Who is a Legal Guardian?
At its core, legal guardianship refers to the legal relationship established by the courts which allows an individual (the guardian) to exercise authority over another person (the ward) who is unable to manage their own affairs. Guardianship is necessary in the event a person suffers from an incapacity that affects their ability to make sound decisions regarding their property and/or financial matters. It is also utilized when a person has minor children and wishes to appoint a responsible adult to oversee the well-being of the children. Individuals seeking to become the legal guardian of a person or their children should contact the Arkansas Department of Human Services in order to receive an application and ensure that they meet certain financial requirements . In most cases, in order to qualify to become a guardian, an individual must have a stated income and show that they are large enough to provide for the ward and/or their children. In instances where the person seeking guardianship of minor children is a relative of the children, a totally different and more streamlined procedure is utilized. Although only certain people can become a legal guardian, the task itself is fairly simple and straightforward. Legal guardianship is not intended to serve as a mechanism for controlling a person’s affairs but rather is designed to allow the appointed guardian to act on behalf of the person in order to protect their best interests.
Types of Legal Guardianship in Arkansas
In Arkansas, there are two main types of guardianships: those over minors and those over adults. The most common form of minor guardianship is that of a minor child whose parents are deceased or incapacitated. This type of guardianship is primarily for the benefit of the minor child and will terminate upon the minor reaching age 18. (a guardian may need to petition the Court for permission to manage a minor’s property whether that may last beyond age 18). In this instance, the guardian of the minor’s estate (property) must provide an annual accounting to the Court as to amounts received and disbursed on behalf of the minor and other information requested by the Court.
A less-common type of minor guardianship is that of a minor who is disabled and cannot conduct his or her own affairs. This could include a minor with a disability that occurs before the age of 18. This type of guardianship would continue until the minor reaches the age of 18 or until the disability is removed. If the disability has not been removed by age 18, a minor cannot have a guardian assigned while he or she remains a minor as a general rule in Arkansas.
When parents are divorcing and cannot agree, a temporary guardianship can be put in place for a minor child who is in the custody of one parent. If the parents are able to agree, they may transfer custody to the other parent without re-assigning a guardian. Parents can even agree to share guardianship responsibilities as parents in certain circumstances.
Guardianship over an adult is for an individual who has an incapacity within the meaning of Arkansas law. While Arkansas does not define what incapacity is, the law does recognize it as any type of physical or mental condition resulting from injury, illness, or disability, whether latent or otherwise, that prevents the affected individual from attending to his or her affairs. In this instance, a guardian is required to make decisions regarding the disabled individual and how to manage his or her property. The Court can grant a limited or full guardianship over the person and/or estate depending on what is needed for his or her well-being. A limited guardian may be appointed to have the duty to make certain decisions under the supervision of the Court. A full guardian may be granted the full powers of the Court and can make decisions without Court approval.
How to Obtain Legal Guardianship?
Steps to Obtain Guardianship in Arkansas
To initiate the guardianship process, interested parties must file a petition with the local probate court. To start, they generally need to file a "Petition for Appointment of Guardian" for the alleged incapacitated person and an "Application for Appointment of Limited Guardian" or "Application for Appointment of Full Guardian." These petitions require the filing party to identify the proposed guardian and provide a basis for the guardianship.
Within five days of filing, the proposed guardian will likely be required to complete a financial disclosure statement, which serves to identify any financial connections the proposed guardian may have with the person in need of guardianship. Once the court receives the disclosure statement, it will likely issue an order for a criminal background check. Additionally, a medical report compiled by a treating physician will be required to verify the incapacity of the alleged incapacitated person.
A court hearing will be scheduled within 110 days of filing the petition. The alleged incapacitated person may contest the petition through a legal motion, which will ultimately reach the same circuit court judge that will hear the petition for guardianship. An appointed attorney is likely to represent the alleged incapacitated person at the hearing.
The hearing generally requires the petitioner to submit a written notice to the alleged incapacitated person or their attorney at least 21 days in advance. After hearing sworn testimony from the petitioner and medical witnesses, the Court will ultimately decide whether to grant the guardianship petition and, if so, will appoint a guardian and provide the guardian with certain powers and responsibilities for the ward. In the appointment order, the Court will set forth the powers of the guardian, including limitations or restrictions. If a partial/limited guardianship is appropriate, the Court will specifically state which responsibilities will remain with the alleged incapacitated person.
Once appointed, the Court will require the guardian to submit a report on the condition and expenses for the ward on an annual basis.
Guardian Rights and Obligations
Both legal rights and responsibilities accompany a guardian’s appointment in Arkansas. Generally, the most common rights include the right to control the ward’s personal and financial matters, the right to the custody and control of the ward, and the right to receive compensation for the services provided as guardian. The ABCs of a guardian’s obligations and powers concerning the ward are summarized below.
— obligation to manage the ward’s estate responsibly in order to conserve the assets;
— obligation to maintain records of the estate and accountings upon request;
— obligation to communicate and cooperate with the ward’s attorney, physician, and any other person relevant to the guardianship;
— obligation to comply with the court’s orders and instructions;
— decision making authority over the ward’s personal and property matters within the limitations of the court’s orders;
— authority to enter into contracts on behalf of the ward;
— authority to purchase real property on behalf of the ward;
— authority to decide whether to sell personal property of the ward;
— authority to employ agents or counsel on behalf of the ward;
— authority to recover possession of the ward’s property;
— authority to settle disputes on behalf of the ward;
— authority to make provision for the ward’s spiritual needs;
— authority to provide for the ward’s care in general, including: medical, therapy, transportation, or other care needed by the ward;
— authority to seek a protective order in court to prevent another person near the ward from engaging in abusive or undue influence behavior;
— authority to make medical and health care decisions for the ward including, without limitation: and (i) a do not resuscitate order; (ii) an advance directive; (iii) consent for the ward to receive medical or surgical assistance; (iv) admission to a medical facility (i.e., hospital or nursing home); and (v) termination of life-sustaining procedures;
— authority to make decisions regarding where the ward will live such as: independent living, skilled nursing care, assisted living, adult foster care, or other residence situations;
— authority to recover for the ward for neglect, loss, or destruction of the ward’s property brought about by another person;
— authority to make an annual report to the court regarding the status of the ward, the guardian’s estate, and the effectiveness of the guardian.
Legal Challenges and Considerations of Guardianship
Like any legal matter, there can be challenges and potential pitfalls in becoming a guardian. The most significant of which are the potential for legal disputes with either the applicant for the guardianship or with other family members. Second, is the continuing requirement for supervision by the Court. While guardianship matters are often more straight-forward than many estates, there are exceptions. Many times there will be litigation as a result of a proposed guardian being appointed and a more favorable family member being passed over.
The lone voice of disagreement that could result from a step-sibling, uncle , cousin or other family member will have the potential to create havoc in the case. Sometimes the person who opposes the guardianship will be doing so out of spite against the petitioner. However, sometimes there can be a well-meaning family member who believes they would be the better choice and that their relationship with the proposed ward merits special consideration.
Second, there are ongoing requirements for accounting, petitions and annual reporting that go beyond that of many uncontested wills. In other words, you can’t just do it once and expect everything to go smoothly. There are merits to this as the court is required to ensure that the legal rights of the ward are being protected.
While there can be some challenges some judges have more work to do than others.
Legal Resources and Assistance for Guardians
In addition to the support provided by court staff, a number of other legal resources and professional services exist to assist guardians in navigating their duties. These can range from legal aid organizations to support groups to professional services that offer assistance in specific areas, such as financial management or legal document preparation.
Legal Aid Organizations
Legal aid organizations are typically nonprofit entities that provide free or low-cost legal assistance to those who meet certain income requirements. In Arkansas, the Arkansas Legal Services Partnership includes The Center for Arkansas Legal Services and Legal Aid of Arkansas. They can be valuable resources for finding legal guidance relevant to powers of attorney, care contracts, asset management, discharge planning, and other legal matters that may arise when acting as a legal guardian.
Support Groups
While there may not be support groups specifically geared toward legal guardianship in the state, there are support groups that provide guidance to caregivers of the elderly and disabled, which can be just as useful. Caregiver support groups foster community and provide an opportunity to share experiences and solutions to challenges. Groups like the Arkansas Caregiver Resource Center work to connect your family with a support group that is best suited for you.
Professional Services
For guardians who feel overwhelmed by the complexities of their tasks, help is available. Professional services include legal document preparation services, financial managers, estate planners, and care managers. Many of these jobs normally performed by a person with legal expertise or extensive financial knowledge may be contracted out to a professional service.
Guardianship vs Alternatives
While guardianship is an important legal tool in Arkansas, there are alternatives that can better serve many individuals. That is especially true in a world where most personal and medical decisions are made by a person on a day-to-day basis. Many circumstances involve simple decisions that do not require the legal intervention of a guardian.
One alternative to guardianship is a power of attorney. A power of attorney lets a trusted individual (the "attorney-in-fact") make decisions on behalf of another individual (the "principal"). The scope of reasoning ability can impact the nature of the attorney-in-fact relationship. For example, a principal may intend to create a power of attorney for financial management while retaining the ability to handle his or her own medical decisions. The legality of a power of attorney exists independently from a guardianship. A power of attorney allows the principal to plan ahead and appoint someone who can make decisions if the principal is subsequently unable to do so. The power of attorney is an information-based relationship. Mental reasoning and medical conditions evolve over time. Thus , it is a relationship that may need to be revised along the way.
A conservatorship is a legal relationship between a conservator and a protected person. In a conservatorship, the conservator manages the financial and legal affairs of the protected person. Much like guardianship, a conservatorship is limited to the needs of the protected person. While the expansive authority of a guardian applies to all aspects of a life, a conservator is more limited in its focus on finances and legal matters. A conservator is often used when the protected person is unable to manage his or her financial and legal affairs due to conditions such as: Financial and legal decision-making is often influenced by the status of the protected person. Thus, the term of a guardianship may extend beyond the needs of a protected person. That means a protected person may need a conservator while he or she is still able to handle health care decisions.
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