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Temporary Guardianship Law Ruled Defective

February 2, 1987

LITTLE ROCK, Ark. (AP) _ The Arkansas Supreme Court ruled Monday that the state’s temporary guardianship law is unconstitutional because it violates the due process clause of the 14th Amendment.

The court ruled in the case of Loren Evatt, whose case began in Pulaski County Probate Court when judge Judith Rogers signed a 90-day temporary guardianship order for his mother, Eva Evatt, of North Little Rock.

The Supreme Court agreed with Evatt’s appeal that the temporary guardianship law was unconstitutional because it authorized the granting of a guardianship without notice, did not provide for a review hearing after he was placed in detention, and did not guarantee him the right to counsel and the right to cross-examine witnesses.

Mrs. Evatt’s petition said her son had been in prison on drug charges and mental institutions for problems including schizophrenia. She said that when he was released from a state mental hospital on March 28, 1986, he said he didn’t intend to take prescribed medication and disappeared.

The law required no notice to Evatt before the hearing on his mother’s petition, which was granted April 22.

Evatt showed up at his mother’s home on May 12 and, under the guardianship order, was picked up by the sheriff and taken to jail without a hearing.

Two days later, an involuntary civil proceeding was held and Evatt was committed to the Arkansas State Hospital, a facility for the mentally ill.

The Supreme Court said the law had no meaningful provision for giving due process notice to an incapacitated person.

In temporary guardianship proceedings, the state exercises a benevolent power on behalf of incapacitated persons ″much as the police power could be used to pick up and temporarily shelter a lost infant,″ the Supreme Court said.

″However, under the terms of the statute, as presently written, a person could be erroneously detained for as long as 90 days, and there are no procedural safeguards to prevent such a tragedy,″ the court said.

In emergency situations, advance notice of temporary guardianship will not be necessary to comply with procedural due process, the high court said, because of the risk that an incapacitated person will run away, harm himself or others, or waste his property prior to a hearing.

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