--------------------------------------------------------------------
If you've noticed that an elderly or ill loved one is increasingly unable to care for themselves, or perhaps you've spent the past 17 years raising a child with special-needs and see their 18th birthday on the horizon, you're likely wondering .... how do I go about getting one of these fancy Guardianships?
For a court to award a guardianship, there are two broad questions that must be answered.
1. That a guardianship is needed. In legal speak, we say that the ward is 'incompetent'.
2. That a particular person is qualified and the best person to be the guardian.
Competence:
In a childhood guardianship (which occur when the 'typical' caregivers, parents, of a child between birth and 18 years old are unable to meet the child's needs) the child is incompetent "by virtue of his minority". This means, we assume someone under the age of 18 can't meet the responsibilities of self-reliance and is in need of a qualified other to do so.
Adult Guardianship are different. Here the presumption is that anyone over the age of 18 IS able to handle their own affairs. Most states (including Arkansas) require an affidavit or testimony from a medical professional that includes a professional assessment of the abilities of the ward and the impact of any impairments on the ward's capability to meet the essential requirements for his or her health or safety (health care, food, shelter, clothing, and protection without which serious illness or serious physical injury will occur) or to manage his or her estate (i.e. take car of her money and finances).
A Judge may require testimony and the submission of evidence to explore fully whether the proposed ward is able to make decisions and provide care for themselves and to what extent.
Guardian Qualification
To be a Guardian in Arkansas, you must be:
- over the age of 18
- have not been convicted of a felony
- be of sound mind - meaning you can't need a Guardian yourself
In most cases, the individual seeing Guardianship is either a parent or child of the proposed ward. In the case where an elderly or ill person is in need of a Guardian and has multiple children, the court must make a determination which is most qualified based on a number of considerations beyond this blogs scope. If your child with special-needs is turning 18 and there isn't another parent to contest your desire to continue providing care into the child's adulthood, courts will likely grant Guardianship to you as the parent.
