All About Legal Guardianship in Arkansas: A Comprehensive Overview

What Does Guardianship Mean?

In general terms, legal guardianship is an arrangement that allows a designated person to care for an individual who cannot care for themselves. However, defining legal guardianship is not so simple because there are different types of guardianships and there is no universal definition of legal guardianship. Each state has its own rules but Arkansas’ guardianship laws are relatively similar to other states.
In Arkansas, the legal environment surrounding legal guardianship is governed by the Arkansas Code Annotated 9-13-101 et seq. In sum, Ark. Code Ann. 9-13-101 requires that the Circuit Court of the individual’s county of residence or current location must appoint the legal guardian. Although the guardian must submit an annual report to the court, Ark. Code Ann. 9-13-104 makes it clear that guardianship is a form of "substituted judgment" and not power of attorney . The law limits attorney-in-fact and personal representative authority with respect to financial affairs to the powers explicitly delegated to that office in power of attorney and Personal Representative forms authorized by the Arkansas General Assembly. Ark. Code Ann. 28-68-106. As stated in Ark. Code Ann. 9-13-112, the law also makes it clear that limited or plenary (i.e. total) guardianship is only appropriate for those individuals for whom an alternative is not feasible. If there is a less restrictive method of meeting the individual’s needs, then the court cannot impose a guardianship. Ark. Code Ann. 9-13-103, 9-13-109.
A legal guardianship also named the "guardian" is a fiduciary relationship in which the assigned individual has legal authority over the individual. It is important to note that as a fiduciary, the legal guardian has some obligations, including the need to prove their financial record keeping if requested by the court. Ark. Code Ann. 9-13-303.

Types of Guardianship in the State of Arkansas

There are two primary types of guardianship in Arkansas: guardianship of a minor and guardianship of an incapacitated adult. While these two concepts are different as it relates to the person under a guardianship, they are governed by the same statutes in Arkansas.
Guardianship of a Minor
A guardianship of a minor essentially comes into play when one parent is awarded sole custody in a divorce and the other parent is awarded visitation rights. For example, if one parent is awarded sole custody of children in a divorce proceeding, then the other parent is awarded rights to visit with the minor children. The parent awarded visitation rights is subject to having a guardian appointed over the minor children. The guardian is usually the parent awarded sole custody. The legal term for this idea is custodial parents. In this vein, the parent with custodial rights control the affairs of the minor children until the children turn 18 years of age. While there are instances when a guardianship of a minor comes into play in a divorce, there are other instances as well. If one of the minor children’s parents passes away, the other parent may seek a guardianship of the minor children. In most cases, the surviving parent will be awarded the legal rights of guardianship over the minor children. If the minor’s parents are not married and one of them passes away, the surviving parent will still be awarded the legal rights of a guardian over the minor children. The idea here is that a parent cannot just relinquish control of a minor child. The courts will not allow it. Just because the parent is not married to the other parent does not allow them to walk away from their responsibilities of minor children.
Guardianship of an Incapacitated Adult
A guardianship of an incapacitated adult comes into play when an individual demonstrates the inability to handle their own affairs. In other words, the person is incapable of making decisions and fulfilling the duties required of him or her. The term legally incapacitated individual is defined under Arkansas law as a person who is proved to be unable to effectively receive and evaluate information or to communicate significant judgements or to manage property or financial affairs because of a physical or mental condition. In other words, a person who cannot physically or mentally take care of themselves may require a legal guardian to step in and handle those tasks. It may also be the case that an individual is influenced by another person to make decisions contrary to the best interest of the incapacitated person. This may occur where, let’s say, an elderly person has substantial wealth. The wealth may be in a bank or other financial institution. If the elderly person is confused and befriended by a younger person, the elder person’s financial resources may be subject to abuse by the younger person. Just as with a minor child, guardianships of incapacitated individuals are subject to the court overseeing the guardianship. In other words, the courts of Arkansas have an important role in determining the legal guardianship needs of incapacitated individuals. The courts will conduct a hearing prior to appointing a guardian for a minor child or incapacitated adult.

Who Qualifies for Guardianship?

Most often, a person who files for guardianship is the family member to whom the child is closest, almost always a parent or relative. The person must be at least 18 years old and reside in Arkansas. If the proposed guardian is not a resident of Arkansas, the court may appoint the guardian if the court has jurisdiction over the ward—for instance, if the ward resides in Arkansas, or the proposed guardian has property in Arkansas.
Arkansas law does not permit a felon to serve as a guardian. The following may not be appointed as guardian of any person: a. Any person who has been convicted of the offense of homicide or of a substantiated founded case of child abuse or neglect as defined in § 12-18-103; or b. Any child welfare agency or foster care treatment facility as defined in § 9-28-402, unless by order of the circuit court having jurisdiction over the child welfare agency or foster care treatment facility, after a hearing upon the merits, the child welfare agency or foster care treatment facility can demonstrate by clear and convincing evidence that the best interests of the child will be served by the appointment of a guardian for the child.
The order appointing a legal guardian terminates all parental rights.

How to Obtain Guardianship

For most individuals with the legal capacity to choose their own guardians, that means filing a petition. A general petition for guardianship over someone over the age of 18 requires different forms and steps than a petition over a minor (guardian of a person and estate). A guardian is nothing more than a decision maker who will have the right to act for another person concerning a particular legal decision. Once someone has been appointed, they then control the person and/or finances of the protected person.
An example of a legal guardianship would be to file a Petition in the Probate Court asserting an individual cannot care for themselves due to a physical or mental incapacity.
Filing a simple petition does not mean you will automatically be granted guardianship of someone. The court must make a review of the petition before an appointed guardian is made. The Review process – that is whether or not the proposed ward of the guardianship needs a guardian – allows the court to see if the proposed ward truly needs a guardian or if there are other options. This can last several months. The court must hold a hearing for each petition so they can effectively determine the facts surrounding the petition as well as its legitimacy.
In order to file a petition for guardianship, there are several steps that must be taken:
• You must file a completed petition for guardianship form. (Forms can be found on the Arkansas Judiciary website.)
• You must also submit medical evidence of incapacity from a qualified physician.
• You must complete a criminal background check, specifically for guardianship. You will have to pay a fee to file your forms and for the criminal check.
• A third party (a disinterested third party) must serve notice to the proposed ward (the person subject to guardianship) and anyone that would inherit the property if the proposed ward died without a will. This right failure to serve notice is grounds for objecting to a petition for guardianship.
• The final step requires the completion of a checklist with the court to ensure you have followed all of the steps. A judge must then review the checklist and after all steps are completed and accounted for, the Judge will hear the request for guardianship for the proposed ward.
Typically, the person who files the petition will serve as the proposed guardian. However, a proposed guardian does not reside in Arkansas, the person must have a family member available here to serve as both the petitioner and guardian. A guardian does not need to have a lawyer to file a petition for guardianship. However, many recommended to speak with a lawyer beforehand as it takes time for a petition to be approved and has a significant impact on the proposed ward.

The Duties of a Guardian in the State of Arkansas

When an adult in Arkansas becomes legally incapacitated or disabled due to unforeseeable circumstances, and has not previously assigned Power of Attorney to someone of their own choosing, the Court may appoint a legal guardian to oversee and manage the incapacitated person’s affairs. The guardian is legally required to act on the physical and financial behalf of the protected person. However, there are particular duties and responsibilities expected from a legal guardian, which include:
The obligations of a guardian to the protected person often goes beyond just what the law requires, especially concerning the protected person’s physical and financial needs. In essence, the role of a guardian in Arkansas is often to represent the protected person’s best interests and to be a source of support in their personal life.
Within the scope of a legal guardian’s authority over the protected person’s financial decisions, the guardian may be authorized to make gifts directly to the protected person’s minor children. A minor child may, in some cases, be an employee or business associate of the protected person. The guardian is only able to make a gift to the minor child if "necessary for his welfare." This provision typically covers gifts for education, debt, and other necessities for the minor child. However, making gifts to the minor child as an early inheritance is not necessarily in the purview of a guardian’s authority and can be considered an act outside the scope of their responsibilities.
If a guardian fails to perform the duties assigned to them or acts contrary to the best interests of the protected person, they can be removed by the Circuit Court of the county where the protected person resides. As a representative of the person they serve, it is imperative that a guardian is aware of all the legal duties they are required to perform and the powers they are granted under the law. Failure to diligently and responsibly execute their duties may result in revocation of their guardianship.

Ward’s Rights When under Guardianship

The ward retains certain intrinsic rights even when under the care of a guardian. The Arkansas Code gives guidance on specific rights that should be maintained by the ward even if they are deemed to lack capacity and are in a state of incapacity that requires a guardian. Some rights listed are basic principles of everyday life. Others are rights that the guardian is limited in exercising. The following is a summary of the rights retained by the ward even when a guardian has rule over his or her person: The ward is entitled to respect, counsel, a living environment and protection from abuse, neglect and exploitation. This includes the right to:
A guardian has no authority to consent to an abortion or sterilization for the ward. The guardian is only authorized to make the decisions included in the previous section. The Code also allows under Title 20 , Chapter 47, Part 2 of the Arkansas statutes for a representative payee, surrogate, conservator or guardian to have access to all records of the department that relate to the ward’s care. This includes any medical records, educational records, and other department records that may reveal information about the ward. The Code otherwise limits the use of information obtained in other manners for anything other than the care for the ward.
The above-listed limitations do not mean that the ward is without any rights. The ward retains rights under the law, and these rights are in place for the protection and dignity of the ward. These important rights and interests should be considered by the guardian in the course of carrying out his or her duties.

Altering or Ending Guardianship in Arkansas

The notions of modification and termination are interconnected. In the preparation of the Petition to appoint a Guardian, the list of forms typically includes a Petition to Relinquish Guardianship, a Petition to Modify Guardianship, and a Petition for Determination of Incapacity. The petition for Relinquishment is filed by the Guardian who wishes to be removed from the case. The substance of the petition must advise the Court that he/she does not feel there is any need for the Guardianship. It must be signed by the Guardian, and set forth the reason for the termination. Such a petition would require a court hearing so the Judge can determine the truth of the allegations in the petition. Any suggestion of financial malfeasance by the Guardian will undoubtedly end up with a criminal investigation by the appropriate authorities. The petition for Modification is filed by someone who wishes to change the terms of the original guardianship. The facts and circumstances will include most of the information contained in the Relinquishment, but then have additional statements that the parents are now back in the picture, or additional income is available. In the rare event that this person does not have the father’s consent, this form will suggest it is ‘not in the best interest of the minor’ to have the Court order a change of Guardian. Presenting such a petition would require a hearing as well. The Petition for Determination of Incapacity is when someone decides that current Guardianship must be terminated. The petition must be signed by a licensed mental health professional, and include specific findings of fact from that expert. This type of petition will not require a hearing, unless the other parties choose to challenge the request. An example would be a teenager about to turn 18 who opines that he or she wants to make their own decisions. The process of terminating the guardianship over a child is distinguishable from the process applicable to adults. Adulthood generally commences at the moment a person turns 18 years of age. To become an adult, a minor must have the consent of the parents or guardian to enter into a binding contract with the option of litigating terms in court. Parental consent must be given before an individual enters into a marriage contract, adopts a child or emigrate to another country. Without parental consent, the court will not recognize marital status, enforce an adoption contract, relocation or name change. To terminate a guardianship over a minor who is about to turn 18 years of age, an individual must file a Petition with the Court requesting that the Guardianship be terminated. This request must be served on the Guardian, and the child. If the Guardian agrees, the Court will terminate the Guardianship. If the Guardian opposes this measure, the child will be required to petition the Court to set aside the Guardianship.

Issues Commonly Faced in Guardianship Cases

Like most areas of the law, controversies that arise during guardianship proceed generally occur because parties have problems communicating with each other. So, one of the most common things a guardian can do to avoid a contested guardianship boil down to something very simple — talk to your family or friends. What your relative or friend did just last week may make perfect sense to them and communicating that is often all it takes to resolve issues. Communicating might also involve a meeting where people can ask questions of the proposed guardian or proposed wards, and where the guardian can explain what their intentions are in the case and what their plans will be and how their needs are to be fulfilled. The most common issues that arise in these cases are:
Whether the proposed guardian will: 1) honor the wishes of the ward; 2) treat the ward with respect; 3) provide health care according to any advance medical directive; 4) seek court approval for major decisions concerning the ward; 5) report at least annually to the court; 6) refrain from doing the following unless a court order is entered: a) alter a trust that is the same as the ward’s estate or property; b) change the designation of beneficiaries of life insurance, retirement, or employee death benefits; c) revoke gifts or testamentary gifts made to the ward in other documents; or d) change the beneficiary provisions in wills and codicils to the ward’s will.
Whether the proposed guardian is qualified to perform the duties and responsibilities of a guardian. Whether any restrictions should be imposed on the guardian’s conduct. Whether the proposed guardian is being properly compensated. Whether a surety bond is required. Whether an investigation is needed, such as a report from the local Department of Human Services. Whether an attorney ad litem (advocate) should be appointed to represent an alleged incapacitated person in the case. Whether a guardian ad litem should be appointed to represent a minor ward or an ad litem for the interests of creditors in the case. Whether the names of several persons should be specified as alternatives for serving in the fiduciary capacity. Whether the same person can serve in more than one fiduciary capacity. Whether the requirement for surety bond should be waived. Whether another person should be named to act as guardian instead of the proposed guardian. Whether the ward’s competency should be considered in order to determine if a guardian is needed and/or whether to name a temporary guardian. Whether the court should approve or disapprove the appointment of a proposed guardian. Whether putative (claims to be) incapacitated person’s disability should be found as a matter of law. Whether a hearing should be set to handle the entry of an order appointing a guardian, if one is needed and a temporary guardian’s authority should be cancelled or ended. Whether additional parties should be added. Whether the alleged incapacitated person should be provided notice of the complaint filing and sought proceedings. Whether a medical certificate should be filed supporting the complaint. Whether other witnesses should be subpoenaed. Whether certain exhibits supporting the complaint should be filed. Whether the complaint should be filed before obtaining a medical certificate. Whether additional pleadings should be made for something other than a complete guardianship. Whether a guardian should be allowed to exercise express authority over the ward’s will execution (not required for a full guardian). Were an alleged disabled person should be allowed to move from the State of Arkansas. Whether orders should be issued regarding a ward’s qualification for Medicaid. Whether the guardian’s fees should be determined. Whether the surety bond requirement should be waived. Whether previously unfiled tax returns should be filed. Whether payment services should be continued. Whether payment warrants should be issued. Whether the appointment of a conservator should be denied. Whether a guardian ad litem should not be appointed if all petitions and certificates are in proper order. Whether the will and instruments should be denied. Whether an attorney ad item should be appointed to represent creditors and/or wards, but note that the court has no duty to appoint an attorney ad litem to represent an alleged incapacitated person. Whether a surety bond should be waived. Whether a hearing date should be set. Whether notice of hearing should be waived. Whether the continuing conservatorship of the estate should be terminated.

Legal Help and Resources

If you are facing a guardianship case, finding the right legal assistance can be vital to the outcome of your case. A trusted Arkansas guardianship attorney may be able to help you understand the process of securing a guardianship order, or how to contest a guardianship you believe may not be in the interest of your loved one. Several resources are available to you: Provide representation to those who have low incomes, the elderly or disabled. If you have an income below 125 percent of the federal poverty level, you may qualify for free legal assistance through the organization. Part of the national Council on Aging, which is dedicated to empowering older adults through advocacy, research and education. NCOA supports elder rights and works to improve the lives of older adults through education and social programs. A non-profit legal assistance program that works to prevent the abuses of the elderly , seniors, people with disabilities and low-income individuals in civil matters. CLARO can help you with a wide range of civil issues, such as: This program will not screen for criminal cases, traffic cases, bankruptcy or divorce cases involving children. These programs provide access to free legal services for low-income Arkansas residents. Programs support the legal community through training, outreach and education. Some programs include: The Arkansas Commission on Child Abuse, Rape and Domestic Violence provides legal publications through its website. The authority reviews Arkansas law and recommends legislation to strengthen protections for victims of domestic and intimate partner violence.