A grandparent can petition for a child's guardianship if the parents cannot care for them or have already left the child in that family member's care. Legal guardianship of a minor child allows grandparents to make decisions about their well-being and care. Arkansas courts generally believe that it is in a child's best interest to live with their parents, therefore, the grandparent must prove that the child's parents are not fit to have custody and that grandparent guardianship would be better for them.
Meaning of Guardianship and Incapacity
Guardianship is a court order given to a person for control of another individual. The person, in this case, a grandparent, is the guardian, and the minor they have control over is the ward. A court may issue authority over an individual's property, physical body, or both.
For a court to make someone a guardian, it must consider the ward to be legally incapacitated. This means they may have a condition that is debilitating physically, mentally or cognitively. A court can establish guardianship for wards with substance abuse issues if those issues put them in harm's way or cause them to run afoul of the law, and they can issue guardianships for minors.
Recognized Guardianships Under Arkansas Law
A guardianship lasts as long as the court deems necessary; it can be temporary or permanent. For example, if a person becomes temporarily incapacitated, a judge may allow another person to become an authority for them for a specific amount of time, based on the opinion of a medical professional. The court may issue a permanent order if the ward is a minor.
There are three types of guardianship in the state of Arkansas:
- Person guardianship: The court gives the guardian the authority to make personal decisions on the ward's behalf. This can include making decisions about their care and living arrangements.
- Estate guardianship: The court gives the guardian control of the ward's finances and legal affairs. The guardian may also act with limited or full authority per the court order.
- Minor guardianship: The court gives the guardian authority over the person and the estate, in which minors receive Social Security benefits or damages from a civil lawsuit.
Becoming a Legal Guardian in Arkansas
A grandparent receives legal guardianship through a court order. A judge will study the case and decide if guardianship is in the best interests of the ward. A grandparent should contact their local county court to gather information about filing a petition and make sure they qualify for guardianship rights.
Each guardianship case is different, but a prospective guardian will typically:
- File with a probate court using Appointment of Guardian of the Person and Estate form.
- Have the ward professionally evaluated within six months of the petition's filing.
- Attend the guardianship hearing to prove their case.
- Receive a court order for guardianship and review it with their attorney, if they have one.
- Follow through on provisions of the court order.
Requirements for Legal Guardians in Arkansas
Usually, a close family member applies to be the legal guardian of a minor child. They are often spouses, adult-aged children, parents or grandparents. However, a guardian does not have to be a family relation. A person requesting a guardianship appointment in the state must meet four conditions:
- Be an Arkansas resident.
- Be at least 18 years of age.
- Be of sound mind.
- Not be a convicted or pardoned felon.
Guardianships end by agreement or when certain events occur. For example:
- If the guardian resigns.
- If a minor reaches legal age.
- If either the child or guardian dies.
- The child's assets are depleted.
- If the court determines that a guardian is no longer needed or they no longer serve in the child's best interest.
Role of a Legal Guardian
There are limits to what guardians can do regarding the ward's property. Their primary responsibility entails legal and financial maintenance of the ward. They must receive court approval before:
- Denying the ward the right to obtain a driver's license.
- Preventing a doctor from attending to their medical needs.
- Terminating a parent's rights and responsibilities.
- Spending assets on major acquisitions.
- Transferring ownership of a business or closing it altogether.
Courts schedule annual hearings to account for violations. During a hearing, a probate judge reviews a guardian's actions to make sure they are in line with the court order. If they observe illegal behavior by the guardian, the ward can hold the guardian accountable for any financial losses. Under these circumstances, a judge may remove a guardian under the presumption that they no longer serve the child's best interests.
Subsidized Guardianship Act
The Subsidized Guardianship Act allows guardians to receive funding from the federal Department of Human Services (DHS). Some qualifying factors include:
- Minor's removal from their parent's custody would increase the child's welfare.
- DHS is responsible for the child's placement and care.
- Child does not have an option of adoption or returning home.
- Permanent home in an Arkansas guardianship meets the child's best interests.
- Guardian has a strong commitment to the child, and the child shows attachment to the guardian.
- If the child is 14 or older, they have received consultation on Arkansas guardianship.
- Minor has special needs.
- Guardian must meet specific relationship eligibility criteria in how they are related to the child.
- Guardian must be an approved resource home for at least six continuous months before the subsidized guardianship agreement is final.
Subsidized guardianship gives permanency to children in the state foster care system. Guardians who meet all the department's eligibility criteria will receive subsidies to defray some childcare costs.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.