GUARDIANSHIPS

There are two different types of guardianship:  Guardian of the Person and Guardian of the Estate.  A guardian of the person is responsible for seeing to the physical needs of the ward.  A guardian of the estate is responsible for administrating the assets and income of the ward.  These guardians can be split between two different individuals or entities, or may be combined into one guardian.  For example, a ward may have an accountant or bank official appointed as guardian of the estate while a relative is a guardian of the person.  Guardianships are usually appointed for individuals who because of age (under 18) or a physical/mental condition are unable to see to their own financial and/or physical needs.

 

A guardianship is available for any person who can be proven incapacitated (by age or condition).  Any person may be appointed guardian so long as they are 18, of sound mind, not a felon, and otherwise a suitable person.  The guardian may be reimbursed for his/her time as the court finds reasonable.  The court will give preference to the parent(s) of an unmarried minor and any guardian who the ward has indicated he/she desires to be his guardian by a written instrument, such as a will, affidavit, power of attorney, etc...  To have a guardian appointed, you must petition the court and prove to the court that the ward is incapacitated, a guardianship is necessary to protect the interests of the ward, and the person or persons to be appointed as guardian(s) are qualified and suitable.

 

A guardianship can be a fairly complicated area to both set up and to run after the appointment.  Because of this, it is an area you should definitely consult with an attorney on before making any decisions. 

 

This is not the same as an involuntary commitment which is not discussed here.  Depending on the circumstances of your case, this may be another option.

 

 

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 28. WILLS, ESTATES, AND FIDUCIARY RELATIONSHIPS
SUBTITLE 5. FIDUCIARY RELATIONSHIPS
CHAPTER 65. GUARDIANS GENERALLY
SUBCHAPTER 1. GENERAL PROVISIONS

Arkansas Code Annotated Section 28-65-101:  Definitions.

As used in this chapter, unless the context otherwise requires: 
(1)  "Incapacitated person" means a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his health or safety or to manage his estate. Nothing in this chapter shall be construed to mean a person is incapacitated for the sole reason he relies consistently on treatment by spiritual means through prayer alone for healing in accordance with his religious tradition and is being furnished such treatment; 
(2)  "Ward" is an incapacitated person for whom a guardian has been appointed; 
(3)  "Guardian" is one appointed by a court to have the care and custody of the person or of the estate, or of both, of an incapacitated person; 
(4)  "Temporary guardian" means a guardian appointed pursuant to 28-65-218; 
(5)  "Evaluation" means a professional assessment of the abilities of the respondent and the impact of any impairments on the individual's capability to meet the essential requirements for his health or safety or to manage his estate; 
(6)  "Professional" means a physician, licensed psychologist, or licensed certified social worker with training, experience, and knowledge of the particular alleged disability of the respondent; 
(7)  "Least restrictive alternative" means the form of assistance that least interferes with the legal capacity of the respondent to act in his own behalf; 
(8)  "Guardian ad litem" is one appointed by a court in which a particular proceeding is pending to represent a ward or an unborn person in that proceeding; 
(9)  "Limited guardian" is one whose powers and authority have been limited to the specific powers, authorities, and duties set forth in the order of appointment; 
(10)  "Essential requirements for health or safety" means the health care, food, shelter, clothing, and protection without which serious illness or serious physical injury will occur.

 

Arkansas Code Annotated Section 28-65-104:  Incapacitated Persons.

For purposes of this chapter, the following persons are incapacitated persons: 
(1)  Persons under the age eighteen (18) years whose disabilities have not been removed; and 
(2)  Persons who are detained or confined by a foreign power or who have disappeared.

 

Arkansas Code Annotated Section 28-65-105:  Purpose of Guardianship.

Guardianship for an incapacitated person shall be used only as is necessary to promote and protect the well-being of the person and his property, shall be designed to encourage the development of maximum self-reliance and independence of the person, and shall be ordered only to the extent necessitated by the person's actual mental, physical, and adoptive limitations.

 

Arkansas Code Annotated Section 28-65-106:  Rights of Incapacitated Persons.

An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted by order to the guardian by the court. 

 

Arkansas Code Annotated Section 28-65-108:  Compensation of Guardian.

(a)  A guardian shall be allowed such compensation for his services as guardian as the court shall deem just and reasonable. 
(b)  If the court finds that the guardian has failed to discharge his duties as such in any respect, it may deny him any compensation whatsoever or may reduce the compensation which would otherwise be allowed.

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 28. WILLS, ESTATES, AND FIDUCIARY RELATIONSHIPS
SUBTITLE 5. FIDUCIARY RELATIONSHIPS
CHAPTER 65. GUARDIANS GENERALLY
SUBCHAPTER 2. APPOINTMENT

Arkansas Code Annotated Section 28-65-201:  For Whom Guardian May Be Appointed.

(a)  A guardian of the estate may be appointed for any incapacitated person. 
(b)  A guardian of the person may be appointed for any incapacitated person except a married minor who is incapacitated solely by reason of his minority.

 

Arkansas Code Annotated Section 28-65-203:  Qualification 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 Arkansas Department of Human Services or any 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, when the major portion of the support of the minor is being supplied or administered by the department or organization, or when the court finds that the minor has been abandoned by his parents or that his parents are incapacitated or unfit for the duties of guardianship, or if no other suitable person can be found who is able and willing to assume the duties of guardianship. 
(c)  A parent under the age of eighteen (18) years is qualified for appointment as guardian of the person of his child. 
(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 hereinabove enumerated, 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 such appointment to be filed with the court, whether or not he 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, clerk of a probate court, or deputy of either, nor a probate judge, shall be appointed guardian of the person or estate of an incapacitated person unless the incapacitated person shall be related to him within the third degree of consanguinity. 
(h) (1)  Except as provided in subsection (b) of this section, no public agency or employee of any public agency acting in his official capacity shall be appointed as guardian for any incapacitated person. 
     (2)  No employee of a public agency which provides direct services to the incapacitated person shall be appointed guardian of the person or estate of the incapacitated person. 
     (3)  No employee of a public agency which provides direct services to the incapacitated person shall be appointed as a temporary guardian. 
     (4)  The Arkansas Department of Human Services shall issue regulations 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 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.

 

Arkansas Code Annotated Section 28-65-204:  Preferences.

(a)  The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person. 
(b)  Subject to this rule, the court shall appoint as guardian of an incapacitated person the one most suitable who is willing to serve, having due regard to: 
     (1)  Any request contained in a will or other written instrument executed by the parent or by the legal custodian of a minor child for the appointment of a person as guardian of the minor child; 
     (2)  Any request for the appointment of a person as his guardian made by a minor of the age of fourteen 14 years or over; 
     (3)  Any request for the appointment of a person made by the spouse of an incapacitated person; 
     (4)  The relationship by blood or marriage to the person for whom guardianship is sought. 
(c)  Prior to the appointment of a guardian, the court shall take into consideration any request made by the incapacitated person concerning his preference regarding the person to be appointed guardian.  This request may be made to the court by any means, but there shall be no necessity that the incapacitated person appear before the court for the purpose of indicating his preference.

 

Arkansas Code Annotated Section 28-65-205:  Petition.

(a)  Any person may file a petition for the appointment of himself 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 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.

 

Arkansas Code Annotated Section 28-65-210:  Proof Required For Appointment of Guardian.

Before appointing a guardian the court must be satisfied that: 
(1)  The person for whom a guardian is prayed is either a minor or otherwise incapacitated; 
(2)  A guardianship is desirable to protect the interests of the incapacitated person; and 
(3)  The person to be appointed guardian is qualified and suitable to act as such.

 

Arkansas Code Annotated Section 28-65-211:  Determination of Incapacity, Disappearance, Detention, or Confinement by Foreign Power.

(a)  The fact of minority, disappearance, or detention, or confinement by a foreign power, shall be established by satisfactory evidence. 
(b) (1)  In determining the incapacity of a person for whom a guardian is sought to be appointed for cause other than minority, disappearance, or detention, or confinement by a foreign power, the court shall require that the evidence of incapacity include the oral testimony or sworn written statement of one (1) or more qualified professionals, whose qualifications shall be set forth in their testimony or written statements. 
     (2)  If the alleged incapacitated person is confined or undergoing treatment in an institution for the treatment of mental or nervous diseases or in a hospital or penal institution, one of the professionals shall be a member of the medical staff of that hospital or institution. 
     (3)  The court, in its discretion, may require the presence before it of the person of the alleged incapacitated person. 
     (4)  The court shall fix the fees to be paid to such examiners, which shall be charged as part of the costs of the proceeding. 
(c)  The costs of the proceeding shall be paid by the petitioner, who shall be reimbursed therefor out of the estate of the incapacitated person, if a guardian is appointed.

 

Arkansas Code Annotated Section 28-65-212:  Evaluations.

(a)  A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power, or pursuant to 28-65-218. The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent's alleged incapacity. 
(b)  The evaluation shall include the following: 
     (1)  The respondent's medical and physical condition; 
     (2)  His adaptive behavior; 
     (3)  His intellectual functioning; 
     (4)  Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available. 
(c) (1)  If no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation. 
     (2)  If the petition is granted, the cost of the independent evaluation will be borne by the estate of the incapacitated person. In the event the petition is denied, the costs will be borne by the petitioner. 
(d) (1)  The court may request the assistance of a Department of Human Services resource person to gather records, investigate the respondent's condition, and help arrange for appropriate professional evaluations. 
     (2)  The Department of Human Services shall issue regulations to implement this provision. 
(e)  Any existing evaluations made by the Department of Human Services of which the court has notice must be considered by the court.

 

Arkansas Code Annotated Section 28-65-213:  Hearing - Effect of Determinations.

(a)  At the hearing, the respondent shall have the right to: 
     (1)  Be represented by counsel; 
     (2)  Present evidence on his own behalf; 
     (3)  Cross-examine adverse witnesses; 
     (4)  Remain silent; 
     (5)  Be present; 
     (6)  Require the attendance by subpoena of one (1) or more of the professionals who prepared the evaluation. 
(b)  The burden of proof by clear and convincing evidence is upon the petitioner, and a determination of incapacity shall be made before consideration of a proper disposition. 
(c) (1)  If the respondent is found to be incapacitated, the court shall determine the extent of the incapacity and the feasibility of less restrictive alternatives to guardianship to meet the needs of the respondent. 
     (2)  If it is found that alternatives to guardianship are feasible and adequate to meet the needs of the respondent, the court may dismiss the action. 
     (3)  If it is found that the respondent is substantially without capacity to care for himself or his estate, a guardian for the person, estate, or both shall be appointed.

 

Arkansas Code Annotated Section 28-65-214:  Guardianship Order.

(a)  A court order establishing a guardianship shall contain findings of fact that the respondent is an incapacitated person and is in need of a guardian for the person, or estate, or both. The order may limit the power and duties of the guardian and may define the legal and civil rights retained by the incapacitated person. 
(b)  If satisfied that a guardian should be appointed, the court shall appoint one (1) or two (2) general or limited guardians of the person, or of the estate, or of both; but not more than one (1) guardian of the person shall be appointed unless they are husband and wife. 
(c)  The order shall specify the nature of the guardianship and the amount of the bond to be given. 
(d)  If the court determines the guardians should be limited, the order shall set forth the specific powers, authorities, and duties the guardian shall possess, which may be stated in terms of powers or rights the incapacitated person may exercise without intervention of the guardian. 
(e)  In defining the powers and duties of the guardian, the court shall consider the right of the incapacitated person to rely upon nonmedical remedial treatment in accordance with a recognized religious method of healing in lieu of medical care.

 

Arkansas Code Annotated Section 28-65-218:  Temporary Guardian.

(a)  If the court finds that there is imminent danger to the life or health of the incapacitated person or of loss, damage, or waste to the property of an incapacitated person and that this requires the immediate appointment of a guardian of his person or of his estate, or of both, it may, with or without notice, appoint a temporary guardian for the incapacitated person for a specified period, which period, including all extensions, shall not exceed ninety (90) days, and the court may remove or discharge him or terminate the guardianship. 
(b)  Immediate notice of the temporary guardianship order shall be served by the petitioner upon the following: 
     (1)  The ward if over fourteen (14) years of age; 
     (2)  The parents of the ward, if the ward is a minor; 
     (3)  The spouse, if any, of the ward; 
     (4) (A)  Any other person who is the guardian of the person or of the estate of the ward, or any other person who has the care and custody of the ward, and the director of any agency from which the respondent is receiving services; 
           (B)  The Department of Human Services where the temporary guardian appointed serves as guardian of five (5) or more wards; 
     (5)  If there is neither a known parent nor known spouse, at least one (1) of the nearest competent relatives by blood or marriage of the ward; and 
     (6)  If directed by the court: 
          (A)  Any department, bureau, agency, or political subdivision of the United States or of this state which makes or awards compensation, pension, insurance, or other allowance for the benefit of the ward or his estate; 
          (B)  Any department, bureau, agency, or political subdivision of the United States or of this state or any charitable organization, which may be charged with the supervision, control, or custody of the incompetent; or 
          (C)  Any other person designated by the court. 
(c)  The notice shall include: 
     (1)  A copy of the petition; 
     (2)  A copy of the temporary order and order of appointment; 
     (3)  Notice of a hearing date; and 
     (4)  A statement of rights as provided in 28-65-207(b)(1). 
(d)  If the ward is over fourteen (14) years of age, there shall be personal service upon him if personal service can be had. Service on others shall be according to the Arkansas Rules of Civil Procedure or as otherwise provided by the court. 
(e)  Notice need not be given to any person listed in 28-65-207(a)(1)-(6). 
(f)  Within three (3) working days of the entry of the temporary guardianship order, a full hearing on the merits shall be held. 
(g)  The appointment may be to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment. 
(h)  The temporary guardian shall make such reports as the court shall direct and shall account to the court upon termination of his authority. 
(i)  In other respects, the provisions of this chapter concerning guardians shall apply to temporary guardians, and an appeal may be taken from the order of appointment of a temporary guardian. 
(j)  The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian.

 

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 28. WILLS, ESTATES, AND FIDUCIARY RELATIONSHIPS
SUBTITLE 5. FIDUCIARY RELATIONSHIPS
CHAPTER 65. GUARDIANS GENERALLY
SUBCHAPTER 3. POWERS AND DUTIES

 

Arkansas Code Annotated Section 28-65-301:  Duties of Guardians Generally.

(a) (1)  It shall be the duty of the guardian of the person, consistent with and out of the resources of the ward's estate, to care for and maintain the ward and, if he is a minor, to see that he is protected, properly trained and educated and that he has the opportunity to learn a trade, occupation, or profession. 
     (2)  The guardian of the person may be required to report the condition of his ward to the court, at regular intervals or otherwise, as the court may direct. 
     (3)  The guardian of the person shall be entitled to the custody of the ward, but shall not have the power to bind the ward or his property. 
(b)  It shall be the duty of the guardian of the estate to exercise due care to protect and preserve it, to invest it and apply it as provided in this chapter, to account for it faithfully, to perform all other duties required of him by law, and, at the termination of the guardianship, to deliver the assets of the ward to the persons entitled to them. To the extent applicable, the law of trusts shall apply to the duties and liabilities of a guardian of the estate.

 

Arkansas Code Annotated Section 28-65-302:  Decisions Requiring Court Approval.

(a) (1)  No guardian appointed prior to October 1, 2001, shall make any of the following decisions without filing a petition and receiving express court approval: 
          (A)  Consent on behalf of the incapacitated person to abortion, sterilization, psychosurgery, or removal of bodily organs except when necessary in a situation threatening the life of the incapacitated; 
          (B)  Consent to withholding life-saving treatment; 
          (C)  Authorize experimental medical procedures; 
          (D)  Authorize termination of parental rights; 
          (E)  Prohibit the incapacitated person from voting; 
          (F)  Prohibit the incapacitated person from obtaining a driver's license; or 
          (G)  Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate. 
     (2)  No guardian appointed on or after October 1, 2001, shall make any of the following decisions without filing a petition and receiving express court approval: 
          (A)  Consent on behalf of the incapacitated person to abortion, sterilization, psychosurgery, or removal of bodily organs except when necessary in a situation threatening the life of the incapacitated; 
          (B)  Consent to withholding life-saving treatment; 
          (C)  Authorize experimental medical procedures; 
          (D)  Authorize termination of parental rights; 
          (E)  Authorize an incapacitated person to vote; 
          (F)  Prohibit the incapacitated person from obtaining a driver's license; or 
          (G)  Consent to a settlement or compromise of any claim by or against the incapacitated person or his or her estate. 
(b)  Provided, however, the provisions of subdivision (a)(2) of this section shall not apply to written requests under 20-17-214.

 

Arkansas Code Annotated Section 28-65-303:  Care, Treatment, and Confinement of Ward.

(a) (1)  If the ward is incapacitated for reasons other than minority and has not been committed to the state hospital as otherwise provided by law, the court, upon petition of the guardian of the person or other interested person and after such notice as the court shall direct, including notice to the guardian of the person if he is not the petitioner, may authorize or direct the guardian of the person to take appropriate action for the commitment of the ward to the state hospital or, while retaining control over and responsibility for the care of the person of the ward, to place the ward in some other suitable institution for treatment, care, or safekeeping. 
     (2)  Upon petition of the guardian or other interested person, after a hearing of which the guardian of the person and such other persons as the court may direct shall have notice, the court, for good cause shown, may modify, amend, or revoke such order. 
(b)  If the condition of the ward is such as to endanger the person or property of himself or others, the guardian, in an emergency, may temporarily confine the ward in some suitable place or may deliver him into the custody of the sheriff for safekeeping in the county jail until such time as the court may hear and act upon a petition, which shall be promptly filed by the guardian, with reference to the commitment of the ward to the state hospital or for other appropriate provision for his treatment, care, or safekeeping.

 

Arkansas Code Annotated Section 28-65-304:  Title and Possession of Estate.

The guardian of the estate shall take possession of all of the ward's real and personal property, and of rents, income, issue, and of the proceeds arising from the sale, mortgage, lease, or exchange thereof. Subject to the possession, the title to all the estate and to the increment and proceeds of the estate shall be in the ward and not in the guardian.

 

Arkansas Code Annotated Section 28-65-306:  Enforcement of Contracts.

(a)  When, prior to his incapacity, an incapacitated person has entered into a valid contract for the purchase or sale of any interest in real or personal property, including the sale or relinquishment of a dower or homestead interest, and the contract has not been performed prior to the inception of incapacitation, the court, upon petition of the guardian, the seller or purchaser, or other interested person, if it finds that performance of the contract would have been required on the part of the incapacitated person if the incapacitation had not intervened, may authorize the guardian to complete the performance of the contract and to execute or join in the execution of the deed of conveyance, bill of sale, or other appropriate instrument in the name and in behalf of the incapacitated person pursuant to the terms of the original contract. 
(b)  The conveyance, bill of sale, or other instrument shall have the same effect with respect to the estate, title, or interest of the incapacitated person as if executed by him personally while incapacitated.

 

Arkansas Code Annotated Section 28-65-307:  Continuation of Business - Liability.

(a)  If, at the time of the appointment of a guardian of the estate, the ward owns a business or an interest in a business, the court, by appropriate order, may authorize the guardian to continue the conduct of or participation in such business in behalf of the ward for such periods of time and subject to such safeguards as the court may find to be for the best interest of the ward. 
(b)  The ward's estate, but not the guardian personally, shall be liable for damages resulting from torts or other acts committed by agents and employees of the guardian in the course of their employment in the conduct of the business. 
(c)  It is specifically recognized that the operation of any business undertaking involves hazards, chance, and danger of loss. In recognition of this fact, it is declared to be the legislative intent that no guardian shall be held personally liable for loss resulting from mere lack of familiarity with the business operations, mistakes of judgment made in good faith, or like causes.

 

Arkansas Code Annotated Section 28-65-308:  Power to Borrow Money, Make Gifts, Etc...

(a)  Upon a showing that the action would be advantageous to the ward and his estate, the court may authorize the guardian to borrow money, to execute notes and other legal evidences of indebtedness, and to mortgage property of the ward in accordance with the provisions of 28-65-314. 
(b)  Upon a showing that the action would be advantageous to the ward and his estate, the court may authorize the guardian to make gifts and disclaimers on behalf of the ward.

 

Arkansas Code Annotated Section 28-65-309:  Periodic Allowances.

(a)  The guardian of the estate, or any person, department, bureau, agency, or charitable organization having the care and custody of a ward may apply to the court for an order directing the guardian of the estate to pay to the person, department, bureau, agency, or charitable organization having the care and custody of the ward or, if the guardian of the estate has the care and custody of the ward, directing the guardian of the estate to apply a designated amount periodically as the court may direct, to be extended for the care, maintenance, and education of the ward and of his dependents. 
(b)  In proper cases the court may order payment of amounts directly to the ward for his maintenance or incidental expenses. 
(c)  The amounts authorized under this section may be decreased or increased from time to time by direction of the court. 
(d)  If payments are made to another under the order of the court, the guardian of the estate is not bound to see to the application of the payments. 

 

Arkansas Code Annotated Section 28-65-310:  Support of Minor Ward.

(a)  The support of their unmarried minor children is chargeable jointly and severally upon the property of the husband and the property of the wife, and in the relation thereto, they may be sued either jointly or severally. 
(b)  Although the responsibility for the care, maintenance, and education of a minor rests upon his parents or persons in loco parentis, if there are such persons, nevertheless in appropriate cases and taking into consideration the relative resources and circumstances of a parent and the minor ward, the court, in its discretion, may authorize the guardian of the estate to expend income or principal of the ward's estate for the ward's care, maintenance, and education. 
(c) (1)  As far as necessary for the purpose, except as provided in subsection (b) of this section, the income of the ward's estate shall be first applied to his care, maintenance, and education. 
     (2)  On order of the court, any surplus of the income may be applied to the care, maintenance, and education of the dependents of the ward. 
     (3)  If the income is not sufficient to care for, maintain, and educate the ward and his dependents, the court may order the expenditure of such portion of the principal as it from time to time finds necessary for such purposes.

 

Arkansas Code Annotated Section 28-65-311:  Investments.

(a)  The guardian of the estate may, and when ordered by the court shall, deposit as a fiduciary, the funds of the ward in a financial institution of this state, as a general deposit, either in a checking account or a savings account. 
(b)  The guardian shall invest the funds of the ward not reasonably needed for the ward's care, maintenance, or education in securities selected by the guardian from among the following categories: 
     (1)  Bonds, notes, or certificates of indebtedness which are the direct obligations of, or the principal and income of which are unconditionally guaranteed by, the United States of America; 
     (2)  Bonds or notes issued by the State of Arkansas; 
     (3)  Arkansas State Board of Education bonds issued under Acts 1937, No. 162 [repealed]; 
     (4)  Bonds issued by a county, city, incorporated town, or improvement district of the State of Arkansas, whether the bonds are the general obligation of the issuer or are payable out of a special fund, as long as the bonds are negotiable instruments under the law; 
     (5)  Bonds issued by a school district of the State of Arkansas; 
     (6) (A)  Shares, share accounts, or accounts of any building and loan association organized under the laws of the State of Arkansas, of any federal savings and loan association domiciled in the State of Arkansas which are insured by the Savings Association Insurance Fund, or of any credit union in Arkansas, for their eligible members, which are insured by the National Credit Union Administration. 
          (B)  However, no such investment shall exceed the amounts so insured. 
          (C)  Provided, nothing herein shall be construed to expand the field of membership of any credit union; 
     (7)  Notes, bonds, debentures, or other similar obligations issued by federal land banks, federal intermediate credit banks, or banks for cooperatives, or any other obligations issued pursuant to the provisions of an Act of Congress of the United States known as the Farm Credit Act of 1971 and acts amendatory thereto; 
     (8)  Bonds issued by a national mortgage association; 
     (9)  Notes or bonds secured by mortgage or deed of trust which the Federal Housing Administration has insured or has made a commitment to insure; 
     (10)  Notes or bonds secured fully as to principal and interest by a first mortgage or deed of trust upon improved or timbered real property located in the State of Arkansas in which provision is made for regular periodic payments on the principal, at least annually, sufficient in amount to amortize the indebtedness during a period not exceeding fifteen (15) years.  These notes or bonds are to be in an amount not exceeding sixty-five percent (65%) of the value of the real property security as determined by an appraisal thereof approved by the court; 
     (11)  Bonds, notes, debentures, or other direct obligations of a state, county, or city located without the State of Arkansas but within the United States of America, or of a corporation incorporated under the laws of the United States of America or of any state of the United States of America or of the District of Columbia which, at the time of the purchase, shall be rated in either the highest or next-highest classification established by at least two (2) nationally recognized standard financial rating services; 
     (12)  Shares of any open-end or closed-end management-type investment company or investment trust registered under the federal Investment Company Act of 1940, as amended, the portfolio of which is limited to the securities described in subdivisions (b)(1)-(b)(11) of this section herein and to repurchase agreements fully collaterized by such securities, provided that the investment company or investment trust takes delivery of the collateral either directly or through an authorized custodian; 
     (13)  Contracts for annuities or for life, health, or accident insurance on the person of the ward, or of another in whom the ward has an insurable interest, or a combination of any such contracts, if the contract is payable to the ward or to his estate, is in the usual form, and is issued by an insurance company authorized to do business in the State of Arkansas. Any such contract shall reserve the right in the ward to change the beneficiary thereof after the termination of his incompetency; or 
     (14)  Shares or interests in any common trust fund investing in common stocks or preferred stocks listed on a national securities exchange maintained by a guardian which is a state or national bank or trust company authorized by the provisions of 28-69-201 - 28-69-204 to establish and maintain common trust funds. 
(c) (1)  Without prior order of the court, no investment shall be made, other than an investment in: 
          (A)  Direct obligations of, or obligations unconditionally guaranteed as to principal and income by, the United States of America; 
          (B)  Bonds issued by the State of Arkansas; or 
          (C)  Shares of any investment company or investment trust described in subdivision (b)(12) of this section, the portfolio of which is limited to the securities described in subdivisions (c)(1)(A) and (B) of this section and to repurchase agreements fully collaterized by such securities, provided that the investment company or investment trust takes delivery of the collateral either directly or through an authorized custodian. 
     (2)  The court shall not approve an investment in an issue of securities which has been in default for a period exceeding one hundred twenty (120) days during the five (5) years next preceding the investment. 
(d)  If the guardian of the estate is a state or national bank or trust company authorized by the provisions of 28-69-201 - 28-69-204 to establish and maintain common trust funds and if the guardian has established and is maintaining such a common trust fund which, by the terms of the instrument creating it, limits the purchase of investments for such funds to investments authorized in this chapter, the guardian may invest the ward's funds in participation in the common trust fund without prior order of the court.

 

Arkansas Code Annotated Section 28-65-312:  Retention of Property and Investment.

(a)  If it is in the best interest of the ward or his estate, the court may order the guardian of the estate to retain any property belonging to the ward which may come into the hands of the guardian otherwise than by purchase by the guardian, whether or not the property is of the nature authorized by 28-65-311, as an investment of the ward's funds. 
(b)  If the guardian of the estate makes an investment which at the time of the making thereof shall meet the requirements of 28-65-311 and the investment later fails to meet the requirements, the guardian may retain the investment, unless otherwise directed by the court.

 

Arkansas Code Annotated Section 28-65-313:  Purchase of Home.

(a)  The court may authorize the purchase of real property in this state for use by the ward as a home or, unless he is an unmarried minor, as a home for his dependent family. 
(b)  The purchase shall be made only upon order of the court after notice to the ward if he is fourteen (14) years of age or over and his incompetence is due solely to minority, and to such other persons, if any, as the court may direct.

 

Arkansas Code Annotated Section 28-65-314:  Sales, Mortgages, Etc., of Property Generally.

(a) (1)  The real or personal property of the ward not excluding real property in which a minor or mentally incompetent ward has a vested homestead interest, or any part thereof or interest therein, may be sold, conveyed, released, mortgaged, leased, or exchanged or an easement thereon may be granted by the guardian of the estate upon such terms as the court may order for the purpose of paying the ward's debts, for providing for his care, maintenance, and education and the care, maintenance, and education of his dependents, or for investing the proceeds, or in any other case where it is for the best interest of the ward. 
     (2)  Participation by a guardian in behalf of his ward in the execution and delivery of one (1) or more deeds, bills of sale, assignments, or other appropriate instruments to accomplish the partition in kind between the owners thereof, of real or personal property in which the ward owns an undivided interest, for the purposes of this section shall be deemed an exchange of property of the ward. 
(b) (1)  A guardian shall not purchase property of the ward, unless sold at public sale and approved by the court, and then only if the guardian is a spouse, parent, child, brother, or sister of the ward and is a cotenant with the ward in the property. 
     (2) (A)  This requirement shall not be applicable where a special guardian is appointed to represent the interest of the ward and such special guardian reports to the court after the property has been appraised that the proposed purchase at a private sale is in the best interest of the ward. 
          (B)  The report of the special guardian shall also be subject to the approval of the court after notice to all interested parties is given and a hearing is held by the court. 
(c)  Prior to, or at the time of the approval of the sale of real or personal property made by a guardian, the court shall ascertain whether the guardian's bond is sufficient in amount and security to protect the estate of the ward with respect to the proceeds of such sale; if not, the court shall require that the guardian's bond be increased or supplemented in amount or security to adequately protect the ward's estate. 
(d)  The provisions of 28-51-105 - 28-51-109, 28-51-201 - 28-51-203 and 28-51-301 - 28-51-309, relative to decedents' estates, shall apply to sales, mortgages, leases, and exchanges of property of the ward of a guardian, except that the extent of the term of a lease of real property of a ward shall not be limited to three (3) years, nor shall the credit to be extended by the guardian be limited to one (1) year.

 

Arkansas Code Annotated Section 28-65-317:  Payment of Claim.

(a) (1)  A guardian of the estate is under a duty to pay from the estate all just claims against the estate of his ward, whether they constitute liabilities of the ward which arose prior to the guardianship or liabilities properly incurred by the guardian for the benefit of the ward or his estate and whether arising in contract or in tort or otherwise, upon allowance of the claim by the court or upon approval by the court in a settlement of the guardian's accounts. 
     (2)  The duty of the guardian to pay from the estate shall not preclude his personal liability for his own contracts and acts made and performed in behalf of the estate as it exists according to the common law. 
(b)  Upon the petition of any person having a claim against the estate of a ward for services lawfully rendered to the ward or his estate for necessaries furnished to the ward, or for the payment of a lawful liquidated claim or demand against the estate of the ward, the court, after notice, upon appropriate hearing, may direct the guardian to pay the claim.

 

Arkansas Code Annotated Section 28-65-318:  Compromise Settlements.

(a)  On petition of the guardian of the estate, the court, if satisfied that the action would be in the interest of the ward and his estate, may make an order authorizing the settlement or compromise of any claim by or against the ward or his estate, whether arising out of contract, tort, or otherwise, and whether arising before or after the appointment of the guardian. 
(b)  A settlement of a tort claim against a ward made by or in behalf of the guardian of the estate shall be binding, if otherwise valid, without authorization or approval by the court. However, a guardian shall not take credit in his accounts for any money or property expended by him in the settlement unless the guardian has first been authorized by the court to make the settlement or unless the guardian, after having made the settlement, establishes to the satisfaction of the court by clear and convincing evidence that the settlement was in the interest of the ward and his estate. 
(c)  A discharge, acquittance, or receipt given by a guardian of the estate for any claim other than one arising out of tort shall be valid in favor of any person who takes it in good faith, but the guardian shall assume the burden of establishing that any compromise not previously approved by the court was made in the interest of the ward and his estate and shall be liable to his ward if he or his estate is injured thereby.

 

Arkansas Code Annotated Section 28-65-319:  Employment of Professionals.

(a) (1)  The guardian may employ legal counsel in connection with the discharge of his duties, and the court shall fix the attorney's fee, which shall be allowed as an item of the expense of administration. 
     (2)  If the guardian is an attorney and has performed necessary legal services in connection with the guardianship, the court shall take into consideration the nature and extent of such services in fixing the compensation of the guardian. 
(b)  The guardian, when authorized by the court, may employ accountants, engineers, appraisers, brokers, and other persons whose services are reasonably required in the discharge of his duties, and the court shall fix the compensation for such services, which shall be allowed as an item of expense of the administration.

 

Arkansas Code Annotated Section 28-65-320:  Accounting.

(a)  Unless otherwise directed by the court, a guardian of the estate shall file with the court annually within sixty (60) days after the anniversary date of his appointment, and also within sixty (60) days after termination of his guardianship, a written verified account of his administration. 
(b)  Notice of the hearing of every accounting shall be given to the same persons and in the same manner as is required by 28-65-207 and 28-65-208 for notice of the petition for the appointment of a guardian, except that the court may dispense with the giving of notice to a mentally incompetent ward upon a satisfactory showing that the giving of notice would be detrimental to his well-being. 
(c)  The account shall show, with respect to each item for which credit is claimed, whether or not the item has been paid, and, in either event, the court may allow or disallow any item in whole or in part, subject to such protection as is extended the guardian with respect to actions taken by him in good faith in reliance upon orders previously made by the court. 
(d)  When notice has been given as provided in subsection (b) of this section, the settlement by the court of an account is binding upon all persons concerned, subject to the right of appeal and to the power of the courts to vacate its final order. 
(e)  The provisions of 28-52-101, 28-52-103 - 28-52-105, 28-52-107, 28-52-108, and 28-52-110 relating to accounting by a personal representative shall apply also to accounting by guardian. 
(f)  A guardian who fails to file an accounting within the time limit prescribed by this section may be denied compensation for services performed between the date an accounting should have been filed and the date it is filed.

 

Arkansas Code Annotated Section 28-65-321:  Inventory - Appraisement.

(a)  The guardian of the estate shall file an inventory of the ward's property in the same manner and subject to the same requirements as are provided in 28-49-110 for the inventory of a decedent's estate. 
(b)  The court may, in its discretion, order the appraisement of the ward's property by one (1) or more disinterested and qualified persons appointed by the court.

 

Arkansas Code Annotated Section 28-65-322:  Reports.

All guardians shall file an annual report with the court. The report shall contain: 
(1)  The person's current mental, physical, and social conditions; 
(2)  His present living arrangements; 
(3)  The need for continued guardianship services; 
(4)  An accounting of his estate if the guardian has been delegated that responsibility by the court order or as a result of being a guardian of the estate; 
(5)  Any other information requested by the court or necessary in the opinion of the guardian.

 

Arkansas Code Annotated Section 28-65-323:  Administration of Deceased Ward's Estate.

(a)  Upon the death of a ward, the guardian of his estate is authorized, as such, subject to the direction of the court, to administer the estate of the deceased ward after further letters are issued to him, after a hearing, pursuant to a petition for letters, testamentary or of administration, which has been filed not later than forty 40 days after the death of the ward, subject, however, to the provisions of 28-40-116. 
(b)  In such a case, the guardian shall file an account of his administration of the ward's estate up to the date of the death of the ward and shall cause a notice of the filing of such account to be published combined with a notice to creditors of the deceased ward. 
(c)  Proceedings for the presentation, allowance, and payment of claims against the estate of the deceased ward shall be governed by the laws relating to claims against decedents' estates, with the guardian serving as personal representative. 
(d)  Liability on the guardian's bond shall continue and shall apply to the complete administration of the estate of the deceased ward by the guardian. 
(e)  If letters, testamentary or of administration, are granted to someone other than the guardian upon a petition filed within forty (40) days after the death of the ward, the authority of the guardian to administer the ward's estate shall terminate upon the appointment and qualification of the personal representative, and the guardian shall deliver to the personal representative the assets of the ward's estate remaining in the hands of the guardian. 
(f)  The probate clerk is entitled to additional fees, not to exceed one hundred dollars ($100), to cover the initiation of the administration of the ward's estate and, if so initiated, shall direct the personal representative to pay them.

 

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 28. WILLS, ESTATES, AND FIDUCIARY RELATIONSHIPS
SUBTITLE 5. FIDUCIARY RELATIONSHIPS
CHAPTER 65. GUARDIANS GENERALLY
SUBCHAPTER 4. TERMINATION OF GUARDIANSHIP

 

Arkansas Code Annotated Section 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; 
     (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)  If the guardianship was solely because of the ward's minority, and either the ward attains his majority or the disability of minority of the ward is removed for all purposes by a court of competent jurisdiction. 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 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 decedent's estates.

 

 

Last Updated:  July 28, 2003