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!