Incapacity in Arkansas

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INCAPACITY in ARKANSAS
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What is incapacity?
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Incapacity has several different meanings in
the legal arena
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• During legal proceedings,
• the terms generally refers to an individuals
  ability to comprehend the nature and consequences
  of those proceedings

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Capacity can also be used to describe someones
qualification to enter into a binding legal
agreement
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• In estate planning,
• the term capacity refers to an individuals
  ability to manage
• his or her own affairs or make important decisions

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Legal Incapacity
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Under the law, a person must be legally
competent in order to enter into a contract or
execute a will or other legally binding document
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Competency has to do with not only mental
capacity, but also age and maturity
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For instance, in order to enter into a contract
in most states you must have reached the age of
majority
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Mental Incapacity
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• As most of us are aware, there are various
  medical conditions that can lead to incapacity,
  like Alzheimers disease, dementia and psychosis

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AGE AND SENILITY can sometimes diminish an
individuals ability to care for themselves or
make responsible decisions
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However, incapacity should never be determined
based solely on a medical diagnosis
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Temporary Incapacity
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• Many conditions or events render an individual
  incapacitated only temporarily meaning that
  when the situation passes or has been resolved,
  that persons capacity can return

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One example of a temporary condition causing
incapacity would be intoxication
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A contract that is signed while a person is
under the influence of drugs or alcohol can be
voidable
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How do you determine if someone is incapacitated?
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• Determining incapacity for the purposes of estate
  planning is SOMETIMES A NECESSARY PROCESS

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That is because many estate planning instruments
only become active when the person who executed
the instrument has become incapacitated
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• It is also true that some estate planning tools
  are no longer effective when the person is
  incapacitated

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However, determining incapacity can be a
difficult and emotional process
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Who has the authority to determine incapacity?
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• When a legal determination must be made regarding
  an individuals capacity, it is done by a court

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Generally, a court will request and review the
medical opinions of experts who have examined
that individual for the purpose of deciding
capacity
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When there is no challenge to a finding of
incapacity, the court will usually rely on the
medical records
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But if the individual or his or her family
members contest the finding, then the court will
request an independent psychological analysis,
for example
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Complete v. Partial Incapacity
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If an individual is declared totally
incapacitated by a court, he or she will lose the
right to make decisions regarding personal
welfare and finances
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This includes decisions pertaining to healthcare
and living arrangements
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On the other hand, a finding of partial
incapacity will allow the individual to retain
the ability to make certain decisions
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Can a determination of incapacity be reversed?
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Just as incapacity is not always permanent, a
finding of incapacity can be reversed
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FOR EXAMPLE, once a coma or illness has been
effectively treated, the individuals mental
capacity can return
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It can then be demonstrated to the court that the
individual in question has regained his or her
capacity
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The determination can then be reversed and
decision-making authority reinstated
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What should I do if I believe a loved one has
become incapacitated?
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Someone who is mentally impaired may start to
show signs of needing assistance in their
personal affairs, such as becoming increasingly
forgetful or disoriented
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If that happens, it may be time to consider what
type of assistance they need
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In some cases, that persons needs can be taken
care of informally by FAMILY OR FRIENDS
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This would be preferred. However, sometimes more
formal control of their affairs may be necessary
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Guardianship is one solution, however, it is not
the easiest or least expensive
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A Power of attorney may be an alternative
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A good way to avoid a guardianship is to execute
a durable power of attorney for healthcare and
finances or property
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A power of attorney is not complicated and much
less expensive than a guardianship
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More importantly, the individual is able to
choose the agent, rather than having a guardian
appointed by the court
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