Arkansas Court of Appeals | Elder Law Issues

Posts Tagged ‘Arkansas Court of Appeals’

Probate Judge Sets Visitation Schedule in Minor Guardianship

DECEMBER 5, 2011 VOLUME 18 NUMBER 41
Most of the guardianship issues we deal with at Fleming & Curti, PLC, involve adults who have limited capacity or special needs. Sometimes, though, the subjects of a guardianship proceeding are minors; that can bring unique issues to the process.

There are a few legal principles that govern guardianship of minors:

Minors are by definition “incompetent” under the law. In other words, they can not enter into binding contracts, they can not make enforceable decisions about their own living arrangements and health care (though “emancipated” minors may be different, and special exceptions may apply to the broad principle laid out here).
Parents are the “natural guardians” of their minor children. That means they do not need court involvement to take responsibility for and control of their children’s care.
Disputes between parents (usually, but not always, after they are divorced) about upbringing, care, education and living arrangements can be resolved in court — but the court involved is usually the domestic relations (sometimes called divorce or family) court.
When parents are unfit, the decisions about placement, care, education and visitation are likely to be handled by a different branch of court, usually called juvenile court.
Guardianship of minors is not uncommon, but in Arizona (as in most states) it is only appropriate when there is no parent available to exercise parental control. Of the three types court proceedings dealing with minors (juvenile, domestic and guardianship), the guardianship process is the least-used and usually the least-important.

Every generalization has its limitations, of course (presumably including this one, but that’s a philosophical issue for another day). Guardianship proceedings can and do exist for minors, and significant legal and family issues can and do get resolved in the guardianship context. Consider the case of the Smith/Lowrance/Wallace family in Arkansas.

In 2005 Timothy Wallace shot and killed his wife Brandy and a friend. Although he fled the United States after being released on bail, he has been returned, tried, and sentenced to two life terms. The death of Brandy Wallace and the incarceration of her husband meant that the couple’s three minor children, identified in court papers as “ZW,” “MW” and “CW,” had no parents available to raise them.

Three family members stepped forward to assert their priorities. Brandy Wallace’s mother (Janet Smith) and brother (Brian Lowrance, along with his wife Anna Lowrance), and a half-sister each argued that they should be appointed guardian for the three children. The court initially appointed Ms. Smith and the Lowrances together; after a later agreement and hearing, the Lowrances were appointed as permanent guardians and Ms. Smith was given a right to reasonable visitation with her grandchildren.

For several years the parties worked out a visitation schedule without too much conflict. In early 2010, though, Mr. and Mrs. Lowrance decided to limit Ms. Smith’s visitation; they required that all her visits with her grandchildren had to be supervised by one of them, and they cut off any overnight visits. Ms. Smith asked the probate judge (in Arkansas, as in Arizona, minor guardianships are handled in the probate court) to order the Lowrances to return to the earlier and more generous visitation schedule.

After a hearing the probate judge scolded both parties. He chastised the Lowrances for modifying the visitation arrangements unilaterally, and told Ms. Smith that she would have to find transportation to visit her grandchildren or give up visitation. Then he ordered a specific visitation schedule, similar to the kind that divorced couples sometimes see when the courts attempt to regulate the behavior of parents who can not work out visitation on their own initiative.

Mr. and Mrs. Lowrance appealed the imposition of a specific visitation schedule. They argued that they had done nothing wrong, and that they had just been protecting the children from a dangerous situation. They pointed out that Ms. Smith had allowed two of the children, then aged eleven and seven, to operate a “chainsaw.” While Ms. Smith acknowledged that she had allowed the two to operate a battery-operated saw, she agreed not to permit them to use any power tools in the future, and the probate judge had entered an order to that effect.

The Arkansas Court of Appeals agreed with the probate judge that, given the disagreements and the parties’ inability to work out their differences, a specific visitation schedule was in order. Although the relationship of Ms. Smith to the children is not the same as a parental relationship, the appellate judges ruled that the goal in a guardianship action should be the same as in domestic relations proceedings: serving the best interests of the minor children. Given the history of disagreement and litigation, the probate judge’s order “achieved the best interests of the children by fostering continued relationships, by eliminating continued litigation, and by crafting visits to fit with the children’s busy lives.” Lowrance v. Smith, 2011 Ark. App. 725 (November 30, 2011).

Subjects: Arkansas Court of Appeals, extradition, guardianship, guardianship of minor, Lowrance v. Smith, minority, visitation
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In Rare Challenge, Court Finds Revocation of Will Effective

FEBRUARY 22, 2010 VOLUME 17, NUMBER 6

The popular conception of the probate process and the making of wills is colored by misinformation from a number of sources. Movies, books and plays provide much of the misunderstanding, building an expectation of “the reading of the will” in a lawyer’s office (it just doesn’t happen), regular will contests (they are quite rare) and regular revocation of wills. That last is especially rare, and so a recent case focusing on how one revokes a will, and what level of mental capacity it requires, is a legal gem.

Why don’t people revoke their wills more often? They do — but the nearly universal way one revokes a will is to sign a new will, which recites that any previous wills are no longer effective. It is especially rare to destroy an existing will without signing a new one. When that does happen, the person no longer has a will at all — and the state law of “intestate succession” takes effect, just as it would if there had never been a will.

So how does one revoke a will, if they are for some reason not inclined to sign a new one? There are any number of ways to do so, but the classic method is for the person to physically tear his or her own will into at least two pieces. What Bill Potts did was more elaborate: he drew lines through every line of text, applied Liquid Paper to the names of the beneficiaries he had listed in the will, wrote “void” over each paragraph, and then wrote “bastard” and “get nothing” next to some of the names. Just to make sure he had driven his point home, he later took the marked-up document to his insurance agent’s office and fed it to their shredder.

As an aside, Mr. Potts’ approach would have worked just fine under Arizona law, too. The statute in Arizona requires only that the testator (the person who signed the will in the first place) perform “a revocatory act on the will.” That includes burning, tearing, canceling, obliterating or destroying the will or any part of it. It does not include telling someone else to do any of those things, unless the testator is conscious and physically present at the time.

After Mr. Potts died the individuals named in the will sought to admit a copy to the Arkansas probate courts. They argued that Mr. Potts had suffered from “insane delusions” at the time he tried to revoke the will, and that his revocation was ineffective.

The trial in probate court primarily focused on Mr. Potts’ belief that his late wife might have had an affair with one of the beneficiaries named in his will, that another might have stolen a gold bracelet belonging to his wife. A psychiatrist testified that those beliefs were the product of a “delusional disorder.” The trial judge found that Mr. Potts’ belief about his wife’s infidelity was probably wrong, and that his poor hearing and irascible nature probably contributed to a misunderstanding about the bracelet, Still, ruled the judge, the will beneficiaries had not met their burden of showing that Mr. Potts lacked testamentary capacity when he revoked his will, and therefore the revocation was effective. Bill Potts died intestate.

The Arkansas Court of Appeals agreed, and upheld the probate court’s ruling. The appellate court spent some time considering whether there was sufficient evidence that Mr. Potts had the level of capacity needed to write a will — the same standard that would be applicable to determining whether he had the capacity to revoke a will. Although Mr. Potts frequently claimed, for example, that he had no relatives, the appellate court agreed that he probably meant that he had no surviving close relatives. Meanwhile, he could identify some, perhaps most, of his remaining distant relatives, and he just didn’t know where they lived, or even whether they were still alive.

“The evidence clearly showed that Bill was an irascible, angry, suspicious, controlling, profane and difficult man for most of his adult life,” wrote the appellate judges. That, however, was not enough to find his will revocation invalid. He had the capacity to revoke his will, and presumably he would have had the capacity to sign a new will — if he had known who he wanted his estate to go to. Heirs of Goza v. Estate of Potts, February 17, 2010.

Subjects: Arkansas Court of Appeals, bastard, Bill Potts, estate planning, get nothing, Heirs of Goza v. Estate of Potts, mental capacity, revocation of will, shredder, void, will contest, Wills
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