Full Opinion

Cite as 2026 Ark. App. 407 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-25-489 IN THE MATTER OF THE Opinion Delivered September 16, 2026 GUARDIANSHIP OF ADAHI BUSTILLOS APPEAL FROM THE BENTON COUNTY CIRCUIT COURT YANNETT PINALES AND YP [NO. 04PR-24-1100] CONSTRUCTION, LLC APPELLANTS HONORABLE XOLLIE DUNCAN, JUDGE V. AFFIRMED NALLELI BUSTILLOS DIAZ, IN HER CAPACITY AS GUARDIAN OF ADAHI BUSTILLOS APPELLEE BRANDON J. HARRISON, Judge Two defendants in a lawsuit Nalleli Bustillos Diaz filed as guardian of the estate of her brother, Adahi Bustillos, moved to intervene in this guardianship proceeding to vacate her appointment. Bustillos prospered in the Northwest Arkansas construction industry before being unexpectedly deported to Mexico in 2024. His sister petitioned for guardianship of his estate in December 2024 because he said the person who had been managing his businesses in his absence had cut off his access to company information and bank accounts and transferred at least $400,000 to parts unknown. The petition alleged Bustillos’s lack of “capacity” (read: “ability”) to manage his affairs at a distance following his deportation and invoked a statute that deems “[p]ersons who are detained or confined by a foreign power” incapacitated. Ark. Code Ann. § 28- 65-104(2) (Supp. 2025). The circuit court entered an order of permanent guardianship 6 February 2025. It authorized Diaz to commence legal proceedings to partition and sell Bustillos’s remaining property and pursue any civil claims related to his businesses and the disappearance of company funds. Yannett Pinales and YP Construction, LLC (which we ignore in this discussion to simplify things), moved to intervene about two months later. She argued the guardianship was invalid because there was no proof Bustillos was under any incapacity. It is settled that Pinales could not unwind Diaz’s appointment in the civil case; that would be an impermissible collateral attack. Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008). Our supreme court has also settled that the analysis under Arkansas Rule of Civil Procedure 24—not the statute defining “interested person[s]” in the Probate Code, Ark. Code Ann. § 28-1-102(a)(11) (Repl. 2012)—controls who can enter and participate in a probate proceeding. Helena Reg. Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005). The circuit court denied Pinales’s motion on review of “the pleadings filed herein . . . and all other matters and things properly before the court.” The filings included Bustillos’s 3 December 2024 affidavit requesting his sister be appointed guardian of his estate. The same day, he executed a durable general power of attorney immediately conferring on Diaz powers that included to “commence and prosecute in [his] behalf any suits or actions or other legal or equitable proceedings . . . and to maintain and continue the same.” He filed a waiver of service, entry of appearance, and consent to guardianship, too. All were 2 notarized; the affidavit and power of attorney were attached to the petition. Pinales does not deny that Bustillos signed those documents; she objects that appointing a guardian was improper because Diaz did not demonstrate Bustillos lacked capacity in any relevant sense. Though the appropriateness of intervention in a probate proceeding does not ordinarily turn on issues of standing, this one tempts us in that direction. (Can an alleged tortfeasor really use a statute meant to protect the ward against being erroneously deprived of decision-making authority to frustrate his attempt to appoint a guardian of his estate because he is competent to make that request?) Regardless, the circuit court was right to deny intervention here. Granting guardianship without adequate proof of incapacity is reversible error. In re Bailey, 299 Ark. 352, 771 S.W.2d 779 (1989); Autry v. Beckham, 2014 Ark. App. 692, 450 S.W.3d 247. But it is not jurisdictional. The circuit court could vacate the guardianship order. Ark. Code Ann. §§ 28-1-115 & 28-65-103(a) (Repl. 2012). But no vacatur under that provision “shall affect any act previously done or any right previously acquired in reliance on such an order or judgment.” Ark. Code Ann. § 28-1-115(b). The guardianship subchapter seems to incorporate the rule that removing a personal representative after letters are issued does not invalidate her acts before removal. Ark. Code Ann. § 28-65-219(b) (Repl. 2012) (incorporating Ark. Code Ann. § 28-48-105(b)). In In re Estate of Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120, our supreme court concluded from those two statutes that a probate order vacating the appointment of a special administrator did not make a complaint he had filed in that capacity a nullity. And in Green v. Nunez, we held that, for the same reason, some civil defendants’ attempt to 3 intervene in an estate administration to vacate an appointment was hopeless, so they had “no interest in the probate action and no reason to intervene, either as a matter of right or by permission.” 98 Ark. App. 149, 153, 253 S.W.3d 11, 14 (2007). On this record, we conclude Pinales has even less reason to intervene. As in Taylor and Green, vacating Diaz’s appointment as guardian would not invalidate the civil suit against Pinales. Undermining the guardianship by demonstrating Bustillos retained decision- making capacity when he asked for one would only vindicate his simultaneous grant of authority to Diaz to sue as his agent under a durable power of attorney. Bustillos himself is the real party in interest either way. Thurman v. Baker, 76 Ark. App. 403, 65 S.W.3d 478 (2002). Pinales’s problem, the record indicates, is that he wants this done. Affirmed. KLAPPENBACH, C.J., and MURPHY, J., agree. Rainwater, Holt & Sexton, by: Milton A. DeJesus, of Counsel; and Robert S. Tschiemer, for appellants. Rojas Smith Attorneys, PA, by: Annamary C. Beaver, for appellee. 4