In Arkansas and other states, many estate planning decisions rest on the idea of incapacitation. Whether you are planning your living will, a power of attorney, guardianship or other agreement, you will need to consider the possibility of incapacitation.
As Arkansas Circuit Courts explain, state law clearly defines “incapacitated person” and what the court will require to show it.
Under Arkansas state law, an incapacitated person is someone who is unable to care for the ordinary affairs of life due to some type of injury, impairment or decline. Statutory law defines it as “a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate.”
It later defines these essential requirements to be food and housing, clothing, health care and safety, saying that one must be able to avoid serious injury or illness.
Case law has affirmed that an incapacitated person must also have the mental presence to understand his or her whereabouts, actions and decisions.
In order to take guardianship of a person without a prior agreement, the petitioner will need to demonstrate that a person is incapacitated with clear and convincing evidence. The court will not assume that a person is incapacitated, so you will need to show it.
For prior agreements that rely on incapacity, such as a power of attorney, you may only need a doctor or legal official’s written affirmation.
Courts also have the right to seek alternatives if they determine the person in question to be only partially incapacitated. In other words, they may make decisions based on the severity of the incapacity. A court could, for instance, determine a person to be partially incapacitated and in need of some assistance but not in need of guardianship.