Title: Incapacity in Arkansas
1INCAPACITY in ARKANSAS
2What is incapacity?
3Incapacity has several different meanings in
the legal arena
4- During legal proceedings,
- the terms generally refers to an individuals
ability to comprehend the nature and consequences
of those proceedings
5 Capacity can also be used to describe someones
qualification to enter into a binding legal
agreement
6- In estate planning,
- the term capacity refers to an individuals
ability to manage - his or her own affairs or make important decisions
7Legal Incapacity
8Under the law, a person must be legally
competent in order to enter into a contract or
execute a will or other legally binding document
9Competency has to do with not only mental
capacity, but also age and maturity
10For instance, in order to enter into a contract
in most states you must have reached the age of
majority
11Mental Incapacity
12- As most of us are aware, there are various
medical conditions that can lead to incapacity,
like Alzheimers disease, dementia and psychosis
13AGE AND SENILITY can sometimes diminish an
individuals ability to care for themselves or
make responsible decisions
14However, incapacity should never be determined
based solely on a medical diagnosis
15Temporary Incapacity
16- 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
17One example of a temporary condition causing
incapacity would be intoxication
18A contract that is signed while a person is
under the influence of drugs or alcohol can be
voidable
19How do you determine if someone is incapacitated?
20- Determining incapacity for the purposes of estate
planning is SOMETIMES A NECESSARY PROCESS
21That is because many estate planning instruments
only become active when the person who executed
the instrument has become incapacitated
22- It is also true that some estate planning tools
are no longer effective when the person is
incapacitated
23However, determining incapacity can be a
difficult and emotional process
24Who has the authority to determine incapacity?
25- When a legal determination must be made regarding
an individuals capacity, it is done by a court
26Generally, a court will request and review the
medical opinions of experts who have examined
that individual for the purpose of deciding
capacity
27When there is no challenge to a finding of
incapacity, the court will usually rely on the
medical records
28But if the individual or his or her family
members contest the finding, then the court will
request an independent psychological analysis,
for example
29Complete v. Partial Incapacity
30If an individual is declared totally
incapacitated by a court, he or she will lose the
right to make decisions regarding personal
welfare and finances
31This includes decisions pertaining to healthcare
and living arrangements
32On the other hand, a finding of partial
incapacity will allow the individual to retain
the ability to make certain decisions
33Can a determination of incapacity be reversed?
34Just as incapacity is not always permanent, a
finding of incapacity can be reversed
35FOR EXAMPLE, once a coma or illness has been
effectively treated, the individuals mental
capacity can return
36It can then be demonstrated to the court that the
individual in question has regained his or her
capacity
37The determination can then be reversed and
decision-making authority reinstated
38What should I do if I believe a loved one has
become incapacitated?
39Someone who is mentally impaired may start to
show signs of needing assistance in their
personal affairs, such as becoming increasingly
forgetful or disoriented
40If that happens, it may be time to consider what
type of assistance they need
41In some cases, that persons needs can be taken
care of informally by FAMILY OR FRIENDS
42This would be preferred. However, sometimes more
formal control of their affairs may be necessary
43Guardianship is one solution, however, it is not
the easiest or least expensive
44A Power of attorney may be an alternative
45A good way to avoid a guardianship is to execute
a durable power of attorney for healthcare and
finances or property
46A power of attorney is not complicated and much
less expensive than a guardianship
47More importantly, the individual is able to
choose the agent, rather than having a guardian
appointed by the court
48Click to visit arkansas-estateplanning.com