Ark. Code Ann. § 28-65-203 (2020)
Qualifications of guardian
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A natural person is qualified to be appointed guardian of the person and of the estate of an incapacitated person if he or she is:
- A resident of this state;
- At least eighteen (18) years of age;
- Of sound mind; and
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Subject to the limitations in subdivision (a)(2) of this section, either:
- Not a convicted and unpardoned felon; or
- A convicted and unpardoned felon who has disclosed his or her prior felony conviction and for whom the court has entered written findings stating that, notwithstanding the felony conviction, he or she is otherwise qualified after reviewing a certified copy of the sentencing order.
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Subject to the requirements in subdivision (a)(1) of this section, a convicted and unpardoned felon may:
- Be the guardian of the person for an adult;
- Be the guardian of the person for a minor who is not subject to a dependency-neglect proceeding under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., if the convicted and unpardoned felon is a relative or fictive kin as defined in § 9-28-402;
- Be the guardian of the person for a minor who is subject to a dependency-neglect proceeding under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., if the convicted and unpardoned felon qualifies for guardianship under subsection (b) of this section; and
- Not be the guardian of the estate for any person.
- If a convicted and unpardoned felon fails to file a report or accounting required under this subchapter or by the court, the court shall set a hearing for the convicted and unpardoned felon to show cause as to why the guardianship should not be terminated.
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A natural person is qualified to be appointed guardian of the person and of the estate of an incapacitated person if he or she is:
- However, notwithstanding subsection (a) of this section, a natural person who is a resident of this state, eighteen (18) years of age or older, of sound mind, and a convicted and unpardoned felon whose home has been opened under § 9-28-409 either as a foster home or as an adoptive home is qualified to be a guardian of the person or estate of a minor in the custody of the Department of Human Services.
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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 organization;
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When the court finds that:
- The minor has been abandoned by his or her parents; or
- The minor's 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.
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- A parent under eighteen (18) years of age is qualified for appointment as guardian of the person of his or her child.
- If the department 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.
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- 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.
- A bank or similar institution with trust powers may be appointed guardian of the estate of an incapacitated person.
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- 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.
- A person whom the court finds to be unsuitable to perform the duties incident to the appointment shall not be appointed guardian of the person or estate of an incapacitated person.
- A sheriff, probate clerk of a circuit court, or deputy of either, or a circuit judge, shall not be appointed guardian of the person or estate of an incapacitated person unless the incapacitated person is related to him or her within the third degree of consanguinity.
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- Except as provided in subdivision (i)(4) of this section, a public agency or employee of any public agency acting in his or her official capacity shall not be appointed as guardian for any incapacitated person.
- An employee of a public agency that provides direct services to the incapacitated person shall not be appointed guardian of the person or estate of the incapacitated person.
- An employee of a public agency that provides direct services to the incapacitated person shall not be appointed as a temporary guardian.
- 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.
- The department shall promulgate rules to implement this provision.
- A person may be appointed temporary guardian of an incapacitated person notwithstanding the provisions of subsection (h) or subsection (k) 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.
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A circuit court of this state shall not appoint a person or institution as the permanent custodian or permanent guardian of the person or estate of an adult in the custody of the department unless:
- The department has evaluated the prospective guardian under the department's authority under § 9-20-122 and promulgated department policy; or
- The department has evaluated the prospective custodian under the department's authority under § 9-20-122 and promulgated department policy.
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- A circuit court of this state shall not appoint an unrelated person, a related person that is not related within the fifth degree of consanguinity, or an institution as a permanent custodian or permanent guardian of the person or estate of an adopted juvenile unless at least twenty (20) days before the hearing the prospective guardian files a written home study that has been conducted by a licensed certified social worker.
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- The home study shall include a state-of-residence criminal background check, if available, and a national fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation on the prospective guardian and all household members eighteen (18) years of age and older.
- If a prospective guardian has lived in another state for at least six (6) years immediately prior to guardianship, then only a state-of-residence criminal background check is required.
- The home study shall address whether the home is a suitable home and shall include a recommendation as to the approval of the petitioner as a guardian.
- The home study shall contain an evaluation of the guardian with a recommendation as to the granting of the petition for guardianship and any other information the court requires regarding the petitioner or the person.
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The department shall not be ordered by any court to conduct a guardianship home study unless:
- The court has first determined the responsible party to be indigent; and
- The person to be studied lives in the State of Arkansas.
History. Acts 1985, No. 940, § 8; A.S.A. 1947, § 57-827; Acts 1993, No. 416, § 1; 2003, No. 1185, § 280; 2007, No. 862, § 3; 2009, No. 301, § 2; 2011, No. 1027, § 2; 2013, No. 1137, § 2; 2015, No. 1018, § 4; 2019, No. 833, § 1.
A.C.R.C. Notes. Acts 2007, No. 862, § 1, provided:
“Legislative findings.
“The General Assembly finds that:
“(1) Many adults lack the capacity to provide informed consent to necessary health care, have not executed an advance health care directive or a durable power of attorney, and have no friend or family member qualified and willing to consent on their behalf; and
“(2) It is therefore necessary for the preservation of the public health and safety to provide for a public guardian who can make informed consent to needed medical and long-term care on behalf of incapacitated adults who are unable to consent for themselves and for whom there is no other person qualified and willing to consent.”
Amendments. The 2007 amendment added (h)(4) and redesignated former (h)(4) as present (h)(5).
The 2009 amendment, in (b), deleted “The Department of Human Services or” preceding “charitable organization” in the introductory language, and deleted “department or” following “administered by” in (b)(1); inserted (c)(2) and redesignated the remaining text accordingly; substituted “subdivision (h)(4)” for “subsection (b)” in (h)(1); and made related changes.
The 2011 amendment added (b); redesignated former (b) through (i) as present (c) through (j); inserted “or subsection (k)” following “subsection (h)” in present (j); and added (k).
The 2013 amendment, in the introductory language of (b), deleted the phrase “the provisions in” after “notwithstanding,” inserted “whose home has been opened under § 9-28-409 either as a foster home or as an adoptive home,” after “felon,” and deleted (b)(1) and (b)(2).
The 2015 amendment added (l) and (m).
The 2019 amendment rewrote (a).
Case Notes
Banks As Guardians.
In a guardianship and conservatorship action, the trial court did not abuse its discretion by appointing a bank as the ward's conservator because the ward was incompetent to handle her finances, and the appointment was proper pursuant to subdivision (d)(2) of this section. Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47 (2010).
Constitutionality of Legislation.
Circuit court properly appointed a permanent guardian of a child and deemed the statute providing for such appointment constitutional because guardianship proceedings were “special proceedings” and excepted from the traditional Rules of Civil Procedure. Swenson v. Kane, 2014 Ark. 444, 447 S.W.3d 118 (2014).
Corporations as Guardians.
A corporation was held not qualified to serve as guardian of the person. Bogan v. Ark. First Nat'l Bank, 249 Ark. 840, 462 S.W.2d 203 (1971) (decision under prior law).
Requirements for Appointment.
Denial of paternal grandmother's petition for guardianship was affirmed because the grandmother did not meet the qualifications under subsection (a) of this section in that she failed to establish that she was not a convicted and unpardoned felon. Bailey v. Maxwell, 94 Ark. App. 358, 230 S.W.3d 282 (2006).
Court properly appointed an incapacitated person's brother, rather than her daughter, to be her guardian as the two had a loving brother and sister bond, they had a long history of working well in a business enterprise, and the brother had been a constant in the incapacitated person's life and had helped in providing for her care; further, the daughter had a long period of estrangement from her mother precipitated by her absconding to California with $46,000 of her mother's money and, after she reentered her mother's life, she made it difficult for others to see her mother and made unfounded accusations of theft. Martin v. Decker, 96 Ark. App. 45, 237 S.W.3d 502 (2006).
Circuit court did not err in appointing a sister as guardian over her sibling, an incapacitated adult, without holding a hearing to determine the sister's qualifications or making specific factual findings regarding her suitability because the record did not indicate that the circuit court ever refused any request by the brother to hold an evidentiary hearing or issue findings of fact; nothing in this section mandates a hearing or specific factual findings on the question of a guardian's ability to serve, and no such requirements are set forth in § 28-65-210 . Kuelbs v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 284 (Ark. June 2, 2011).
Notwithstanding the contentions of a child's grandparents that appellee failed to establish that she was qualified or suitable to act as the child's guardian, the appellate court concluded there was ample evidence before the circuit court that appellee was qualified and suitable to serve as guardian. The circuit court's finding that appellee would be the better person to parent the child was supported, and the appellate court was not left with a definite and firm conviction that a mistake had been made. Brewer v. Bair-Massey (In re A.B.), 2018 Ark. App. 529, 562 S.W.3d 891 (2018).
Residence and Domicile.
A person who lived on an army post within the state of Arkansas was a resident within the meaning of former similar statute so as to be appointed guardian of an incompetent. Metcalfe v. Nichol, 225 Ark. 574, 283 S.W.2d 853 (1955) (decision under prior law).
The use of the word “domicile” in former statute similar to § 28-65-202 showed that the legislature knew and appreciated the difference between residence and domicile in prescribing the qualifications of a guardian and intended only to require that a guardian be a resident. Metcalfe v. Nichol, 225 Ark. 574, 283 S.W.2d 853 (1955) (decision under prior law).
Sheriffs as Guardians.
Prior to effective date of the 1949 Probate Code prohibiting a sheriff from acting as guardian of an incompetent, a probate court had the power to appoint a sheriff as a guardian of an incompetent person. In re Wilson, 216 Ark. 348, 225 S.W.2d 691 (1950) (decision under prior law).
Stepchildren as Guardians.
Where a stepfather stood in loco parentis to his stepdaughter and she in loco filiae to him, the stepdaughter was entitled to be appointed guardian of the stepfather who became senile. Metcalfe v. Nichol, 225 Ark. 574, 283 S.W.2d 853 (1955) (decision under prior law).
Cited: In re Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987).