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    An initial consultation, up to one hour, is FREE for general estate planning, estate administration, probate, GUARDIANSHIP or a family law matter if you bring your completed Questionnaire with attachments and all decision-makers attend; otherwise, we charge by the hour.  An initial consultation for long term care planning with Medicaid &/or VA Pension costs $500.  We charge by the hour, in one-tenth of an hour (6 minute) increments, for all time spent on real estate, corporate and other business matters, or for any advice outside the initial consultation when you have not engaged us under a flat fee agreement.  Any quote we give you for a flat fee is binding if we receive all requested information and are engaged to commence work within 30 days.  We accept Visa and MasterCard but assess a 2% surcharge when doing so.  Please come to any initial consultation prepared to pay the initial consultation charge (for Medicaid/VA, real estate, etc.), and/or one-half of any flat fee, or a retainer for hourly work.

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Guardianship

A guardianship is necessary when a person is unable to care for himself either because he is a minor or because some physical or mental condition renders him unable to do so.  Before a court appoints a guardian the court must find that:

  •  the person said to be in need of a guardian (the ward) is incapacitated;
  •  a guardianship is necessary to protect the ward’s interests; and
  •  the person seeking to be appointed guardian is qualified and suitable to act in that capacity.

Two types of guardianship exist in Arkansas – a guardian of the person and a guardian of the estate.  A guardian of the person is one who is granted legal control of another person, physically.  Such a guardianship allows the guardian to make care decisions such as for medical treatment or for general day to day care.  A guardian of the estate is one who is granted legal control over a person’s assets.  Such a guardianship allows the guardian to manage the ward’s property and financial affairs.  Guardianships can be temporary in nature (lasting up to ninety days) or they can be permanent.

 

PERSONS NAMED GUARDIAN

Most often, family members are the ones to seek guardianship over their loved ones.  However, a guardian does not have to be related to the ward. In fact, when a ward has complicated financial affairs or substantial or complex assets to manage, a bank or other financial institution can be appointed to act as the guardian of his or her estate. There are statutory requirements which determine who can act as a guardian.  A guardian must be over the age of 18, be of sound mind, and not be a convicted, unpardoned felon.

 

GUARDIANSHIP OF AN ADULT

Before a court can grant a guardianship over an adult the court must determine that that adult “ward” is incapacitated and is in need of a guardian.  Incapacitation mean a mental or physical condition which prevents the ward from caring for herself.  A professional must provide an evaluation of the ward which describes the incapacitation.  This evaluation can be presented to the court in one of two ways.  The most often used method is by Affidavit.  The professional (typically the ward’s physician, or a physician or social worker who specializes in Alzheimer’s, dementia or another impairment that renders the ward incompetent) completes an Affidavit which sets out the ward’s needs, the tasks the ward is capable of performing herself, the tasks with which she needs assistance, how long the impairment is likely to continue, and other factors.  This Affidavit is then filed with the court with the Petition for Guardianship.  Alternatively, the professional testifies in court as to the ward’s condition, abilities and needs.  Providing an Affidavit is generally the most efficient and effective way to present the ward’s condition and is sufficient in most instances.  Of course, if there are conflicting opinions of family members and professionals then testimony in court may be required so that the parties may be cross-examined.

 

GUARDIANSHIP OF A MINOR

Minors are often considered incapacitated by reason of their minority (not yet being 18 years of age); therefore, it is not necessary to file an Affidavit or present testimony from a professional as to the ward’s condition.  However, a person seeking guardianship of a minor must prove that the minor’s parents are unable or unwilling to act as guardians themselves.

 

BOND

Arkansas statutes provide that a guardian may be required to post a bond in order to act as guardian.  Generally, if the guardian is a resident of Arkansas, is related to the ward and is only acting as guardian of the person (and not the estate), any bond required is relatively small.

 

THE PROCESS

The process by which a guardian is appointed varies depending on each factual situation. In general, a petition for guardianship is filed, a hearing is scheduled, and the petition is served on, and notice of the hearing is given to, the persons required by statute.  A hearing is then held at which the proposed guardian must appear; the ward and other interested parties are entitled to appear.  If the court grants the guardianship an order will be entered; it will stipulate the actions that the guardian can and cannot perform.  The guardian then signs an acceptance of appointment and the court clerk issues Letters of Guardianship.  If the guardianship is temporary in nature it will last for ninety days.  If the guardian wishes to seek permanent guardianship after being appointed temporary guardian he will need to petition the court for a permanent guardianship and have a hearing prior to the end of the temporary guardianship.

 

The guardian is subject to the ongoing supervision of the court and so must file an annual accounting with the court.  An adult can typically avoid the expense and publicity of a guardianship proceeding, and the expense and intrusion of the continued court oversight, by signing a Durable Power of Attorney while still mentally competent.  A minor child cannot avoid guardianship but parents can, if they wish, nominate who they wish to rear their children (serve as their guardian) in the event the parents are not able to do so.  Otherwise, a court will simply decide without input from the parents.  For more details see “Estate Planning” under Practice Areas.

 

REQUEST A CONSULTATION

If you would like our assistance with a guardianship, please request a consultation and we will send you a Questionnaire. If you bring the completed Questionnaire with you to the appointment, with any requested attachments, a consultation is free up to one hour.  At that time, we will review your Questionnaire, answer your questions, and give you a brief overview of the process.  If you engage us, we will ask you to sign an Engagement Agreement and pay a retainer (a minimum of $2,000) against which we will bill expenses and our time on an hourly basis, in one-tenth of an hour (6 minute) increments. You may be asked to replenish this retainer from time to time as fees are earned. If the matter is concluded without us earning all money then on deposit we will promptly refund any excess. We will accept a Visa or MasterCard but we assess a 2% surcharge when doing so. We would consider it an honor to help you, whether your need concerns a senior, a child or someone in between who simply needs your assistance.

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The attorneys of Ball Corley PLLC proudly serve the entire State of Arkansas with respect to:  Estate Planning (wills, trusts, powers of attorney, HIPAA authorizations, living wills and visitation directives); Elder Law (Medicaid, veterans administration pension and long term care planning); Probate; Trust and Estate Administration; Guardianships; Family Law (adoption, divorce and separation, child custody and visitation, support obligations, post-decree modification and paternity); Premarital Agreements; Collaborative Law; Mediation; LGBT Laws; and Real Estate Transactions.

Notice and Disclaimer: This Ball Corley PLLC website is intended only to give general information which we believe may be helpful; it is not intended to be advertising or a solicitation, or to provide legal advice. If our website includes any links to other sites they are for information only and should not be interpreted as an endorsement. Although we try to keep the information on our website current it may not always reflect the latest laws, decisions or dollar amounts. And, the general rules provided may not apply to your specific situation; for every general rule there are multiple exceptions to that rule. Therefore, we strongly recommend that you consult with us or another qualified licensed attorney rather than taking any action in reliance on any information contained in this website. Neither your visit to our website, nor your phone call or email to our office, will create an attorney-client relationship with Ball Corley PLLC or its attorneys; such a relationship can be established only by our written agreement to represent you.

If you contact us via phone or email, please do not disclose any information which you deem to be confidential. Only after we have agreed to represent you are we governed by Rule 1.6 of the Arkansas Rules of Professional Conduct regarding Confidentiality of Information. That Rule requires that we hold in strict confidence any and all confidential information revealed to us by our clients, subject only to certain narrow exceptions (such as to confer with your CPA, investment advisor or another professional). We are also bound by Rule 1.18 and other Rules of Professional Conduct.

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