What options exist for establishing authority over an elderly heir’s personal and financial decisions in Arkansas? | Arkansas Estate Planning | FastCounsel
AR Arkansas

What options exist for establishing authority over an elderly heir’s personal and financial decisions in Arkansas?

Detailed Answer

In Arkansas, you can protect an elderly heir’s interests through either a Power of Attorney or a court-appointed Guardianship and Conservatorship. Each option serves different needs and carries unique requirements.

1. Power of Attorney

A Power of Attorney (POA) lets a capable individual (the principal) appoint an agent to handle personal or financial tasks on their behalf. Arkansas recognizes two common types:

  • Durable Financial POA: Grants authority over bank accounts, real estate, investments, and bill payments. It remains valid if the principal becomes incapacitated.
  • Medical POA: Authorizes healthcare decisions when the principal cannot communicate their wishes.

Key requirements under Ark. Code § 28-68-203 (Power of Attorney Act):

  • The principal must be at least 18 and of sound mind.
  • The document must be written, signed by the principal in the presence of two adult witnesses, and notarized.
  • It must clearly state whether it is durable (i.e., remains effective upon incapacity).

Advantages of a POA:

  • Speed: You can create a POA quickly without court involvement.
  • Flexibility: Tailor the document’s scope and duration.
  • Privacy: Financial details remain confidential.

2. Guardianship and Conservatorship

If an elderly heir lacks capacity to grant a POA, you can petition the probate court for guardianship (personal decisions) or conservatorship (financial decisions). Arkansas law requires proof of incapacity under Ark. Code § 28-65-201 (Guardianship & Conservatorship).

Process overview:

  1. File a Petition: A relative or interested party files in the county probate court detailing why the heir is incapacitated.
  2. Medical Evaluation: A licensed physician or psychologist must examine the proposed ward and submit a report on mental and physical capacity.
  3. Court Hearing: The court hears evidence, and the proposed ward has a right to counsel and to contest the petition.
  4. Appointment: If incapacity is proven, the court appoints a guardian and/or conservator with specified powers—always choosing the least restrictive alternative.

Guardianship offers stronger oversight but involves ongoing court supervision and annual reporting of the ward’s status and finances.

Helpful Hints

  • Plan ahead: Execute a POA while the heir still has capacity.
  • Choose agents wisely: Select trustworthy family members or professionals.
  • Keep records: Document all transactions and decisions to simplify potential court reviews.
  • Review regularly: Update POAs to reflect changing relationships or assets.
  • Consult an attorney: Even though this guide helps you understand options, an attorney can draft tailored documents and guide you through court processes.

Disclaimer: This article is for educational purposes only. It does not constitute legal advice. Always consult a licensed attorney in Arkansas regarding your specific situation.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.