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- whether a bank could serve as a guardian - was removed rather quickly. An attorney general's opinion held that Act 345 did not repeal prior law which allowed a bank to serve as the guardian of the estate (but not the person) of an incapacitated person.' Act 940 of 1985 Almost immediately after the passage of Act 345, a special committee of the Association's Probate Law Section began discussing changing the law. There were a variety of ideas discussed by the lawyers, judges and bank officers who participated in the committee's work. Many favored the outright repeal of Act 345 and the reinstatement of prior law. Others felt that some of the criticisms which had been made of the prior law were proper and that some of the changes made by Act 345 should be retained. The group also realized that an effort to seek the outright repeal of the act might be strongly resisted by those who had been instrumental in its passage. There was no sentiment expressed to retain Act 345 in its entirety. . Ultimately the Section's committee and the Junsprudence and Law Reform Committee decided on a compromise approach. A draft hill was prepared which preserved most of the significant reforms in Act 345, incorporated some features of the Uniform Guardianship Act and specifically reenacted prior law. This bill was presented to the Association's House of Delegates and was approved, becoming part of the Association's legislative package for presentation to the 1985 General Assembly. While there was some fear that groups advocating the rights of the mentally disabled might oppose the legislation, no significant opposition materialized. The bill was passed by the legislature and was signed by the Governor, becoming Act 940 of 1985.
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he significant features of the 1985 legislation, which, with the exception of the temporary guardianship law to be discussed later in this article, remain law today are: (I) A new definition of "incapacitated:' taken from the Uniform Guardianship Act. was contained in the 1985 act. The advocates for change in the guardianship law had criticized the definition of incompetent in the 1949 Probate Code. but the definition of incapacitated con-
tained in Act 345 had been criticized by the legal community;
(2) The concept of limited guardianship, which was one of the basic goals of the propanents of Act 345, remained in the new law; (3) A professional evaluation of the person for whom
guardianship is sought was retained. This requirement, one of the most significant changes Act 34S made in existing law and one of the most criticized.
was accepted by lawyers and judges because of the detailed specifications which the act set forth. One of the mos1 important specifications is that the professional who completes the evaluation does not have to
be present in court, although he or she may be subpoenaed.. Moreover. the details of what the evaluation
should contain are spelled out with more particularity; (4) Current law retained the requirement that an "annual report" on the conditions of the ward be made. but removed. Act 345's requirement that the clerk automati-
cally set a hearing if the guardian fails to do so. The requirement of a review hearing every three years as provided. for in Act 345 also was removed.;
(5) The notice provisions of Act 345 have been retained. in
large part - the allegedly incapacitated person must receive notice and the notice must set forth his or her rights to be represented.. to present evidence, to crossexamine witnesses, to be present. to remain silent and to compel the presence 01 witnesses.' However. 20 days' notice is required. under current law. Under Act 345. the minimum period was 30 days.
Of course, there are other areas in which Act 345's provisions were retained or deleted, but the above list includes the most significant features of our current guardianship law. One feature of Act 940 of 1985 was that it specifically repealed all prior law and fully set forth all provisions. Therefore, one need not attempt to determine whether a pre-existing provision is retained. If it is law, it is set forth in the guardianship statutes (Ark. Stat, Ann, secs, 57-821 to 57-870 (1985 Cum. Supp.)). Act S35 of 1987 ust as our guardianship law seemed about to enter a period of relatIve stability - the only guardianship legislation expected in the 1987 General Assembly was for technical corrections to Act 940 - the Arkansas Supreme Court decided the case of In the Matter of Loren Evatt.' Evatt involved a challenge to the temporary guardianship procedure set forth in Ark. Stat. Ann. sec. 57-840 (1985 Cum. Supp.). In the Evatt case, the probate judge had signed an ex parte order granting one of Mr. Evatt's relatives a temporary guardianship of his person for 90 days, the maximum period permitted by statute for a temporary guardianship. After the guardian's appointment. he authorized the sheriff to pickup the ward. The shenff did so, and Mr. Evatt was conlined in jail for two days. He was then involuntarily committed to the Arkansas State Hospital. Mr. Evatt did not contest his civil commitment, but he did appeal the order of temporary guardianship. He alleged that the granting of guardianship over his person without notice before or immediately thereafter violated his right to due process of law. The Supreme Court agreed. While recognizing that there are emergency situations in which imminent danger to the life or property of the allegedly incapacitated person could make notice prior to the guardianship hearing impossible, the Court held that the ward's interest in retaining control of his person and property are such that a review hearing must be held promptly after the guardianship is established, if prior notice is not given. In addition, the Court held that the notice given in a temporary guardianship must be different both in form and in substance from that required under section 57-840. (The only specifica-
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Editor's Note: Judge Ellen Bran t1ey, a chancellor and probate judge in the Sixth Judicial District, Fourth Division, is co-author of Probate: The Law in Arkansas. She served as a faculty member at the University of Arkansas at Little Rock School of Law from 1978-86 and is a graduate of Wellesley College and the University of
Virginia, July 1987/Arkansas Lawyerll03