The general purpose of establishing a guardianship is the basic premise that an allegedly incapacitated person is unable to handle certain aspects of their lives necessitating the appointment of another person to handle those things for the incapacitated person. For example, if a person is suffering from Alzheimer’s and need to be admitted to a nursing home facility, but that person is not of sound mind enough to get themselves admitted for the proper care, then the Court may need to appoint a guardian to help facilitate the acquiring of the care needed for that person. Guardianship law in Arkansas is designed to protect and promote the well-being of incapacitated persons, ensuring their maximum self-reliance and independence. The law outlines the duties and responsibilities of guardians, the process for establishing and terminating guardianships, and the qualifications for guardianship appointments. It also addresses the transfer of guardianships from other states and the specific provisions for minor children and adults under guardianship.
What is a Guardianship?
Guardianship for an incapacitated person is used only as necessary to promote and protect the well-being of the person and their property, encouraging maximum self-reliance and independence, and is ordered only to the extent necessitated by the person's limitations.
Definitions related to guardianship are provided in Arkansas statutes to clarify the roles and proceedings involved. The statutory definitions include, but are not limited to:
Guardian – A person appointed by the court to have the care and custody of the person or of the estate, or of both, of an incapacitated person. Care and custody of the incapacitated person includes ensuring their health and general well-being. If the incapacitated person is a minor, the guardian must make sure that they are protected, properly trained and educated, and that they have the opportunity to learn a trade, occupation, or profession. Care and custody of the estate includes protecting and preserving the estate, or the assets, of the incapacitated person.
Guardian Ad Litem – A person appointed by the court to represent the best interests of a ward, a child, or an unborn person in a particular proceeding. The term “ad litem” means “for the lawsuit”, indicating that the guardian’s role is specifically for the duration of the related lawsuit. These guardians gather information about the circumstances of the case, report their findings and recommendations to the court, and sometimes appear in court to advocate for the best interests. These guardians may also continue to monitor the situation after the court’s final decision to ensure the court orders are being followed. Overall, their representation and role is focused solely on the best interest of the child or incapacitated person, with no regard to the interests of other parties to the lawsuit.
Incapacitated Person – A person who is unable to manage their personal or financial affairs due to mental or physical limitations. This incapacity can be temporary or permanent, and it typically results from conditions such as mental illness, developmental disabilities, brain injuries, or severe physical illnesses that impair cognitive function. The impairment causes a lack of sufficient capacity to make or communicate decisions to meet the essential requirements for their own health or safety or to manage their estate. Common situations involving incapacitated persons include, but are not limited to, elderly individuals with dementia, people with severe mental illness, people with brain injury, and young adults with cognitive or developmental disabilities.
Who Can be a Guardian and How is a Guardianship Established?
Generally, a guardian must be a natural person, a resident of the state, at least eighteen (18) years of age, of sound mind, and not be a convicted or unpardoned felon.
The petitioner must prove the necessity of a guardianship by clear and convincing evidence. The guardianship should be limited to what is necessary to protect and promote the well-being of the person and their property, with the ultimate goal of maximizing the independence and self-reliance of the incapacitated person. Specific conditions are outlined for minors and those under guardianship due to minority, including the possibility of continuing guardianship until the age of twenty-one if certain conditions are met.
A court order establishing a guardianship must contain findings that the respondent is incapacitated and in need of a guardian. The order may limit the guardian's powers and define the legal and civil rights retained by the incapacitated person. The court may appoint one or two guardians, specifying the nature of the guardianship and the bond amount.
Charitable organizations or humane societies can also be appointed as guardians for minors if they provide the major portion of the minor's support, the minor is abandoned, or the parents are incapacitated or unfit. A home study and background check are required for unrelated or distantly related guardians.
What are the Duties and Responsibilities of a Guardian?
The guardian of the estate must exercise due care to protect and preserve the estate, invest and apply it as provided by law, account for it faithfully, and deliver the assets to the entitled persons upon termination of the guardianship. The guardian of the person must care for and maintain the ward, ensuring their protection, training, and education.
When and How is a Guardianship Terminated?
Guardianships can be terminated under various circumstances, such as when a ward reaches the age of majority, marries, or is adjudicated competent. Additionally, a court may terminate a guardianship if it is no longer necessary or in the best interest of the ward, or if the ward is no longer a resident of Arkansas. The guardianship of a minor can also be terminated if a fit parent revokes their consent and petitions for termination, although the court may decline if the guardian contests the fitness of the parents.
Guardianship terminates upon the ward's death, adjudication of competency, marriage (if the ward was a minor), or reaching the age of majority. The court may also terminate guardianship by order.
Upon the death of a ward, the estate is distributed according to decedent estate laws.
Special Circumstances
Parents who are chronically ill or near death can have a standby guardian appointed for their minor children. The standby guardian's authority takes effect upon the parent's death, mental incapacity, or physical debilitation.
The court can accept the transfer of guardianship or conservatorship from another state, recognizing the other state's order and determining if modifications are needed to conform to Arkansas law.
Located in Batesville, Melbourne, and Heber Springs, Arkansas, and serving all of Arkansas, Reeves Law Firm stands ready to handle any estate, family law, guardianship, probate, or litigation matters that may arise.
Reeves Law Firm primarily serves Independence County (Batesville), Jackson County (Newport), Sharp County (Ash Flat, Highland, Cherokee Village), Lawrence County (Walnut Ridge), Cleburne County (Heber Springs, Greers Ferry, Fairfield Bay), Izard County (Melbourne), Stone County (Mountain View), White County (Searcy), and Baxter County (Mountain Home).