Ccan a Guardianship of a Minor in Arkansas Be Made Without Going to Court?
Full Question:
Answer:
A guardianship with the relative of a child is established through the courts. Even if the parents consent to the court's appointment, the court may terminate a guardianship if it finds it's not in the child's best interests. A petition for guardianship would need to be filed in court.
Please see the following AR statutes:
28-65-401. Termination generally.
(a) A guardianship is terminated:
(1) If the guardianship was solely because of the ward's incompetency
for a cause other than minority, by an adjudication of the competency of
the ward;
(2) By the death of the ward; or
(3) If the guardianship was solely because of the ward's minority, the
marriage of the ward shall terminate a guardianship of the person, but not
of the estate of the ward except with respect to the ward's earnings for
personal services.
(b) A guardianship may be terminated by court order after such notice
as the court may require:
(1)(A) If the guardianship was solely because of the ward's minority,
and either the ward attains his or her majority or the disability of
minority of the ward is removed for all purposes by a court of competent
jurisdiction.
(B) However, if the court finds upon a proper showing by substantial
competent evidence that it is in the best interest of the ward that the
guardianship be continued after the ward reaches majority, the court may
order the guardianship to continue until such time as it may be terminated
by order of the court;
(2) If the ward becomes a nonresident of this state; or
(3) If, for any other reason, the guardianship is no longer necessary
or for the best interest of the ward.
(c)(1) When a guardianship terminates otherwise than by the death of
the ward, the powers of the guardian cease, except that a guardian of the
estate may make disbursements for claims that are or may be allowed by
the court, for liabilities already properly incurred for the estate or
for the ward, and for expenses of administration.
(2) When a guardianship terminates by the death of the ward, the
guardian of the estate may proceed under § 28-65-323, but the rights of
all creditors against the ward's estate shall be determined by the law
governing decedents' estates.
SECTION 1. Arkansas Code Section 28-65-107(c), regarding the jurisdiction
of courts for juvenile matters, is amended to read as follows:
(c) (1) If a juvenile is the subject matter of an open case filed
under the Arkansas Juvenile Code of 1989, Section 9-27-301 et seq., the
guardianship petition shall be filed in that case if the juvenile resides
in Arkansas.
(2) If the juvenile resides out of state through the Interstate Compact
on the Placement of Children, Section 9-29-201 et seq., the guardianship
petition may be filed in Arkansas or it may be filed in the state in which
the juvenile resides, subject to approval by the receiving state.
SECTION 2. Arkansas Code Section 28-65-203 is amended to read as follows:
28-65-203. Qualifications of guardian.
(a) A natural person who is a resident of this state, eighteen (18) or
more years of age, of sound mind, not a convicted and unpardoned felon, is
qualified to be appointed guardian of the person and of the estate of an
incapacitated person.
(b) The Department of Human Services or anyAny charitable organization
or humane society incorporated under the laws of this state is qualified
for appointment as guardian of the person and estate of a minor:
(1) When the major portion of the support of the minor is being supplied
or administered by the department or organization;
(2) When the court finds that:
(A) The minor has been abandoned by his or her parents; or
(B) The minor's parents are incapacitated or unfit for the duties of
guardianship; or
(3) If no other suitable person can be found who is able and willing to
assume the duties of guardianship.
(c) (1) A parent under eighteen (18) years of age is qualified for
appointment as guardian of the person of his or her child.
(2) If the Department of Human Services consents, the department is
qualified for appointment as guardian of the estate of a minor when the
minor is in the custody of the department.
(d)(1) A corporation authorized to do business in this state and
properly empowered by its charter to become guardian is qualified to serve
as guardian of the estate of an incapacitated person.
(2) A bank or similar institution with trust powers may be appointed
guardian of the estate of an incapacitated person.
(e) A nonresident natural person possessing the qualifications
enumerated in this section, except as to residence, who has appointed a
resident agent to accept service of process in any action or suit with
respect to the guardianship and has caused the appointment to be filed
with the court, whether or not he or she has been nominated by the will
of the last surviving parent of a minor resident of this state to be
appointed as guardian of the minor, is qualified for the appointment.
However, unless nominated by will, bond may not be dispensed with.
(f) No person whom the court finds to be unsuitable to perform the duties
incident to the appointment shall be appointed guardian of the person or
estate of an incapacitated person.
(g) No sheriff, probate clerk of a circuit court, or deputy of either,
nor a circuit judge, shall be appointed guardian of the person or estate
of an incapacitated person unless the incapacitated person shall be
related to him or her within the third degree of consanguinity.
(h)(1) Except as provided in subdivision (h)(4) of this
section, no public agency or employee of any public agency acting in his
or her official capacity shall be appointed as guardian for any
incapacitated person.
(2) No employee of a public agency that provides direct services to the
incapacitated person shall be appointed guardian of the person or estate of
the incapacitated person.
28-65-219. Substitution — Removal.
(a) When a minor ward has attained fourteen (14) years of age, his or her
guardian may be removed on petition of the ward to have another person
appointed guardian if the court is satisfied that the person chosen is
suitable, qualified, and competent and that it is for the best interest of
the ward that such a person be appointed.
(b) A guardian may also be removed on the same grounds and in the same
manner as provided in § 28-48-105 for the removal of a personal
representative.
28-48-105. Removal generally.
(a)(1) When the personal representative becomes mentally incompetent,
disqualified, unsuitable, or incapable of discharging his or her trust, has
mismanaged the estate, has failed to perform any duty imposed by law or by
any lawful order of the court, or has ceased to be a resident of the state
without filing the authorization of an agent to accept service as provided
by § 28-48-101(b)(6), then the court may remove him or her.
(2) The court on its own motion may, or on the petition of an
interested person shall, order the personal representative to appear and
show cause why he or she should not be removed.
(b) The removal of a personal representative after letters have been duly
issued to him or her does not invalidate his or her official acts performed
prior to removal.
28-65-221. Standby guardians.
(a) Without surrendering parental rights, any parent who is chronically
ill or near death may have a standby guardian appointed by the court for
the parent's minor children using the same procedures outlined in this
subchapter to establish a guardianship. The standby guardian's authority
would take effect as outlined in an order of standby guardianship, upon:
(1) The death of the parent;
(2) The mental incapacity of the parent; or
(3) The physical debilitation and consent of the parent.
(b)(1) The standby guardian shall immediately notify the court upon the
death, incapacity, or debilitation of the parent and shall immediately
assume the role of guardian of the minor children.
(2) The court shall enter an order of guardianship in conformance with
this section.
28-65-205. Petition.
(a) Any person may file a petition for the appointment of himself or
herself or some other qualified person as guardian of an incapacitated
person.
(b) The petition shall state, insofar as can be ascertained:
(1) The name, age, residence, and post office address of the
incapacitated person;
(2) The nature of incapacity and purpose of the guardianship sought in
accordance with the classifications set forth in § 28-65-104;
(3) The approximate value and a description of the incapacitated person's
property, including any compensation, pension, insurance, or allowance to
which he or she may be entitled;
(4) Whether there is, in any state, a guardian of the person or of the
estate of the incompetent;
(5) The residence and post office address of the person whom petitioner
asks to be appointed guardian;
(6) The names and addresses, so far as known or can be reasonably
ascertained, of the persons most closely related to the incapacitated
person by blood or marriage;
(7) The name and address of the person or institution having the care and
custody of the incapacitated person;
(8) The names and addresses of wards for whom any natural person whose
appointment is sought is already guardian;
(9) The reasons why the appointment of a guardian is sought and the
interest of the petitioner in the appointment;
(10) A statement of the respondent's alleged disability;
(11) A recommendation proposing the type, scope, and duration of
guardianship;
(12) A statement that any facility or agency from which the respondent is
receiving services has been notified of the proceedings; and
(13) The names and addresses of others having knowledge about the
person's disability.
(3) No employee of a public agency that provides direct services to the
incapacitated person shall be appointed as a temporary guardian.
(4) [Effective if contingency in Acts 2007, No. 862, Section 5 is met.]
Notwithstanding any other provision of law, the Public Guardian for Adults
may serve as guardian of the person or the estate, or both, of an
incapacitated person receiving services from any public agency.
(5) [Effective until contingency in Acts 2007, No. 862, Section 5 is
met.] The department shall issue regulations to implement this
provision.
(5) [Effective if contingency in Acts 2007, No. 862, Section 5 is met.]
The department shall promulgate rules to implement this provision.
(i) A person may be appointed temporary guardian of an incapacitated
person notwithstanding the provisions of subsection (h) of this section if
he or she is related to the incapacitated person within the third degree
of consanguinity and the court determines that any potential conflict of
interest is unsubstantial and that the appointment is in the best
interest of the ward.
28-65-501. Dispensing with guardianship generally.
(a) The parents of a minor, jointly with equal authority if they are
husband and wife living together, or the survivor if one (1) parent is
dead, or the competent parent if one (1) is incompetent, or the other
parent if one (1) parent is imprisoned for a felony, or the parent to whom
the custody of the child has been awarded by a court of competent
jurisdiction if the parents are divorced or living apart, or the natural
mother of an illegitimate child, shall be the natural guardian of the
person of each unmarried minor child of the parents and shall have the
care and management of the estate of each such minor derived by gift from
the parents or either of them, without the necessity of judicial
appointment.
(b) However, upon a showing of a necessity therefor to protect the
interests of the minor, the court may appoint a statutory guardian of the
estate of the minor, and when appointed and qualified, the statutory
guardian shall have exclusive control over the estate of the minor.
(c) The court may appoint the natural guardian as guardian of the
estate of the minor.