Ark. Code Ann. § 28-65-101 (2026)
Definitions
As used in this chapter:
- “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;
- “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 or her health or safety or to manage his or her estate;
- “Guardian” means 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;
- “Guardian ad litem” means one appointed by a court in which a particular proceeding is pending to represent a ward or an unborn person in that proceeding;
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- “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 or her health or safety or to manage his or her estate.
- “Incapacitated person” includes an endangered adult or impaired adult as defined in § 9-20-103, who is in the custody of the Department of Human Services.
- Nothing in this chapter shall be construed to mean a person is incapacitated for the sole reason he or she relies consistently on treatment by spiritual means through prayer alone for healing in accordance with his or her religious tradition and is being furnished such treatment;
- “Least restrictive alternative” means the form of assistance that least interferes with the legal capacity of the respondent to act in his or her own behalf;
- “Limited guardian” means one whose powers and authority have been limited to the specific powers, authorities, and duties set forth in the order of appointment;
- “Professional” means a physician, licensed psychologist, or licensed certified social worker with training, experience, and knowledge of the particular alleged disability of the respondent;
- “Relative” means the spouse, child, grandchild, parent, grandparent, or sibling of a ward;
- “Temporary guardian” means a guardian appointed pursuant to § 28-65-218; and
- “Ward” means an incapacitated person for whom a guardian has been appointed.
History. Acts 1985, No. 940, § 2; A.S.A. 1947, § 57-821; Acts 2007, No. 121, § 1; 2011, No. 1027, § 1; 2017, No. 667, § 4.
Amendments. The 2007 amendment inserted (5)(B) and redesignated former (5)(B) as (5)(C).
The 2011 amendment inserted “endangered or” and substituted “§ 9-20-103” for “§ 9-20-103(8)(A)” in (5)(B).
The 2017 amendment added the definition for “Relative”.
Research References
Ark. L. Rev.
Pecora, The Constitutional Right to Court-Appointed Adversary Counsel for Defendants in Guardianship Proceedings, 43 Ark. L. Rev. 345.
U. Ark. Little Rock L.J.
Survey — Probate, 10 U. Ark. Little Rock L.J. 599.
U. Ark. Little Rock L. Rev.
Matthew L. Brunson, Family Law—Providing for Those Who Cannot Provide for Themselves: A Proposal for the Arkansas General Assembly to Follow in the Footsteps of an Already Expansive Guardianship Law and Grant Guardians the Right to File for Divorce on Behalf of a Ward, 38 U. Ark. Little Rock L. Rev. 271 (2016).
Case Notes
Constitutionality.
On appeal of the order granting a permanent guardianship of appellant's son to his grandmother, the Supreme Court of Arkansas did not address the merits of appellant's constitutional challenge to the guardianship statutes, §§ 28-65-101 to 28-65-707, because the attorney general was not notified of the challenge as required by § 16-111-106(b) and there had not been a complete adversarial development of the constitutional issues. Mahavier v. Mahavier (In re A.M.), 2012 Ark. 278 (2012).
Evaluation.
Failure to obtain a professional evaluation prior to a hearing on the appointment of a guardian was clearly erroneous; there was no oral testimony or a sworn written statement of a qualified professional. Without the required professional examination, there was insufficient evidence of the need for a guardian. Autry v. Beckham, 2014 Ark. App. 692, 450 S.W.3d 247 (2014).
“Incompetent.”
The definition of an “incompetent” as set out in former statute did not change the test of competency approved by the Supreme Court in many decisions. Powers v. Chisman, 217 Ark. 508, 231 S.W.2d 598 (1950) (decision under prior law).
Professional.
Trial court did not err in determining that an original guardianship order was simply voidable rather than void ab initio; while the original petition failed to meet the statutory requirements for obtaining a guardianship, such as those in subdivision (8) of this section, the petition's deficiencies did not strip the court of jurisdiction over the parties or the subject matter. Baptist Health Med. Ctr. v. First Cmty. Bank of Batesville, 2017 Ark. App. 671, 537 S.W.3d 760 (2017).
Cited: In re Bailey, 299 Ark. 352, 771 S.W.2d 779 (1989).