Guardianship FAQ

Learn about common questions and answers about guardianship in Arkansas and contact Destiny Law Firm today to discuss your case.

What is a guardian?

A guardian is someone who has a fiduciary duty to care for someone else. A guardianship can be bifurcated, which means that one person can be the guardian of someone’s physical being and another person can be guardian of the estate (with estate meaning is someone’s real and personal property, including financials).

There are two types of guardianship: guardians for minors, and guardians for elderly people. If it’s a minor, it’s usually somebody who is not a parent that is seeking custody, care, and control. If they are an elderly person that lacks the capacity to issue a power of attorney or manage their own affairs, then the person seeking guardianship has to go to court to get legal authority for this person.

You can only have two guardians for a minor child if the guardians are husband and wife. Otherwise, you are only allowed to have one guardian for one person, with the exception of a bifurcated guardianship (i.e. one guardian for the person and one guardian for the estate).

What can a guardian do?

A guardian is under a fiduciary duty to not mismanage the person’s physical being or estate. They take care of everything for that person, for instance, they set up doctor’s appointments, they pay the bills, provide for daily care and maintenance, etc.

Who is considered a minor?

A minor is someone who is under the age of 18 that requires a guardian because they are not legally an adult.

Who is considered incapacitated, requiring a guardian?

Anyone who is over the age of 18 can be incapacitated. For example, when you have special needs child over the age of 18, the adult caring for the younger person may need to become a legal guardian so that they can continue to help throughout the rest of their life.

Elderly people also may need guardianships, and when that happens, the statute requires you to provide an affidavit from a doctor that states the person’s level of incapacity.

Finally, there are also “limited purpose guardianships” which can be petitioned for when the person is not fully incapacitated, meaning that the person still possesses some capacity to make their own decisions and self-care but still needs assistance on a consistent basis to meet their basic life necessities. In this case, an attorney on behalf of the client would request a limited guardianship so that the person can be there to help them with daily care and financial needs, such as assistance paying bills or attending doctor’s appointments, at the ward’s discretion, etc.

How do you seek guardianship?

If someone needs a guardianship of an elderly person, the first thing they need to do is talk to the doctor and see if that doctor thinks it’s wise to have a guardianship of the older person. Then, they need to acquire an affidavit from that doctor.

If the guardianship is for a minor, the minor must be in the guardian’s care and custody for some type of duration depending on the circumstances. You can seek guardianship from the court on your own, but we do not recommend it. Call one the attorneys at Destiny Law Firm to get started today!

Who can act as a guardian?

The requirements are:

  • The person must be over the age of 18
  • The person cannot be a convicted, unpardoned felon
  • The person cannot already be the guardian over anybody else or their estate

There is also a slight preference for a blood relative.

Where do I go to file for guardianship in Arkansas?

You can file for guardianship in Arkansas in the Circuit Court in the county in which the ward (person for whom guardianship is sought) resides.

How much will it cost to file for guardianship?

The cost to file for guardianship depends on the circumstances of the case. If it is uncontested, it will probably be around $1500, plus costs. If it is contested, the retainer will be $2500 or more, depending on the difficulties expected. Typically, a contested guardian will cost around $5000.

How long does the guardianship process take?

  • Uncontested guardianship for a minor typically takes 45-90 days between filing and processing
  • Uncontested guardianship for elderly also takes about 45-90 days and could be up to 180 days
  • If the guardianship is contested, it will typically be at least 3 to 6 months minimum

In some cases, if there is a time constraint for the school year beginning or if there is a threat to life, blood, or limb, which could allow for the guardianship to be filed as an emergency. In this case, you can have a hearing in as little as three days after you file. If you are successful at that hearing, you can get a temporary guardianship that is good for 90 days. Thereafter, guardianship either becomes permanent or gets dismissed.

Is guardianship permanent?

No, guardianship is not necessarily permanent. Even if a permanent guardianship is entered, there are circumstances that may override it. For example, if you have a permanent guardianship over a special needs child, but they grow up and learn to function on their own, they can have the court set aside the guardianship or limit it. The same principle applies to minors.

Do I need to hire an attorney to apply for guardianship?

We strongly advise hiring an attorney to apply for guardianship. There are many missteps that can occur if not filed properly, which could result in extra expense and delay. It is in everyone’s best interest to seek counsel. Contact our office today.