Sunday, July 13, 2008

AR ST § 28-65-203

Page 1

A.C.A. § 28-65-203

8.6.1.1.V2West's Arkansas Code Annotated Currentness

Title 28. Wills, Estates, and Fiduciary Relationships

Subtitle 5. Fiduciary Relationships (Chapters 64 to 73)

Chapter 65. Guardians Generally

Subchapter 2. Appointment


§ 28-65-203. Suitability to serve


(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 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:


(1) When the major portion of the support of the minor is being supplied or administered by the department or organization;


(2) When the court finds that:


(A) The minor has been abandoned by his or her parents; or


(B) The minor's parents are incapacitated or unfit for the duties of guardianship; or


(3) If no other suitable person can be found who is able and willing to assume the duties of guardianship.


(c) A parent under eighteen (18) years of age is qualified for appointment as guardian of the person of his or her 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 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.


(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, probate clerk of a circuit court, or deputy of either, nor a circuit judge, shall be appointed guardian of the person or estate of an incapacitated person unless the incapacitated person shall be related to him or her 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 or her official capacity shall be appointed as guardian for any incapacitated person.


(2) No employee of a public agency that 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 that provides direct services to the incapacitated person shall be appointed as a temporary guardian.


<Text of (4) effective upon fulfillment of the contingency set out in Acts of 2007, Act 862, § 5.>


(4) Nothwithstanding [FN1] 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.


<Text of (5) effective until fulfillment of the contingency set out in Acts of 2007, Act 862, § 5.>


(5) The department shall issue regulations to implement this provision.


<Text of (5) effective upon fulfillment of the contingency set out in Acts of 2007, Act 862, § 5.>


(5) The department shall promulgate rules 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 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.


CREDIT(S)


Acts of 1985, Act 940, § 8; Acts of 1993, Act 416, § 1; Acts of 2007, Act 862, § 3 (See Historical and Statutory Notes).


PRIOR COMPILATIONS


Formerly A.S.A. 1947, § 57-827.


[FN1] So in enrolled act.


HISTORICAL AND STATUTORY NOTES


Arkansas Code Revision Commission


Technical changes were made in 2003 and 2007 to conform with the official Arkansas Code of 1987 as approved by the Arkansas Code Revision Commission.


2007


Acts of 2007, Act 862, § 3, amended the section by adding a new (h)(4); and redesignating former (h)(4) as (h)(5 and substituting "promulgate rules" for "issue regulations" therein.


Acts of 2007, Act 862, § 5, provides:


"Contingent effectiveness.


"This act shall take effect upon the occurrence of the following:


"(1) The Director of the Division of Aging and Adult Services of the Department of Health and Human Services determines that adequate appropriation, funding, and positions are available to carry out a public guardianship program for adults; and


"(2) The director appoints an employee of the Division of Aging and Adult Services to serve as Public Guardian for Adults."


CROSS REFERENCES


Public guardians for adults, duties, see § 28-65-703.


LIBRARY REFERENCES


Guardian and Ward 10.


Westlaw Key Number Search: 196k10.


NOTES OF DECISIONS


Bank 2

Grandparents 4

Qualifications for appointment, in general 0.5

Sheriff 3

Stepchildren 1


0.5. Qualifications for appointment, in general


Ward's daughter was not entitled to appointment of guardianship over ward, although she claims she was better suited than ward's 72-year-old brother to handle the physical requirements of caring for ward; the only age-oriented qualification in statutes guiding the appointment of guardians required a guardian to be at least 18 years old and of sound mind, and there was no evidence that brother's age or health would interfere with the care he would provide ward. Martin v. Decker, 2006, 237 S.W.3d 502, 96 Ark.App. 45. Mental Health 118


1. Stepchildren


Where stepdaughter, who was in loco filiae to stepfather, was living with her husband, an army officer, at Hot Springs, Arkansas on grounds of Army-Navy Hospital, and stepfather was living with them at time stepdaughter was appointed guardian of stepfather, who had become senile, stepdaughter was legally qualified as a resident to become guardian. Ark.Stats. §§ 57-606, 57-607. Metcalfe v. Nichol, 1955, 225 Ark. 574, 283 S.W.2d 853. Mental Health 116.1


2. Bank


Appointment of bank as guardian of person of incompetent was improper. Ark.Stats. §§ 57-624, 57-625. Bogan v. Arkansas First Nat. Bank of Hot Springs, 1971, 249 Ark. 840, 462 S.W.2d 203. Mental Health 116.1


3. Sheriff


On January 12, 1949, prior to effective date of the Probate Code prohibiting a sheriff from acting as guardian of an incompetent, probate court had power to appoint sheriff as guardian of incompetent person. Ark.Stats. §§ 57-122, 57-607. In re Wilson, 1950, 216 Ark. 348, 225 S.W.2d 691. Mental Health 116.1


4. Grandparents


Paternal grandmother who failed to show that she was not convicted and unpardoned felon was not "qualified" to serve as guardian for her grandchild. Bailey v. Maxwell, 2006, 230 S.W.3d 282, 94 Ark.App. 358. Guardian And Ward 10


Paternal grandmother who perjured herself when she stated, in verified petition for guardianship of her grandchild and at hearing on petitions for guardianship, that she and paternal grandfather were husband and wife, when they had actually been divorced for more than twenty years, was not "suitable" to serve as guardian for grandchild; that grandmother perjured herself on such a fundamental matter was sufficient reason for trial court to doubt whether she would act honorably in discharging her trust. Bailey v. Maxwell, 2006, 230 S.W.3d 282, 94 Ark.App. 358. Guardian And Ward 10


Trial court was not required to consider best interests of child in granting maternal grandparents' petition for guardianship of child rather than paternal grandmother's petition; paternal grandmother failed to establish that she was qualified to act as guardian, as she did not show that she was not a convicted and unpardoned felon, and grandmother was not suitable to be guardian, as she perjured herself in verified petition for guardianship and at hearing on petitions for guardianship by falsely stating that she was married. Bailey v. Maxwell, 2006, 230 S.W.3d 282, 94 Ark.App. 358. Guardian And Ward 10


A.C.A. § 28-65-203, AR ST § 28-65-203


Current through end of the 2008 First Ex.Sess., including changes

made by the Arkansas Code Revision Commission received through

June 27, 2008.


Copyright © 2008 Thomson Reuters/West


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© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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