Guardianship Explained
What is guardianship? In legal terms, a "guardian" is "a person granted authority by a state court to manage the property and rights of a ward." In other words, a guardian is someone who looks after another person’s health and wellbeing when they cannot do so themselves. The term "guardianship" is used for a few related concepts, but generally it is considered a situation where the court appoints someone, called a "guardian," to handle the affairs of a person unable to do so.
There are two main types of guardianship , though:
An "interdiction" (also called "conservatorship") applies to persons who have become incapacitated and cannot manage their own affairs, while an "adoption of minor" custody situation occurs when an adult assumes responsibility for a minor child.
Guardianship is a legal proceeding and takes place in the Probate Division of the Chancery Court in Arkansas. The petitioner must meet statutory requirements in order to qualify as a guardian. Because guardianship is handled through a court order, it is a public record. When a guardianship is necessary, we recommend you consult an experienced Arkansas attorney to help you through the process.
Different Forms of Guardianship in Arkansas
There are three different types of guardianships recognized in Arkansas: guardianship over an adult, guardianship over a minor, and emergency guardianship. The nature of the guardianship needs to be adequately explained to avoid confusion.
Guardianship over an adult is the most common type. The Arkansas Probate Code governs this type of guardianship. The most basic premise that should be understood is that the purpose of becoming an adult guardian is to protect the ward’s person and estate or both.
Guardianship over a minor exists for the benefit of the minor. Federal law also recognizes two different statutory forms of guardianship for children: standby and successor.
Emergency guardianship is available to any person who has a legally recognized right to file a petition for guardianship. An emergency guardianship exists for the express purpose of getting a qualified individual in place to care for the person or estate of the minor or adult. In other words, emergency guardianship is only entrusted to a person for the briefest period of time necessary to preserve the health and property of a minor or adult.
Criteria for Guardians to Meet
In addition to the age requirement, Arkansas law contains additional requirements for appointment as a guardian. Living in Arkansas is not a formal requirement for appointment as a guardian. The court has jurisdiction over the guardianship proceeding if the person requiring a guardian is an Arkansas resident, or the person resided in Arkansas for at least 6 months immediately before the commencement of the proceeding. A person residing in Arkansas for the purpose of voting does not qualify as a resident for guardianship purposes.
Arkansas law establishes additional requirements for the appointment of a non-resident as a guardian. A non-resident cannot be granted authority until 7 days after written notice has been given to the court, of the application for such authority, specifically setting out foreign guardianship laws, the details of the proposed appointment, and of a hearing at which the applicant must appear in person. Likewise, if the proposed guardian is incapacitated, legally incompetent, a minor, has had a felony conviction, has abandoned his or her family, or is in violation of a fiduciary duty or court order, that proposed guardian will not be appointed.
A person may not be appointed as a fiduciary under a power of attorney if they are (1) an employee or creditor of the principal, (2) a person who has a claim against the principal’s estate after the principal’s death, (3) a person who is reckless, unwilling, or unable to properly carry out the powers and duties of a fiduciary, and (4) using a power of attorney for illegal or improper purposes.
Filing for Guardianship
The application process for a guardianship in Arkansas begins with filing a Petition for Guardianship with the circuit court in the county where the incapacitated individual resides. The petitioner, the person seeking to become the guardian, must file the petition and must sign a verification that the facts are correct to the best of their knowledge.
After the Petition has been filed, Arkansas law requires that the Court appoint an attorney ad litem to represent the alleged incapacitated person. The attorney ad litem will personally interview the incapacitated person and will represent them throughout the proceedings in an attempt to prevent an unwarranted invasion of their civil liberties. The attorney ad litem also has an affirmative duty to report back to the Court on the merits of the Petition within 30 days of being appointed.
In recent years, there has been a growing trend for states to enact laws allowing for the appointment of a Limited Guardian as an alternative to a Full Guardianship. In certain circumstances, the appointment of a Limited Guardian can be beneficial. Arkansas has a Limited Guardianship procedure, Arkansas Code Annotated § 28-65-401. You should speak specifically with an attorney for advice on whether a Limited Guardianship may be appropriate in your particular circumstances. Only the incapacitated person’s assets, income, benefits, etc., that are necessary to care for the incapacitated person are subject to the limited guardianship.
After the Petition for Guardianship has been filed, a Notice must be served on several different individuals and organizations that have a potential interest in the guardianship. A guardian cannot be appointed until at least 14 days after the Notice has been served on everyone who is required to receive it.
Arkansas law requires due notice of the petition for guardianship, and a hearing shall be held where evidence must be produced in order to find that the person is in need of a guardian, what type of guardianship is necessary, and who is appropriate to be appointed as the guardian.
The attorney ad litem appointed for the incapacitated person will advocate on their behalf, and the petitioner, the alleged incapacitated person, and any of the required interested persons, will be able to file Motions and argue their position at the hearing in front of the judge.
Upon finding that a guardianship is necessary, the judge will enter an order appointing the guardian. The judge also has the authority to issue specific instructions for how the guardian should carry out their duties. The judge will require the guardian to file a bond before assuming their duties, a statement of acceptance of their duties, and a plan for the incapacitated person’s care.
A guardian’s duties and responsibilities are set out in Arkansas Code Annotated § 28-65-103. These duties include making arrangements for medical treatment, safeguarding assets, planning for financial needs, setting goals and determining how to fulfill those goals. A guardian should make the information and location of that information available to the incapacitated person’s other family members or loved ones.
The length of time that a guardianship lasts varies from case to case. A temporary guardianship lasts only until a hearing on the merits of the guardianship can be held. Most Full Guardianships last until the death of the ward (the incapacitated person), the ward regains capacity, or the guardianship is otherwise modified or terminated by the Court. A Limited Guardianship terminates 12 months after filing unless extended.
Guardianship is a serious matter, and this article is not intended as a substitute for sound legal advice. If you are in need of assistance navigating Arkansas’ Guardianship laws, please contact our office to schedule a consultation.
Guardian Duties and Privileges
In Arkansas, guardians are granted significant authority and responsibility over their wards. The specific legal rights and responsibilities of a guardian are set forth in Ark. Code Ann. § 28-65-205(a). These rights include the ability to: The law imposes a continuing obligation on a guardian to act in the best interest of their ward. The law bestows upon the guardian certain rights, but these rights are offset by considerable responsibilities. The responsibilities include the following: Powers and duties may be expanded or limited upon the discretion of the court. Ark. Code Ann. § 28-65-209. An appointed guardian must file an initial plan , an annual report, and a final report with the court. Ark. Code Ann. § 28-65-212(a). A guardian cannot be compensated for services unless allowed by court order. Ark. Code Ann. § 28-65-210. The ward is not responsible for expenses unless ordered by the court. Ark. Code Ann. § 28-65-204. Arkansas courts will not normally relieve a guardian of their legal obligations. The courts of Arkansas will evaluate the situation based upon the best interests of the ward and may appoint a successor guardian. Guardians must make certain that they comply with statutory provisions and court directives or risk penalties.
Ending or Changing Guardianship
A guardianship arrangement, while often necessary, is not a permanent legal solution. Life circumstances often change, and it may be necessary to modify or terminate the guardianship. The Arkansas Code Annotated contains specific sections outlining the process for the modification or termination of guardianship arrangements.
One of the most common reasons to terminate a guardianship arrangement in Arkansas is the passing of the ward. Ark. Code Ann. 28-65-205 and Ark. Code Ann. 28-68-205 state that upon the death of the ward, the guardianship must terminate.
A change of circumstances may also be cause to terminate a guardianship. Ark. Code Ann. 28-65-206(a) states that either the guardian, the ward, or other significantly interested parties may file a petition in the circuit court for the modification or termination of the guardianship if the "circumstances of the ward or the purposes of the guardianship have changed so that the guardianship is no longer necessary." It does not matter whether the changes are positive or negative; if the situation has changed to the point where the guardianship is no longer necessary, it may be offered up for termination.
In some cases, a change of circumstances may require that a change be made in the guardianship, rather than call for its complete termination. For example, guardianship of a minor will likely need to continue until that child reaches adulthood. However, the set-up of the guardianship may need to change based on that child’s compartment changing needs. The rules for modifying a guardianship are similar to those concerned with terminating a guardianship. Either the guardian, the ward or other significantly interested parties may petition the court to modify the terms of the guardianship.
Procedurally, termination will be very similar to what takes place when a guardianship is first established. A notice of hearing must be filed with the state 30 days prior to the modification or termination. That means that filing your suit as soon as you are mentally or physically capable is important. The sooner you file your modification or termination, the sooner you’ll have notice before the hearing can take place.
Legal Aid and Resources
Legal resources and support for Arkansas guardianship considerations, appeals, and related issues are available through various organizations and help lines dedicated to serving individuals with disabilities, the elderly, and legal professionals. The Protection and Advocacy System for Individuals with Developmental Disabilities in Arkansas provides a wealth of information for individuals seeking assistance navigating the complexities of guardianships and related matters. Organizations such as the Council on Developmental Disabilities offer educational resources and advocacy support, while the Department of Human Services provides crucial information on guardianship programs and relevant services across the state . The Elder Law Section of the Arkansas Bar offers a Resource Guide designed to assist residents exploring legal options. In addition, the National Guardianship Association serves as a valuable national resource, providing guidance on the responsibilities and best practices of guardianship. The Association has a "Find a Professional" feature that allows you to search for a local member. Best of all, these resources are typically available for free or at a low cost. If you have specific questions, the Legal Aid of Arkansas maintains a Toll-Free HelpLine which can be reached directly at 800-9LAW-AID.