: the Guardian of the Person and Guardian of the Estate.
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 daily care related to the ward’s well-being. The “ward” is the elderly adult for which a Guardian is sought.
The Guardian of the Person must regularly report to the court about the elderly adult’s condition and the decisions made on their behalf. This communication with and oversight by the court is essential to ensure that the elderly person’s best interests are being upheld.
A Guardian of the Estate is responsible for managing the financial affairs of the elderly person. This includes tasks such as paying bills, managing investments, and handling other financial matters. Guardianship of the Estate requires regular reporting to ensure transparency and accountability in managing the elderly adult’s finances.
Who Can Be Appointed?
Anyone can be appointed as a Guardian for a person in need, except for those specifically found ineligible per statute. However, the judge should give preference to immediate family members, and the person chosen should consent to the appointment. The Guardian must also be an Arkansas resident, 18 or older, of sound mind, and neither a convicted nor pardoned felon.
It is possible one person can fulfill both roles: the Guardian of the Person and Guardian of the Estate. This is called a Plenary Guardianship. Alternatively, the court can appoint two different people, if that is the preferred arrangement.
The Process
The process for getting legal Guardianship in Arkansas generally involves a court order, a professional evaluation of the ward, hearings, a review, and follow-through. If a court order is not issued, your family has the right to appeal the decision. A lawyer can assist you in this process.
How a Lawyer Comes Into Play
A lawyer plays a crucial role in matters of Guardianship. Here are the ways lawyers typically come into play:
- Legal Guidance
This helps people understand the process of establishing Guardianship, the rights of elderly adults, and the responsibilities of those who represent them.
- Petitioning the Court
This is often required. A lawyer can prepare and file the necessary legal documents according to the court’s requirements.
- Representation in Court
This is only applicable in cases of disagreement. A lawyer can represent the individual who is seeking or contesting the appointment. They present evidence and legal arguments to advocate for their client’s position in court hearings.
- Negotiation and Mediation
Sometimes, disputes can be resolved through negotiation and mediation rather than litigation. Litigation involves the process of taking legal action, whereas negotiation and mediation involve reaching a compromise to which both parties can agree. Lawyers can facilitate these discussions to serve the best interest of the individual in question.
- Compliance with Legal Requirements
Once Guardianship is established, a lawyer can fulfill the ongoing legal requirements. One example is filing annual reports with the court.
- Protecting the Ward’s Rights
In Guardianship cases, the ward’s lawyer ensures that the proposed arrangement is necessary and appropriate, and that the Guardian acts in the ward’s best interest.
- Addressing Abuse or Neglect
Unfortunately, elder abuse and neglect are a real possibility. A lawyer can advocate for the removal of an abusive or neglectful Guardian and take legal action to protect their client.
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!
