Adult Guardianship in Arkansas: Process, Alternatives & Costs

Unfortunately, the potential for eventual incapacitation is a risk that affects us all. Whether as a result of injury or illness, any of us could, at some point in our lives, become incapacitated. What will your family do if you become unable to make decisions for yourself? Who will take care of your property? How will your family manage financial matters?

If there is no power of attorney or living trust in place, it may take a court order for your family to obtain the authority to act on your behalf. In such an event, adult guardianship proceedings become necessary.

Guardianship Proceedings

To initiate adult guardianship proceedings, a third party files a petition for guardianship with the probate division of the circuit court. The term guardianship is often used interchangeably with conservatorship, but the two are distinct. In Arkansas, conservatorships are generally voluntary and so do not require the ward to be incapacitated. Because no evaluation of mental competence is necessary, conservatorships are generally less expensive to establish and administer than guardianships.

During the adult guardianship proceedings, the potential guardian must provide a list of the ward’s assets, sources of income, and other pertinent financial information. To protect the ward’s financial interests, the guardian of the estate must file an accounting with the court each year.

Arkansas Guardianship Law

Arkansas’s guardianship framework is codified at Ark. Code § 28-65-101 et seq. (covering §§ 28-65-101 through 28-65-707). The statute distinguishes between a guardian of the person (who makes healthcare and personal decisions) and a guardian of the estate (who manages finances and property). One person can serve in both roles, or the court may appoint two different people.

To obtain a guardianship, the petitioner must show by clear and convincing evidence that the proposed ward is incapacitated and that a guardianship is necessary to provide for the care and protection of the ward. The court will typically require a professional medical evaluation before issuing an order.

Alternatives to Adult Guardianship

Adult guardianship proceedings can be time consuming and inconvenient, and so it is much better to prepare for incapacity before it occurs. This can be done through a durable power of attorney or a living trust. Preparation for incapacity is an important part of any estate plan—a little preparation now can save your family a lot of grief and expense later.

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Frequently Asked Questions

What is an adult guardianship?

An adult guardianship is a court-ordered relationship in which one person (the guardian) is given legal authority to make decisions on behalf of another adult (the ward) who has been found by the court to be incapacitated. The guardian may handle healthcare decisions, financial matters, or both, depending on the scope of the court’s order.

What is the difference between a guardianship and a conservatorship in Arkansas?

In Arkansas, a guardianship generally requires a finding of incapacity and is imposed to protect someone who cannot make decisions for themselves. A conservatorship is typically voluntary and can be established without proving incapacity, making it less expensive and less intrusive.

Who can file for guardianship of an adult?

Any interested person may petition for guardianship, including family members, friends, healthcare providers, or the adult protective services agency. The court will decide who is qualified and appropriate to serve as guardian.

How can I avoid the need for a guardianship?

The most common way is to sign a durable power of attorney while you still have legal capacity. You may also place your assets in a living trust and name a successor trustee to take over if you become incapacitated. Both tools let you choose the person who will act for you—rather than leaving that decision to a judge.