Ark. Code Ann. § 28-65-211 (2020)

Case Notes

Competency Established.

Where an incompetent brought a guardianship termination proceeding in which she requested the trial court to adjudicate and restore her competency and the evidence clearly established that the plaintiff was competent to care for herself and her home and had done so for the previous 12 years, the trial court erred in refusing to grant her request because there was no evidence that she suffered from the requisite mental incapacity or unsoundness of mind required to necessitate the appointment of a guardian, notwithstanding the fact that she was unable to properly manage her finances due to her inexperience in such matters. In re Estate of Lemley, 9 Ark. App. 140, 653 S.W.2d 141 (1983) (decision under prior law).

Examination by Medical Witness.

Nothing in the Probate Code required that the medical witnesses required under former similar statute must have examined an alleged incompetent. Sparks v. First Nat'l Bank, 242 Ark. 435, 413 S.W.2d 865 (1967) (decision under prior law).

Trial court's finding of incapacity was clearly erroneous because there was no oral testimony or sworn written statement of a qualified professional as required by subdivision (b)(1) of this section, and the medical evaluations did not establish findings with respect to adaptive behavior. Cogburn v. Wolfenbarger, 85 Ark. App. 206, 148 S.W.3d 787 (2004).

Failure to obtain a professional evaluation prior to a hearing on the appointment of a guardian was clearly erroneous; there was no oral testimony or a sworn written statement of a qualified professional. Without the required professional examination, there was insufficient evidence of the need for a guardian. Autry v. Beckham, 2014 Ark. App. 692, 450 S.W.3d 247 (2014).

Long-term care facility is defined in § 20-10-101 as a nursing home, residential care facility, assisted living facility, post-acute head injury retraining and residential care facility, or any other facility which provides long-term medical or personal care. Given this statutory definition, the Supreme Court of Arkansas held that, for the purposes of subdivision (b)(2) of this section, a long-term case facility was not an institution for the treatment of mental or nervous diseases. Hale v. Coffman, 2016 Ark. 36, 480 S.W.3d 861 (2016).

In dismissing a daughter's petition for guardianship over her 84-year-old father, the circuit court erred when it concluded that the daughter was required to present oral testimony or a sworn written statement of a qualified professional who was a member of the medical staff of the long-term care facility where the father was a resident; the facility did not fall within subdivision (b)(2) of this section. Hale v. Coffman, 2016 Ark. 36, 480 S.W.3d 861 (2016).

Examination Fees.

Where original appointment of guardian without notice was invalid and guardianship was dismissed on hearing, so that no guardian was actually appointed, an examining physician was to be paid by the petitioner, and the petitioner was not entitled to reimbursement from the estate of alleged incompetent. Powers v. Chisman, 217 Ark. 508, 231 S.W.2d 598 (1950) (decision under prior law).

Invited Error.

Pursuant to the invited-error doctrine, a guardian was precluded from arguing that a guardianship was void because it was the guardian who requested the guardianship and who failed to obtain the requisite professional evaluation; the guardian defended the validity of the guardianship when trustees attempted to have it set aside. Rogers v. Ritchie, 2017 Ark. App. 420, 528 S.W.3d 272 (2017).

Order of Incapacity.

Order failed to reflect that the daughter's incapacity had been established by the evidence required in this section. Hinton v. Bethany Christian Servs., 2015 Ark. App. 301, 462 S.W.3d 361 (2015).

Physical Impairment.

Where the petition for appointment of the guardian merely stated that a person was unable to care for herself because of physical impairment, the probate court had no jurisdiction to appoint a guardian for such a person, at least under the law at the time of the guardianship proceeding. Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979) (decision under prior law).

Sworn Written Statement.

Extensive documentation regarding the child found in the service plan arguably qualified as an evaluation, but the service plan was not a sworn written statement and did not set out the doctor's qualifications; section 28-65-212(a)(2) requires that the evaluation be performed by a professional with expertise appropriate for the respondent's alleged incapacity, and a doctor's authorization for treatment is not a sworn written statement; therefore, the case was reversed and remanded. Kantor v. Ark. Dep't of Human Servs., 2018 Ark. App. 402, 559 S.W.3d 747 (2018).

Cited: In re Bailey, 299 Ark. 352, 771 S.W.2d 779 (1989).