While it may be difficult to imagine how your child would manage if you were incapacitated by illness or passed away unexpectedly, you should still appoint a guardian for your minor children. If you die without a contingency, your child’s future could be decided by a judge—someone whose hands are tied by Arkansas law and who may not consider your values and preferences when selecting a surrogate parent.
The Importance of Choosing a Guardian
When the parent of a minor child passes away, their Arkansas county’s probate court will supervise guardianship proceedings.
Courts, in general, have significant powers of discretion in deciding who is best suited to care for a child. In most cases, the court will consider the deceased person’s close blood relations: a surviving spouse, siblings, and even adult children.
However, probate courts will also look at the decedent’s estate plan for instructions. If you wrote a will or delegated a trusted friend or relative the durable power of attorney, the court will typically respect your decision.
Legal Requirements for Guardians in Arkansas
Arkansas only has four requirements for who can be appointed the guardian of a child or person with special needs. A guardian must be:
- A resident of Arkansas
- At least 18 years of age
- Of sound mind
- Neither a convicted felon nor a pardoned felon
If you are an Arkansas resident who wishes to appoint a guardian outside the state, you should speak to an Arkansas estate planning attorney to discuss your options and legal obligations.
Choosing the Right Guardian
Choosing the right guardian for your children can be difficult, no matter how old they may be. After all, if you pass away, your guardian will be responsible for your child’s safety and welfare. Your ideal guardian, then, should be someone who has the resources, mindset, and commitment to care for your children and provide the opportunities they need to flourish.
When striving to identify a potential guardian, you may wish to consider:
Your relationship with a potential guardian
You can consider close blood relations, including parents and siblings. However, a guardian does not have to be an immediate relative. Your extended family—and even friends—may be better choices.
The guardian’s home situation
Some people may be able to offer love. However, they may not have the time, energy, or resources to care for a child, especially if they have a demanding job or children of their own.
Where the guardian lives
You may wish to consider where a guardian lives, especially if you want your child to remain in the same community or close to other family members.
Your guardian’s values
If you cannot care for your child, you likely want someone who will raise them in accordance with your beliefs and values. Your guardian should thus be familiar with your preferences—someone who will respect your memory and ensure your children get the right upbringing.
When parents choose a guardian, they often spend too much time thinking about a prospective guardian’s finances.
While finances should be a concern, money should never be the deciding factor in a guardianship arrangement: your estate plan could and should include provisions to assist your guardian in providing for your child.
The best guardian is, ultimately, someone who would love and care for your child.
Arkansas’ Guardianship Process
Whenever a parent passes away and leaves behind a minor child, the child’s upbringing will—in most cases—be determined by an Arkansas probate court. If the child has another surviving parent who is of sound mind and willing to care for the child, then the parent will most often be awarded custody or permitted to retain custody.
If there is no surviving parent, then your appointed guardian or Arkansas estate planning attorney should:
- File a Petition for Appointment of a Guardian of the Person with the probate court
- Request a professional evaluation of your child—referred to by the probate court as the “ward”—within six months of filing the petition
- Attend a guardianship hearing. The appointed guardian must be present with their attorney if they have one
- Receive and review the guardianship order
- Adhere to the court’s provisions
If the probate court does not respect your wishes, then your guardian and their attorney have the right to appeal the decision.
Since appealing a decision can be costly and time-consuming, your family should already have consulted an experienced lawyer who is familiar with your current estate plan and guardianship preferences.
How You Can Protect Your Guardianship Decision
If you are a parent or the caretaker of a relative with special needs, you should always have a contingency plan. While guardianship decisions are, ultimately, the purview of your local probate court, Arkansas judges will usually respect a parent’s final wishes when appointing a guardian.
However, a guardianship decision should never be made in haste: your guardian should be named in a will that meets Arkansas’ legal requirements, while your child should be provided for in a holistic estate plan that ensures their legacy no matter your age or the circumstances of your death. An estate planning attorney could help ensure that your child’s future is secure and that nothing is left to chance.
Contact Quraishi Law & Wealth Today
If you want to appoint a guardian with confidence, Quraishi Law & Health could help you draft your guardianship documents and create or revise an existing estate plan to best provide for your child’s future. Please send us a message online or call us at 870-275-4304 to schedule your initial consultation.