The Quick, Easy, and Cheap Arkansas Court Case

I talk to a lot of people who need legal help. Everyone wants cases to be quick and easy, and most want them to be cheap. To that end, many of these people don’t have much money and want advice about whether they can complete their case without an attorney to save on costs.  You can try to complete it without an attorney, but you might hit some bumps in the road. Here is pricing for the uncontested matters:

Full Representation for Uncontested Matters (Divorce, Child Custody, Child Support, Paternity)
  1. $985 - Uncontested Matter (the full package) it covers the filing fee, all the documents, and up to 4 hours of time. If the matter becomes contested the price may go up.

What is an uncontested matter?

Many lawyers use the terms differently—to distinguish tough cases from easy cases. So, a case where the parties agree on everything will be an uncontested matter in Arkansas. In many instances, anything else is a contested matter. (And once something is contested, the case cost automatically goes way up, of course.)

Limited-Scope Representation - buying one piece at a time.
  1. $250 - Drafting documents to file for divorce.
  2. $200 - Drafting documents to respond to a divorce filed against you.
  3. $100 - Drafting a waiver of service.
  4. $250 - Drafting a divorce decree.
  5. $200 - Drafting or responding to a motion.
  6. $400 - Drafting discovery.
  7. $200 - Represent you at an uncontested hearing.

How Much Does a Contested matter Cost in Arkansas?

Court cases are expensive. The biggest cost is obviously the emotional toll. The financial cost of an Arkansas court case can also be significant, but it doesn’t have to be. However, we are trying to make it easier for the Average Arkansan to afford a lawyer.

The Flat Fee
  1. $3,000 - Flat fee for a contested matter that ends in up to a half-day hearing. This includes the filing fee and service.
  2. $5,000 - Flat fee for a contested matter that ends in up to a full-day hearing. This includes the filing fee and service.
  3. $2,000 - Flat fee each additional day of hearings.

Full Representation consists of Drafting and filing of a Summons, Complaint, Decree and other motions the attorney deems necessary, as well as performing discovery in contested matters. Depositions are not included in the full representation. However, if the client decides a deposition is necessary, the client will approve and pay for the costs of the court reporter, the transcript, and an additional $500 flat fee for the attorney to perform or defend the deposition. Not every matter will fit into categories, but 95% will.  These figures don’t factor in things like experts or private investigator fees, which might make it significantly more expensive. (Many experts are more expensive than lawyers.)

The most important thing you need to know about Arkansas court case costs is that a) they are manageable, and b) your lawyer should be completely up front with you about costs. If you think that he or she is not being completely upfront with you, you need to hire someone else.

Other interesting Blawgs:

Arkansas Divorce Law: Three Options

The Quick, Easy, and Cheap Arkansas Divorce

How Can I Reduce My Divorce Cost?

The Temporary Hearing in Child Custody Cases

Child Support Laws: Equitable and Fair for Both Parents?

How Far Back Does Arkansas Child Support Go?

 

I sure hate to do this to you, but I’ve got to: “It all depends.”

Most of the time, you have to wait until the end of a case to appeal a judge’s decision. This includes rulings that may have occurred along the way, even if they were decided long before the final decision. And it applies even if one of these decisions along the way was important and might have changed the outcome of the whole thing.

This is what’s called “finality.” It’s one of the most important things to consider when you bring an appeal in Arkansas because it is fatal—it will kill the entire appeal and you may have to start all over. Finality simply means that an appellate court does not want to hear an appeal in pieces. For the sake of saving the courts’ time, they have rules that require all the issues to be rolled into one appeal, where they can decide everything.

Okay, so that’s the rule. Here is the exception: In certain circumstances, a party can have the trial court “certify” a question to be considered before the final decision has been made. The guidelines for getting a question certified are found in Rule 54(b) of the Arkansas Rules of Civil Procedure and Rule 3 of the Arkansas Rules of Appellate Procedure. This certificate is often known as a “54(b) certificate.”

A lot of lawyers regularly mess this up because they don’t follow the rules carefully.

The first way in which a lot of lawyers mess this up is by not carefully following the language of the rules. This is not the time to get creative; when a lawyer drafts the Rule 54(b) Order for the trial judge to sign, he or she needs to track the rule word-for-word. Every part of it is important and needs to be in the order. That is a relatively easy trap to avoid.

The second common error is failing to get the trial judge to explain exactly why the question is being certified before the final decision. The order has to give specific, factual reasons for why the judge made his or her decision.

Basically, this means that the judge needs to actually list reasons why the appellate court should break its own rule. It’s not enough to make generalized statements. He or she must explain why the particular question needs to be answered by the appeals court before the trial court goes on to hear the rest of the case.

There are good reasons for submitting a particular issue for appeal before the case is finished, but they are rare. Both because of the landmines of a 54(b) certificate and the added cost of multiple appeals, it’s normally more appropriate to wait for the case to end.

This is complicated stuff.  Don’t try and wade through this process all on your own.

If you feel like there’s a good reason for a decision in your case to get appealed, call us today to schedule your free consultation, and we’ll sort it out for you.

An appeal decision is not as straightforward as you might think.

To illustrate the point, I need to point you to an area in which I am almost completely stupid: Football.

I basically watch enough football to be dangerous. I don’t really understand what’s going on, but I know enough to be able to shout things at the television that at least sound like football-ish shouts.

One thing I have observed over the last several years of fair-weathered viewing is the rise of the instant reply review. Was it always this way? I don’t think so. It used to just be that the ref made the call and that was it. He or she might wrong, but that was just part of the game.

Not anymore. No, it seems like every play is subjected to intense scrutiny from 40 different angles. Plays are replayed and re-replayed and re-re-played to make sure that the ref did not make the wrong call.

If you watch football and have had to endure this charade, you’ve heard the sportscasters throw around this term: “Indisputable video evidence.” According to the sportscasters and, presumably, some body of rules, the refs are supposed to have indisputable video evidence to reverse the call on the field.

Interestingly, there is rarely indisputable video evidence to change the call, but they change them ALL THE DANG TIME anyway. But that’s a separate issue.

One of the many ways that being an appeals lawyer makes you a terrible person is that you subject everything in life to legal reasoning. So, what do I do? Naturally, I put on my lawyer hat when I’m watching these instant replays.

This is the point: When the refs review the instant replay, they are not supposed to use the same standard as if they were watching the case for the first time. The call on the field stands, even if it looks like the ref was wrong, unless there is indisputable video evidence. The instant replay review is to make sure that the ref did not completely miss the call. If the call is debatable or unclear, the instant replay folks will defer to the guy on the field. (There’s good reason for this: We can’t do instant reply on every play or the game would take 10 hours and no one would watch.)

Appellate judges are like the instant replay people. When a judge decides an appeal, he or she is not looking at the case like the trial judge did, just like the instant replay people don’t look at the play like the guy on the field. The standard is not whether the trial judge was right or wrong; the standard is (mostly, usually) whether the trial judge messed up so bad that the case should be reversed.  

The “indisputable video evidence” is the standard of review for the instant replay people. (If they actually have a name, I do not know it.) If there isn’t indisputable video evidence, the instant replay people should not change the ruling on the field.

The standard of review for appellate judges is usually one of three possibilities:

  1. Abuse of discretion
  2. Clearly erroneous
  3. De novo

Certain legal questions are reviewed to determine if the judge made an abuse of discretion. An abuse of discretion standard is used when there is a decision that a judge has some leeway on. A lot of decisions that a trial court makes are not black-and-white; instead, the trial judge has to look at everything and try to make the best decision he or she can. Most of the time, those decisions will stand because it’s not good to second-guess everything that the trial judge does. In some instances, however, a judge does something that, while she had the right to do it, is just obviously wrong. In that instance, an appellate judge will determine that the trial judge abused her discretion.

Other legal questions regarding appeals are reviewed to see if they are clearly erroneous. In legal terms, these questions are normally “questions of fact.” A question of fact might be “Is this person telling the truth?” or “How much is this piece of land worth?” or “Did the doctor actually do everything she could do to save this baby?” or “Did this drunk person actually have control of the vehicle?” These are the kinds of questions that a jury decided if it’s a jury trial. When an appellate judge reviews questions like this, they are looking at everything to see if the trial judge made a clear error.

The third standard of review of appeals is called “de novo.” A de novo standard of review is used to determine questions of law. On questions of law, the appellate judge doesn’t really care what the trial judge did. To continue the analogy to football, a question of law might be when the instant replay people review a call and the ref applied a rule that doesn’t exist. They will defer to the ref’s eyes but they won’t defer to his knowledge of the rules.

Confused? It can definitely be confusing to know how (and why) judges make a decision in appellate cases.

So, Football isn’t hard, but appeals are so you should hire us to help you with yours.

Inmate Medical and Mental Health Care Rights

All prisoners have a right to adequate medical care, mental health care, and equal treatment which is guaranteed by the Constitution and federal law.

Overcrowding, understaffing, and civil rights violations in Arkansas prisons became national news in 1968 when prison superintendent Tom Murton uncovered 3 skeletons at Cummins Unit. Murton’s attempt to reform Arkansas prisons led to firing and exile from the field of prison management.

Fifty years later, Arkansas Department of Corrections (ADC) still struggles with these issues. Improper medical care for ADC inmates continues to be a problem for many families. As of 2015, Arkansas ranked 2nd in the nation for federal law suits concerning medical and other conditions in the state prison system.

Prisoner medical rights are guaranteed by:

• The Eight Amendment: prohibition of cruel and unusual punishment provides inmates with a right to care
• The Fifth & Fourteenth Amendments: the Due Process Clause provides the same right to detainees awaiting trial
• In Estelle v. Gamble, the U.S. Supreme Court decided that “deliberate indifference to a serious medical need” is a violation of the U.S. Constitution.
• The Americans with Disabilities Act (ADA) is a federal law that requires equal access to services, programs, and activities for inmates with disabilities. This law may be violated if inadequate care or prison policies cause an inmate to be denied access to prison programs or services. An example of ADA discrimination could be denial of work release because of diabetes.

In order to prove that a prisoner’s right to health care has been violated, you’ve got to be able to show the following things:

A “serious medical need” has been diagnosed by a physician.
A medical need is serious if it requires treatment or is so obvious that an average person would easily recognize it needs a doctor’s attention.
A medical need may affect a person’s daily activities or cause intense or chronic pain
Examples of serious medical needs include diabetes, high blood pressure, a need for eyeglasses, and mental health treatment.

Prison officials must be aware of the serious medical condition.
There is no right to medical treatment if no one is aware of the problem.
They are made aware of medical issues by filing sick call slips and seeking treatment.

Prison officials fail to provide adequate care through deliberate indifference.
Deliberate indifference is shown by:

  1. Waiting too long to provide care (longer than reasonable)
  2.  Not providing adequate care (unhelpful or improper treatment) or
  3. Denying medical care or prescribed treatment.

What is adequate care?

Because medical and mental health conditions impact every person differently, appropriate care differs from person to person. This makes documenting medical and mental conditions very important, both when a person is moving into the prison system and during their stay. However, prisons are required to meet the community standard of care. This means they are to provide the same level of care as people in the community.

How can you help your loved one receive adequate medical care in the Arkansas Department of Correction system?

Don’t assume medical staff are aware of all medical conditions or fully understand your loved one’s specific needs.

Requests for “better care” are more likely to be ignored and may not contain enough information to make medical staff aware of a serious medical need.

Make proper, written requests to medical staff by following ADC procedure. Include specific details about your love one’s medical needs, including prescription medication. Document all requests for medical care and detail why the care does not meet legal requirements.

Become familiar with the Arkansas Department of Correction’s care standards. ADC is required to develop standards under Arkansas law (AR Code, medical care of inmates)

File a grievance if medical requests are not addressed properly.
The grievance and appeal process must be followed properly or legal solutions may be limited or unavailable. Be sure you and your loved one are aware of and follow the procedure required by their facility.

The following checklist will help you help inmates with medical issues in the Arkansas Department of Correction.

  1. Verify the right person is listed as the emergency contact in the ADC file.
  2. Make sure you have permission to discuss medical issues with ADC.
  3. Learn more about your loved one’s medical needs.
  4. Keep a medical diary of requests that are fulfilled and those that are not.
  5. Request their previous medical history from outside physicians and have it sent to ADC.
  6. Request their prison medical records maintained by ADC.
    a. It may be difficult and time consuming for an attorney to do this alone.
    b. Work with your loved one (and their attorney, if hired) to complete this request from the inside.
  7. If you engage an attorney, be sure that visitation, phone calls and access to inmate medical records are established as soon as possible.

At Wilson and Haubert, we have experience dealing with inmate medical issues, and we’re here to help your loved one receive proper medical care.

If you feel that your loved one is not receiving proper medical treatment, call us today so we can get started protecting their access to medical care.

The entire appeal process in Arkansas can take as little as four months and up to two years.

The four-month figure is not realistic, but it’s theoretically possible. It would require that everyone involved (appellant, appellee, court reporter, circuit clerk, trial court, Supreme Court clerk, and appeals court) handle their business immediately. This never happens.

Appeal Process: After Trial Court

After the trial court makes its decision and enters an order, the appellant has thirty days to file a notice of appeal, but she might also file a motion for reconsideration or motion to vacate or motion for a new trial. When one of these motions (called a post-trial motion) is filed, time is added to the process.

The appellant must wait on the court to make a decision on the motion. Once the decision is made (or the court never does anything), the 30-day period to file the notice of appeal begins. This could transform this stage of the appeal process from 30 days to 70 days.

Appeal is Filed

Once the notice of appeal is filed, the appellant has 90 days to “lodge” the record. However, because the appellant is waiting on the court reporter and circuit clerk to prepare the record, it might take longer. The appellant can request an extension of time from the appeals court if the record is not ready by the 90-day mark.

The appellant can request multiple extensions of time, but the record must be lodged within seven months of the notice of appeal. We’re at nine months already.

Once the record is lodged, the appellant has thirty days to file the brief, abstract, and addendum. It is pretty common practice for the appellant to request an extension of time for this, because it is a huge task. She can get one seven-day extension and then three thirty-day extensions. That’s another possible four months, which brings us to thirteen months.

The appellee gets the same option, with the three extensions, bringing us to sixteen (!) months.

The appellant then gets the option of a reply brief, but that will only set us back another ten days.

Once the appeals court takes the case to make a decision, it normally takes about a month for it to render an opinion. That puts us at about eighteen months from trial decision to appeals decision, with no real detours along the way. Everyone took their precious time, granted, but there wasn’t any significant setbacks.

Once the decision is made, the losing party can file a motion for rehearing or motion for review (or both, in certain instances). This pushes the process out another month for briefing and probably another month for a decision.

At this point, we’re twenty months into the process, factoring in only the normal things that happen and the maximum time allowed. If, however, the appeals court has to send the record back to the trial court to get fixed, that is more time. If a brief or abstract is deficient, that can also be more time. There are many potential delays along the way.

This purgatorial sequence of events reiterates the most important part about handling an appeal: It’s best to win at trial. The only thing more painfully slow and tedious in the legal process than trial is an appeal.

The “one leg stand” is the third and final Standardized Field Sobriety Test a police officer will use on a person they have stopped for suspicion of driving while intoxicated in Arkansas.

The one leg stand is broken into two parts. First is the Instruction stage. Second is the Balance and counting stage.  In the Instruction stage the person is required to stand with their feet together and their arms placed by their side and listen to the officer explain and demonstrate the test.  During the second stage, the person must raise the foot of their choice approximately six inches off the ground with their hands by their side while looking down at the elevated foot. The person must then count to thirty out loud.

During the test, the officer is looking for four different clues that the person may be intoxicated. The officer checks to see if the person puts their foot down during the test, whether the person uses their arms for balance, whether the person is swaying, and whether the person hops to maintain their balance.

The one leg stand is one of the NHTSA validated field sobriety tests. Initial research of the one leg stand showed it to be around 65% accurate in determining when a person’s blood alcohol content was at or above 0.10.

The instructions for the one leg stand say that it must be performed on a hard, level, non-slippery surface. If the roadside where the test is being performed is not hard, level, or non-slippery, the test isn’t supposed to be done, and only the Horizontal Gaze Nystagmus test should be given.

These are the instructions for the test, but that’s rarely what happens in the real world. This is good for Arkansas Defense Attorneys who can use the instructions to invalidate the test results when the test is not performed as designed.  That means that if the test was done on a roadside that was unlevel, soft, or slippery, we can likely get the results of the test thrown out.

Although the test is considered a NHTSA validated test, there are some people who the police aren’t supposed to give the test to. The test is not designed for individuals over the age of sixty-five.  The test is not designed for people with any type of inner ear issues. The test is not designed for people who have leg or back problems. The test was not designed for people who are more than 50 pounds overweight.

All in all, the test has many flaws and many ways we can attack it at trial.

Also, with some of the specific instructions regarding when and how the test should be administered, the actual administration or non-administration of the test can be evidence of whether or not it was actually appropriate for the officer to have conducted other standardized field sobriety tests.  This means that if the test shouldn’t have been given, we may be able to say other tests shouldn’t have been given.

One of the most important tools in assessing whether or not the test was administered correctly is the police body or dash cameras.  Without the test being preserved on video, in many cases, it is very hard to initially determine if the test was performed correctly or not.  A skilled Arkansas DWI Attorney will be able to review all the evidence and pick out the issues that may be present in the field sobriety tests.  However, it is very important to get an attorney quickly after an Arkansas DWI arrest.  Police departments are only required to preserve videos for certain time periods absent specific orders to do otherwise.

We know facing a DWI can be scary.  Make sure you and your rights are protected.  Call us today, so we can start working on your case and take the proper steps to preserve any defenses you may have.

In my job as an estate and elder law attorney, I speak to people who have decided to start their end of life planning on a daily basis.  As a part of the first conversation I have with these folks, I usually ask what made them decide to start planning now.  Many people live into their seventies before they decide to start planning.

I am often fascinated by their answers.  Most of the time, these people have seen something bad happen to a friend or family member because they failed to start planning in time.  As a result, they want to avoid the same happening to them.

The sad thing is that most people are driven to estate planning out of fear.  I’ll be making a list of the fears that drive seniors to do planning, so that hopefully some of the folks reading this won’t wait until something bad has happened to contact us.

I am going to share these over the next few blogs.  If you are experiencing the same fear, please seek legal counsel.  These fears are natural, but we can sort most of them out with some simple estate planning.

Losing Your Home Due to Bad Health or Mental Incapacity.

This may not be the most feared, but it is definitely near the top.  This fear is a mix of some of the things people fear most.  It involves not just losing your health, it also means the loss of independence, which often means the loss of your home as well.  Moving in good health is bad enough but being forced to move to an assisted living home, or even worse to a nursing home, can make a lot of people anxious.

What if your health or memory fails you?  What if you can’t drive or take care of your personal needs?  You can decide right now how you want things to go in these situations.  It is better to make these decisions while you have a healthy frame of mind instead of waiting until it is too late.

In other words, have a plan.  Get the basic legal documents in place.  Then seek legal counsel on more in-depth planning which suits you best.  Learn about your options from someone who’s had years of experience dealing with these issues.

One of the best things you can do to protect yourself is to force yourself to learn the technology which brings independence. Computer skills or smart phone skills may be the difference in staying home or not.  The ability to shop from home for all your needs is huge.  If your ten-year-old grandchild can do it, you can too.  These skills will allow you to get transportation, shop from home, find good housekeeping, maintain your loved ones ability to monitor your health, and will allow you to have quick access to security, police and emergency services, as well as alerts to health care providers in case of a crisis.

I will write about other fears some people experience in upcoming blogs.  If you are seeking someone experienced to take care of your needs, please give us a chance to help you.  It could mean the difference between staying in your home, and not.

We often deal with clients who need an estate plan, but don’t realize they need what’s called a “power of attorney” or “POA.” One of the main questions we ask when we draft estate plans is, “who do you want to take care of your money when you can’t do it yourself?” This is a hard question for most people to answer. A little explanation: 1) the person giving the power of attorney is the principal and the person who is appointed as power of attorney is the agent or attorney-in-fact. Now for the stuff you want to know:

Do you know how to sign your name as a Power of Attorney? 

Does My Power of Attorney Have Control of My Affairs Right Now?

This question is both a yes and no. You can have an immediate POA, and it is exactly what it sounds like – it is effective as soon as you sign it. You can also have a “springing” power of attorney, that “springs” into effect when an certain event occurs. This is typically when you lose capacity (you can’t make decisions for yourself anymore). When we draft springing POA we typically make them spring into effect when you lose capacity. We define you losing capacity as when one of the following happens: 1) two independent doctors declare you incapacitated, 2) a court declares you incapacitated, or 3) you disappear for 30 days.  See Ark. Code Ann. § 28-68-109.

Always remember your POA is your agent, that is – they have to do what you tell them. You do not have to do what they tell you.

When does My Power of Attorney Lose Control?

Your POA can lose their power when one of several events occur: 1) the POA ends based on a specific date in the document, 2) a guardianship over you is established, 3) the POA is revoked, or 4) a court removes the POA.

When does a Power of Attorney End?

A POA can end for several reasons. The first is that you put an end date on the power of attorney. Such as “This power of attorney is valid until January 1, 2045.” On January 2, 2045, that power of attorney is no longer valid. If a power of attorney is not durable it will end when you lose capacity.

If the power of attorney was for a limited reason, it will end when the need for the power of attorney is over. For instance, a husband and wife are buying a house and the wife is out of town when the title company schedules the closing. The wife can sign a power of attorney ahead of time granting the husband the authority to close on the house and nothing else. The power of attorney would end after the closing was completed.

See Ark. Code Ann. § 28-68-110.

A POA also ends when the principal dies. That brings up:

What is an Arkansas Probate?

How to Avoid Probate (and Family Fights) Over a Bank Account

Probate and Estate Adminintration

If I have power of attorney, why did someone file for guardianship?

When family members are fighting over POA, one of them might eventually file for guardianship. If a court appoints a guardian, this will typically override the POA and the guardian will take control of the person’s assets.

Guardianships for Adults

When and How do I revoke a power of attorney?

You are the principal of the POA and can revoke most powers of attorneys whenever you want – as long as you still have capacity. You can also revoke a POA by signing a new one. This only works if the new one states “all previously executed power of attorneys are hereby revoked.” If the new POA does not have that statement in it, the old one stays in effect until you execute a revocation of that power of attorney.

Can my Power of Attorney Quit?

Yes. The agent may resign by giving the principal notice. If the principal in incapacitated they can resign by giving conservator or guardian notice (these are court appointed positions, so if you did not go to court, you are not a guardian or conservator). If the principal is incapacitated and there is no conservator or guardian, then the principal’s caregiver or someone else that demonstrates a sufficient interest in the principal’s welfare, or a government agency having the authority to protect the principal’s welfare, may be appointed guardian. See Ark. Code Ann. 28-68-118.

What is a Durable Power of Attorney?

A durable power of attorney is one that stays in effect when the principal becomes incapacitated. So, if you have a durable power of attorney and become incapacitated, it stays in effect. If it is not durable and you become incapacitated, it ends. Under Arkansas law, a power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal. See Ark. Code Ann. § 28-68-104.

Can my Power of Attorney override me?

No, as long as you have capacity. The power of attorney is your agent. As long as you are competent, the power of attorney cannot force you to do anything. The power of attorney has to act for your benefit and in your best interests. They have to act within the authority granted in the POA, so the language and powers granted to your agent in the document are very important. If you have lost capacity, then the power of attorney can make decisions for you and without your consent. The reason for this is because if you have lost competency, then the law views you as unable to make your own decisions.

Does my power of attorney have to tell any about what they have done, keep records, and be accountable?

Yes. An agent under a POA must keep a record of all receipts, payments, disbursements, and transactions made on behalf of the principal. See Ark Code Ann. § 28-67-114(a)(4).

An agent is required to act in your best interests. If they do not act in your best interests, then someone else who is interested can sue them.

Who has the right to bring a court case against a power of attorney?

If someone believes that an agent is not acting correctly under a POA, then certain people can ask a court to look at what the agent has done.

Those people are:

  • The principal (person who granted the POA) or the agent (the person acting as POA);
  • A guardian or conservator (these are court appointed positions, so if you did not go to court, you are not a guardian or conservator);
  • Other fiduciary (this could be a trustee or any person who has a fiduciary duty to the principal);
  • A person authorized to make healthcare decisions for the principal;
  • The principal’s spouse, parent, or descendent (child, grandchild, etc.)
  • An heir of the principal (a person who would inherit from the principal as a matter of law);
  • A beneficiary of the principal (you are named as a beneficiary in some way – could be a will, payable on death beneficiary for a bank account, transfer on death beneficiary, etc.)
  • A governmental agency overseeing the principal;
  • The principal’s caregiver or someone else that demonstrates a sufficient interest in the principal’s welfare;
  • A person that is asked to accept a POA (who you are trying to use the POA on – a bank, insurance company, etc.)

See Ark. Code Ann. § 28-65-116.

Is the Power of Attorney Liable for what they do wrong?

Yes. An agent that violates the law or the POA is liable to the principal or the principals heirs for 1) paying back the value of the principal’s property so that it is back to where it would have been if they did not violate the law, and 2) reimburse the principal or heirs for attorney’s fees and costs paid on the agent’s behalf. See Ark. Code Ann. § 28-68-117.

Does the Bank have to accept my Power of Attorney?

Yes. A person or institution can accept and rely on an “acknowledged” (notarized) POA. If they accept the POA in good faith and without actual knowledge that the signature is not genuine then they have no liability. That means if a one is fake, but the bank doesn’t know, they can’t get in trouble for allowing the fake power of attorney to use the principal’s funds.  The same goes for a power of attorney that is void or terminated.

How to Avoid Probate (and Family Fights) Over a Bank Account

What if someone refuses to accept my power of Attorney?

If someone refuses to accept the statutory form POA, then you have some remedies. After they refuse to accept it, they have 7 business days to request a certification that it is valid, a translation, or an opinion of a lawyer.

The request for any of the above must be made, if not, then on the 8th business day they are liable for attorney’s fees and costs for a court action forcing them to accept it.

A request may be made for a certification that it is valid, a translation, or an opinion of a lawyer, then it must be provided. Once it is provided they must accept the POA five business days after it is provided. If they do not accept it, then on the 6th business day they are liable for attorney’s fees and costs for a court action forcing them to accept it. See Ark. Code Ann. § 28-68-120.

You may be more confused than you were when you started reading this.  We understand that these situations can be very confusing, and we would be happy to help you work through whatever problem you may have concerning a POA.  If you have questions about an Arkansas Power of Attorney, give us a call today and we can schedule your free consultation.

Having your criminal record “sealed” (or “expunged”) is the process of having your criminal record made confidential.  If your record is sealed, the documents will be hidden from public view, but will not actually be destroyed, unless the convictions occurred while you were a minor.

However, once you get a conviction sealed, you can legally pretend like it never happened.  For instance, if you’re filling out a job application, and it asks whether you’ve ever been convicted of a felony, you can legally say no if your felony conviction has been sealed.

The process of getting your record sealed:

In Arkansas, the process of getting a criminal conviction sealed is pretty simple.

First, we would file a “Petition and Order to Seal” on your behalf.  To do this, we would need details of the offense, the case information (case number and caption), and evidence that you fulfilled all the conditions of your sentence.

Then, we’d file that petition with the Court that convicted you.  The prosecutor will get notice of our petition, and if they’re opposed to the records being sealed, they’ll file a “notice of opposition.”  If that happens, the Court will hold a hearing to determine whether the conviction should be sealed.  The prosecutor will show up and give reasons why they think it should remain on the books, and we’ll argue the opposite.  If your conviction is a misdemeanor, and the prosecutor doesn’t file a notice of opposition (they usually don’t), the Court isn’t required to have a hearing.  However, the Court is always required to have a hearing when you try to seal a felony conviction, even when the prosecutor doesn’t oppose getting it sealed.

Once the hearing is over, the judge will sign the order sealing your petition and file it with the clerk, unless the prosecutor has some really compelling reason to keep your record public.

There are certain types of convictions which can get sealed, and certain ones that can’t:

If you got convicted of one of the following you can get your conviction sealed:

  • A misdemeanor, or possession of a controlled substance, and you fulfilled all of the conditions of your sentence;
  • A class C or D felony, or an unclassified felony, and have fulfilled all of the conditions of your sentence;
  • Just about any conviction if you were a first time offender, plead guilty (or no contest), and got sentenced to probation; and
  • A prostitution conviction, if you can prove you were the victim of human trafficking.

Even if you weren’t convicted of anything, you can get charges against you sealed if:

  • You got arrested, and the prosecutor didn’t file charges against you within a year; or
  • The charges got dismissed, dropped, or if you were acquitted.

The following stuff is on your record forever, no matter what, even if you were a first time offender:

  • A serious violent felony;
  • Most sex crimes;
  • Delivering a controlled substance to a minor;
  • Any classy Y felony;
  • Class A or B felonies that aren’t drug offenses;
  • Unclassified felonies if you were sentenced to more than ten years in prison;
  • Traffic offenses if you have a commercial driver’s license; and
  • If part of your sentence for a felony involved spending any time in the Arkansas Department of Corrections.

Also, if any of the following apply to you, you can’t get your conviction sealed:

  • You have more than one previous felony conviction;
  • You haven’t yet fulfilled all the conditions of your sentence; or
  • Your case is still open.

Finally, we have to explain that certain background checks will always reveal convictions, even if they were sealed.  If you apply to work for a law enforcement agency, as a teacher, or in a nursing home, even your sealed convictions will show up on a background check.

Come talk to us.  Getting your conviction sealed is easy, cheap, and worth it.

If you have a conviction on your record, don’t let filling out a job or loan application scare you.  We can quickly file a simple petition for you, and most eligible convictions get sealed.  The cost of us filing the petition for you is nothing next to what getting denied a loan or passed by for a job will cost you.

At Wilson and Haubert, we know how scary this stuff can be, and we don’t want you living in fear any more.  Give us a call today, and we’ll get started on the process of putting your past behind you and giving you a fresh start.

Divorce can be a tough conversation to have with your children. We talked to two adults who were open about their childhood and what it looked like going between their birth parents. These are their stories about child custody and what they had to say about it. Their names have been altered, but their story has not. Through their accounts on various ages, we were able to see first hand accounts on what it is like for children, and advice to those who are going through the same process.

Emily

Emily is a current graduate student here in Arkansas. She was very young when her parents divorced, and didn’t know what was going on at the time. Emily said, “It was weird because I had vague memories about it growing up, but it was just normal to me that I had my mom’s house and my dad’s house. I didn’t see it as child custody. I just thought it was time to go see mom, and then time to go see dad. I did feel more loved whenever I saw my dad on the weekend, but I think that was because he didn’t see me for so long. I also remember being excited for having two Christmases.” Emily did say that at times she was the messenger between her parents, which affected her teenage years. It brought a feeling of having to take a side, which she said was the worst part about going through child custody. This was predominant when one parent complained about the other. Being stuck in the middle was a hard part. When asked about advice to give to children experiencing a divorce, she said “It gets better. You might not understand it now, but it is better off in the long run.”

Logan

Logan was an older teenager when his parents had a divorce. He comes from a military background and an immigrant family. When asked about his experiences he stated,“Honestly I was happy when it happened. I remember that they were fighting constantly and how unhappy they were. When they divorced, my parents lived only a few minutes away so moving in between child custody wasn’t hard. I did have some resentment towards my dad for leaving my mom, because she is an immigrant. I remember feeling like he abandoned her.” Surprisingly he smiled after the end of this statement, and talked about how close he was able to get with his brother. “Me and my little brother got closer, because we were all we had during this time,” Logan said. Years later his father was able to develop a relationship with Logan, because he was able to focus more on their relationship instead of fighting with his mother.  On his advice to those who deal with child custody, he said “Your parent’s problems do not define your life. Learn from it, and take your own direction.”

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