Guardian FAQs

If you are considering seeking guardianship of a minor, elderly, or incapacitated person, the below answers to guardianship FAQs may be helpful. Still have questions? We can help.

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 (someone’s real and personal property, including financials).

There are two types of guardians: guardians for minors, and guardians for elderly people. If the ward (person who has a guardian) is a minor, it’s usually somebody who is not a parent who is seeking custody, care, and control. If the ward is an elderly person who lacks the capacity to issue a power of attorney or manage their own affairs, a person seeking guardianship must be granted legal authority for this person.

Only one guardian can be appointed for a person, with two exceptions. The first is that a husband and wife can be appointed as guardians for a minor. The second exception is a bifurcated guardianship, when one guardian has control over specified decisions for the person and another guardian is appointed 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, including scheduling doctors’ appointments, paying bills, providing for daily care and maintenance, etc.

Who is considered a minor?

A minor is someone who is under the age of 18 who 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 a child with special needs who is 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 may also be incapacitated and need guardianships. When this happens, an affidavit must be provided by a doctor stating 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 take charge of many of their own decisions and self-care, but they still need assistance on a consistent basis for basic life necessities. In this case, an attorney on behalf of the client would request a limited guardianship so that a guardian can be there to help them with daily care and financial needs, such as assistance paying bills or attending doctors’ appointments, etc., at the ward’s discretion.

How do I seek guardianship?

If you are considering guardianship for an elderly person, talk to the person’s physician to see if he or she would recommend the appointment of a guardian. If the physician believes guardianship would be appropriate, obtain an affidavit from the physician stating so.

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. The process can be tricky to navigate and missteps can be costly. Call an experienced guardianship attorney at Destiny Law Firm to protect your rights and the rights of the minor, and to guide you down the appropriate legal path.

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; and
  • 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 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 $1,500, plus any additional costs. If it is contested, the retainer will be $2,500 or more, depending on the difficulties expected. Typically, a contested guardianship will cost around $5,000.

How long does the guardianship process take?

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

In some cases, there is a time constraint due to issues like the school year beginning, or threat to life, blood, or limb, which could allow for the guardianship to be filed as an emergency. In this case, a hearing can be granted in as little as three days after filing. 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 child with special needs, but they grow up and are able to function on their own, they can have the court set aside the guardianship or limit it. The same principle applies to minors who eventually become adults.

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 delays. It is in everyone’s best interest to seek counsel.