Arkansas

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process


I. Designation of Standby Guardian

The Arkansas standby guardian statute at Probate 28-65-221 is very brief – just one paragraph. By its terms, however, it follows procedures set forth in the larger chapter on guardianship.

No process is described for nominating a standby guardian. However, such nomination is certainly permitted, and even implied. For example, the court will give "due regard" to requests "in a will or other written instrument executed by a parent." Preferred "over all others" as guardians are parents. The rule that will guide the court, however, is that the most suitable guardian is one "who is willing to serve." The court reserves to itself the right to make a final selection. [Probate 28-65-204]

A parent who is eligible to use the standby guardian statute is one who is "chronically ill or near death." [Probate 28-65-221] No standard of evidence or procedure for asserting this condition is described. General guardianship provisions state that a petition must make "a statement of the respondent's alleged disability." [Probate 28-65-205] Most likely such statement would refer to the child's incapacitation through minority (assuming the child would be the respondent) but the parent's disability might also be described here.

The parent does not give up any parental rights through standby guardianship. The guardianship is to be activated upon the future death, mental incapacity or physical debilitation plus consent of the parent. [Probate 28-65-221]





II. Agreement of the Non-Custodial Parent

Parents "if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person." [Probate 28-65-204] The court thus reserves a right to determine suitability.

Notice of the hearing for appointment of guardian must be served on parents of a child. However, notice need not be given to anyone whose "whereabouts is unknown and cannot by the exercise of reasonable diligence be ascertained." [Probate 28-65-207]





III. Role of the Standby Guardian

The standby guardian is given specific duties in the short Arkansas statute to "immediately" notify the court of the death, incapacity or debilitation of the parent. [Probate 28-65-221] No process for doing this, or standard of evidence is described. The statute goes on to state that the standby guardian "shall immediately assume the role of guardian for the minor children." [Probate 28-65-221] The language suggests that the court would look on this as a permanent guardianship.

Guardians are to care for, maintain, protect, train and educate the children who are their wards. [Probate 28-65-301] A guardianship order would often add many more details. In the order the court may limit the power and duties of a guardian, decide whether the guardianship will cover the child's person and property (or be limited to the child's person), and what rights the child may exercise without intervention. [Probate 28-65-214] The wishes of children over 14 will be given particular weight.

Apparently the standby guardian exercises concurrent decision-making with the parent, in the sense that the parent does not give up parental rights. [Probate 28-65-221]





IV. Court Process

Court process begins with the filing of a petition for appointment as standby guardian. [Probate 28-65-205]. This may be accompanied by the parent's designation in writing of a particular person suitable to be guardian. [Probate 28-65-204 (b)(1)] The petition would state that the guardianship would become active upon the death, incapacity, or disability plus consent of the parent. [Probate 28-65-221] Notice would issue to parents whose whereabouts can be ascertained. [Probate 28-65-207 (a)(4) and (b)(1)] An appointment hearing would be held, at which matters in controversy would be settled. A guardianship order would be issued describing the particular terms of the guardianship. [Probate 28-65-214]

When a triggering event occurred, the appointed standby guardian would immediately inform the court and assume guardianship duties. [Probate 28-65-221] The court would then issue an order for guardianship – apparently a permanent guardianship that would last until terminated by court order or the child's majority. [Probate 28-65-401]

		Arkansas Code of 1987 Annotated Title 28: Wills, Estates and Fiduciary RelationshipsSubtitle 5: Fiduciary RelationshipsChapter 65: Guardians GenerallyProbate Sections: 28-65-203; -204;-205;-207; -214;-221, -301;-401