How Guardianship Works in Arkansas for Children & Family

Updated

Guardianships provide essential tools for family members taking care of loved ones by granting them decision-making authority recognized by doctors, banks, and other institutions.

Guardianships for minors allow another adult to step into the role of the parent to ensure that a child is taken care of when the parents are unable or unwilling to care for them. They can also provide authority to ensure the preservation of a minor’s assets until they reach the age of majority. 

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Just as importantly, adult guardianships provide much-needed protection for the elderly, incapacitated, and those with special needs that make them vulnerable to exploitation or leave them unable to care for themselves without some assistance.

Many options for guardianship exist. While it can be confusing to get started, these intricacies provide the highest level of protection for some of society’s most vulnerable members.

What Types of Guardianship Exist in Arkansas?

Arkansas offers guardianships for adults and minor children. They come in many shapes and sizes because the court’s goal is to tailor each guardianship to avoid infringing on the protected person or parent’s civil liberties. Limited guardianships further restrict the guardian to specific responsibilities and powers. Guardianships can be temporary or permanent and only for care-based decision-making or managing finances.

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Arkansas?

The Arkansas probate code creates a suggested priority for guardianship appointments for adults and minors. Ultimately, the court chooses the person most suitable to serve. However, it takes into consideration any biological relationship between the respondent and the person seeking an appointment.

For minor guardianships, anyone nominated by a parent tops the list. Minors over fourteen can also nominate their own guardian, and the court gives weight to their preferences.

As with minor guardianships, anyone nominated in writing has the highest priority for appointment as guardian for an adult. Essentially, that is how you can choose your own guardian. Most people do this in their advanced directives.

What Forms Do You Need to File for Guardianship in Arkansas?

Arkansas makes its guardianship forms available free online on the Arkansas Judiciary website. The same forms are also available in an easier-to-read format through Arkansas Legal Aid

To initiate the case, you file the petition for the appointment of a guardian. That document allows you to officially open a case and provides biographical information about you, the respondent, and any other interested parties like other family members. 

You also file the acceptance of appointment and proposed letters of guardianship. In the acceptance of appointment, the person asking to be appointed as guardian submits to the court’s authority and the position's responsibilities. The court signs the letters of guardianship, and they will be your proof of authority to act on behalf of the ward.

After the appointment, the guardian remains accountable to the court and will be expected to file regular reports updating the court with the ward’s condition and explaining any use of the ward’s funds. The annual report, accounting, and inventory are all available on the Arkansas Judiciary forms page linked above. 

How Do You File for Guardianship in Arkansas?

Arkansas circuit courts hear probate matters, including guardianship cases. To file your case, find the circuit court for the county where the person subject of your case lives. Filing the petition and paying the filing fee starts the case. 

After starting the case, the petitioner arranges for the respondent to be personally served with the documents, including notice of hearing. The respondent has the right to appear and testify at the hearing. 

For adult cases, the court requires a professional evaluation to confirm the respondent’s incapacity. The professional, like a doctor, psychologist, or social worker, provides their findings to the court in a notarized affidavit or by testifying at the hearing. The petitioner typically pays any costs associated with this and, if appointed as guardian, may be able to have the fees reimbursed by the protected person’s estate.

How Do You Assign a Guardian for a Minor Child in Arkansas?

Parents have a couple of different options for choosing a guardian for their minor children. 

First, and most commonly, many parents nominate a guardian in their will. Deciding who you want to raise your children in the event of your death should be part of everyone’s estate planning process. And, while you have your mind on their financial support, it’s the perfect time to think about who would be caring for them in your absence. 

When nominating a guardian in your will, it’s a good idea to name a first and second choice. That way, you can avoid redoing your will if your first choice passes away or otherwise becomes unable to care for extra children while you’re still alive. 

Second, you can also nominate a guardian for your children in another writing. This is most typical in situations where parents anticipate their own incapacity, such as from a lengthy, severe illness or when they need someone to step into their shoes as a parent for a while – perhaps even forever, as when they face incarceration.

How Guardianship Works for Minor Children

A court-appointed guardian steps into the shoes of the parent to make legal and care decisions for a minor child. Usually, the child lives with the guardian, so beyond making legal decisions, the guardian provides the care and support generally provided by a parent. 

Guardianships serve many purposes, depending on a family’s needs. They may be temporary or time-limited while the child’s parents resolve other issues or responsibilities or even leave the country for a short time. Other times, guardianships are permanent options to provide care for a child when a parent is absent, unable to parent, or dead. 

Temporary guardianships

Temporary guardianships can last up to 90 days. Before the expiration of a temporary guardianship, the court can extend it for an additional 90 days. 

Temporary guardianships act as an expedited process when the court finds that the minor is in imminent danger. If the court appoints a temporary guardian, it can also terminate that guardianship before the expiration date if a parent or someone else proves to the court that guardianship is not necessary.

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Permanent guardianships

Permanent guardianships provide a long-term solution for the care of a minor child. They last until the child turns 18. 

Even though a guardianship is called permanent, a parent or other person can petition the court to assert that the guardianship is no longer needed or that the currently appointed guardian is inappropriate for the position.

Guardianships of the estate of a minor

When a minor comes into a substantial amount of money or property – often through inheritance or personal injury settlement – the court appoints a guardian of the minor’s estate. This appointment does not impact parental decision-making or parenting time – instead, it makes an adult officially responsible for the control and preservation of a minor’s funds. 

Typically, parents learn that this type of case is needed from the custodian of the minor’s funds or property. For example, a life insurance company might ask for proof of a conservatorship before releasing the proceeds of a policy with a minor as a beneficiary.

Standby guardianships

A chronically ill parent can request that the court appoint a standby guardian for their children without giving up their parental rights. The standby guardian’s authority takes effect as outlined in the order of appointment, which is usually upon the death or mental incapacity of the parent. The parent can also consent to it taking effect upon their physical deterioration.

The standby guardian notifies the court when the condition precedent happens so that the court can issue an order appointing permanent guardian. 

How Guardianship Works for Older Adults

Guardians for older adults serve as decision-makers and arrange care for their wards. Unlike in minor guardianships, guardians for older adults are not expected to be the care providers themselves. Of course, some provide care on their own, but as loved ones age and medical needs become more complex, guardians often arrange professional care or residential care.

Guardianships of the person

Guardianships of the person give the guardian the ability to make medical and care decisions for an adult. This can include anything from consenting to surgery to finding a suitable care facility for the ward. 

To appoint a guardian, the court has to find that the respondent is incapacitated, which means they cannot make informed decisions.

Families often nominate professional guardians for their loved ones, especially if the respondent has funds to pay for one. Professional guardians excel at navigating family conflict and finding placement for challenging respondents.

Guardianships of the estate

Guardianships of the estate allow someone to manage money and property on behalf of an elderly adult. Other states often call this a conservatorship. 

In Arkansas, the appointment of a conservator only refers to the appointment of a guardian of the estate when the ward voluntarily consents to the appointment, and there is no incapacity. Instead, the appointment stems from the respondent’s physical disability or advanced age, preventing them from managing their property.

Guardianships of the estate and conservatorships both require a precise accounting of the ward’s funds, and the accounting is subject to approval from the court. The ward’s funds can only be used for their care and their best interests.

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How Guardianship Works for Adults With Developmental Disabilities or Special Needs

Guardians for adults with special needs also serve as decision-makers and arrange care for their wards. The same types of guardianship – for the estate and for the person – exist as with elderly adults. 

Guardianships for special needs adults should be tailored to the specific needs and abilities of the respondent in order to preserve as much autonomy as possible.  As with elderly adults, the court must make findings regarding the respondent’s incapacity.

Frequently Asked Questions: Guardianship in Arkansas

While Arkansas makes it possible to navigate guardianship cases without an attorney, remember that you are assuming fiduciary responsibility for another person by accepting the role of guardian. If you have any questions about what you can and cannot do as a guardian, be sure to get the advice of an attorney.

How long is temporary guardianship in Arkansas?

Temporary guardianships last up to 90 days, but the court can extend the temporary guardianship before it expires.

What’s the difference between guardianship, conservatorship, and custody in Arkansas?

It can be confusing to sort out which type of case best suits your needs because a minor might benefit from a guardianship or a custody case. 

Typically, a custody case happens between the minor’s parents. The domestic relations court is most adept at determining parenting time schedules, child support, and decision-making. 

Conversely, a guardianship case awards parental authority to someone other than the child’s parents. Guardianships are only awarded to one person or a married couple, so it doesn’t meet the needs of a joint-custody scenario between parents, grandparents, and other family members. 

Finally, guardianship of the minor’s estate allows someone to manage property and money on behalf of a minor. A parent can ask for this power without impacting their parenting time or decision-making.

Can you get guardianship without going to court in Arkansas?

Guardianships exclusively come from a court order. This is because they take away someone’s decision-making or parenting ability and give it to another person. Such a serious transfer of power requires notice to interested parties, a hearing, and a finding of fact by the court.

However, many people can successfully avoid the guardianship process through advanced directives like living wills and powers of attorney. For example, parents can delegate their parental authority to another through a power of attorney. Adults can similarly nominate someone to make their decisions if they become incapacitated. 

Include Guardianship Nominations in Estate Planning

Many types of guardianships exist to meet a variety of needs. Consider nominating a guardian for you and your minor children in your estate planning documents to ensure your wishes are followed. 

Because the court heavily leans on your written preferences, nominating a guardian can reduce fighting between your family members over your care or that of your children.


Sources:
  1. “Official Probate Forms.” Official Probate Forms, Arkansas Judiciary, 2022. Arcourts.gov.
  2. “Elderly Issues - Guardianships.” Elderly Issues, Arkansas Legal Aid, 2022. Arlawhelp.org.
  3. “Title 28: Wills, Trusts, and Fiduciary Relationships.” Search, Code of Arkansas Public Access, 2022. Advance.lexis.com

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