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1 State of Arkansas A Bill
2 95th General Assembly
3 Regular Session, 2025 HOUSE BILL 1838
4
5 By: Representative Dalby
6 By: Senator A. Clark
7
8 For An Act To Be Entitled
9 AN ACT TO AMEND THE LAW CONCERNING PROBATE ACTIONS;
10 TO AMEND THE LAW CONCERNING ADOPTION AND
11 GUARDIANSHIP; AND FOR OTHER PURPOSES.
12
13
14 Subtitle
15 TO AMEND THE LAW CONCERNING PROBATE
16 ACTIONS; AND TO AMEND THE LAW CONCERNING
17 ADOPTION AND GUARDIANSHIP.
18
19 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
20
21 SECTION 1. Arkansas Code � 9-9-206 is amended to read as follows:
22 9-9-206. Persons required to consent to adoption -- Consideration for
23 relinquishing minor for adoption.
24 (a) Unless consent is not required under � 9-9-207, a petition to
25 adopt a minor may be granted only if written consent to a particular adoption
26 has been executed by:
27 (1) The mother of the minor;
28 (2) The father of the minor if:
29 (A) The father was married to the mother at the time the
30 minor was conceived or at any time thereafter;
31 (B) The minor is his child by adoption;
32 (C) He has physical custody of the minor at the time the
33 petition is filed;
34 (D) He has a written order granting him legal custody of
35 the minor at the time the petition for adoption is filed;
36 (E) A court has adjudicated him to be the legal father
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1 prior to the time the petition for adoption is filed;
2 (F) He proves a significant custodial, personal, or
3 financial relationship existed with the minor before the petition for
4 adoption is filed; or
5 (G) He has acknowledged paternity under � 9-10-120(a);
6 (3) Any person lawfully entitled to custody of the minor or
7 empowered to consent;
8 (4) The court having jurisdiction to determine custody of the
9 minor, if the legal guardian or custodian of the person of the minor is not
10 empowered to consent to the adoption; and
11 (5) The minor, if more than twelve (12) years of age, unless the
12 court in the best interest of the minor dispenses with the minor's consent;
13 and
14 (6) The spouse of the minor to be adopted.
15 (b)(1) The consent of a minor who is twelve (12) years of age or older
16 shall be given at the adoption hearing.
17 (2) The court may waive the requirement for the minor's consent
18 under subdivision (b)(1) of this section upon a finding by clear and
19 convincing evidence that the waiver is in the minor's best interest.
20 (b)(c)(1) A petition to adopt an adult may be granted only if written
21 consent to adoption has been executed by the adult and the adult's spouse the
22 adult consents at the adoption hearing and written or testimonial consent is
23 given by the adult's spouse, if the adult is married.
24 (2) The court may waive the requirement for the spouse's consent
25 under subdivision (c)(1) of this section upon a finding that the consent is
26 not possible or is being unreasonably withheld.
27 (c)(d) Under no circumstances may a parent or guardian of a minor
28 receive a fee, compensation, or any other thing of value as a consideration
29 for the relinquishment of a minor for adoption. However, incidental costs for
30 prenatal, delivery, and postnatal care may be assessed, including reasonable
31 housing costs, food, clothing, general maintenance, and medical expenses, if
32 they are reimbursements for expenses incurred or fees for services rendered.
33 Any parent or guardian who unlawfully accepts compensation or any other thing
34 of value as a consideration for the relinquishment of a minor shall be guilty
35 of a Class C felony.
36
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1 SECTION 2. Arkansas Code � 9-9-208(a), concerning the manner that
2 consent to adoption shall be executed, is amended to read as follows:
3 (a) The required consent to adoption shall be executed at any time
4 after the birth of the child and in the manner following:
5 (1) If by the individual to be adopted, in the presence of the
6 court consent must be given or affirmed to the court at the adoption hearing;
7 (2) If by an agency, by the executive head or other authorized
8 representative, in the presence of a person authorized to take
9 acknowledgments;
10 (3) If by any other person, in the presence of the court or in
11 the presence of a person authorized to take acknowledgments; and
12 (4) If by a court, by appropriate order or certificate.
13
14 SECTION 3. Arkansas Code � 9-9-208(d)(3), concerning when a parent
15 whose consent is required for adoption is not required to have limited,
16 independent legal representation, is amended to read as follows:
17 (3) This subsection shall not apply to an adoption if the
18 petitioner is:
19 (A) A stepparent whose spouse is a natural or adoptive
20 parent of the child to be adopted;
21 (B) Related to the child to be adopted within the second
22 third degree as defined in � 28-9-212; or
23 (C) Represented by an attorney pro bono in the adoption
24 proceeding.
25
26 SECTION 4. Arkansas Code � 28-65-101 is amended to read as follows:
27 28-65-101. Definitions.
28 As used in this chapter:
29 (1) "Emergency guardianship" means a short-term guardianship
30 that is:
31 (A) Granted by the court when there is an imminent danger
32 to the life, health, or property of an incapacitated person under � 28-65-
33 218(a); and
34 (B) In effect for no more than fourteen (14) continuous
35 calendar days;
36 (1)(2) "Essential requirements for health or safety" means the
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1 health care, food, shelter, clothing, and protection without which serious
2 illness or serious physical injury will occur;
3 (2)(3) "Evaluation" means a professional assessment of the
4 abilities of the respondent and the impact of any impairments on the
5 individual's capability to meet the essential requirements for his or her
6 health or safety or to manage his or her estate;
7 (3)(4) "Guardian" means one appointed by a court to have the
8 care and custody of the person or of the estate, or of both, of an
9 incapacitated person;
10 (4)(5) "Guardian ad litem" means one appointed by a court in
11 which a particular proceeding is pending to represent a ward or an unborn
12 person in that proceeding;
13 (6) "Guardianship" means a court-monitored case where a guardian
14 has authority and responsibility to take care of another person, another
15 person's property, or both another person and that person's property;
16 (5)(7)(A) "Incapacitated person" means a person who is impaired
17 by reason of a disability such as mental illness, mental deficiency, physical
18 illness, chronic use of drugs, or chronic intoxication, to the extent of
19 lacking sufficient understanding or capacity to make or communicate decisions
20 to meet the essential requirements for his or her health or safety or to
21 manage his or her estate.
22 (B) "Incapacitated person" includes an endangered adult or
23 impaired adult as defined in � 9-20-103, who is in the custody of the
24 Department of Human Services.
25 (C) Nothing in this chapter shall be construed to mean a
26 person is incapacitated for the sole reason he or she relies consistently on
27 treatment by spiritual means through prayer alone for healing in accordance
28 with his or her religious tradition and is being furnished such treatment;
29 (6)(8) "Least restrictive alternative" means the form of
30 assistance that least interferes with the legal capacity of the respondent to
31 act in his or her own behalf;
32 (7)(9) "Limited guardian" means one whose powers and authority
33 have been limited to the specific powers, authorities, and duties set forth
34 in the order of appointment;
35 (8) "Professional" means a physician, licensed psychologist, or
36 licensed certified social worker with training, experience, and knowledge of
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1 the particular alleged disability of the respondent;
2 (9)(10) "Relative" means the spouse, child, grandchild, parent,
3 grandparent, or sibling of a ward;
4 (10)(11) "Temporary guardian" means a guardian appointed pursuant
5 to under � 28-65-218(b); and
6 (11)(12) "Ward" means an incapacitated person for whom a guardian
7 has been appointed.
8
9 SECTION 5. Arkansas Code � 28-65-107(c), concerning jurisdiction in a
10 guardianship case when the subject of the guardianship is also the subject of
11 an open case under the Arkansas Juvenile Code of 1989, is amended to read as
12 follows:
13 (c)(1)(A) If a juvenile is the subject matter of an open case filed
14 under the Arkansas Juvenile Code of 1989, � 9-27-301 et seq., the
15 guardianship petition shall be filed in that case if the juvenile resides in
16 Arkansas.
17 (B) If a guardianship is granted in a juvenile case under
18 subdivision (c)(1)(A) of this section, the court shall order a court clerk to
19 accept a guardianship order with a probate style and new case number as the
20 initiating document for a probate guardianship case.
21 (2) If the juvenile resides out of state through the Interstate
22 Compact on the Placement of Children, � 9-29-201 et seq., the guardianship
23 petition may be filed in Arkansas or it may be filed in the state in which
24 the juvenile resides, subject to approval by the receiving state.
25 (3) The Department of Human Services may intervene as a matter
26 of right in a guardianship action at any time in an emergency or temporary
27 guardianship case before the entry of a permanent guardianship order if:
28 (A) A guardianship action is initiated for a child or
29 adult in the custody of the department, including a seventy-two-hour hold;
30 and
31 (B) The custody of the child or adult is granted to a
32 party seeking guardianship.
33
34 SECTION 6. Arkansas Code � 28-65-109 is amended to read as follows:
35 28-65-109. Actions by ward against guardian.
36 An action by a ward against his or her guardian for a settlement of his
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1 or her accounts, for additional security, or for his or her removal, must be
2 brought in the county in which the guardian was qualified shall be brought in
3 the court that has jurisdiction over the relevant guardianship case.
4
5 SECTION 7. Arkansas Code � 28-65-202(c)(1) and (2), concerning
6 improper venue in a guardianship case, are amended to read as follows:
7 (c)(1) If it appears to the court finds at any time before the
8 termination of the guardianship that the proceeding was commenced in a county
9 of improper venue, the court shall order the proceeding transferred to
10 another the circuit court with proper venue.
11 (2) If it appears the court finds that the residence of the ward
12 or of the guardian has been changed to another county or, in case of
13 guardianship of the estate, that a transfer would be for the best interest of
14 the ward and his or her estate, then the court in its discretion may order
15 the proceedings transferred to another the proper circuit court.
16
17 SECTION 8. Arkansas Code � 28-65-203(a)(1), concerning qualifications
18 for a natural person to be appointed guardian of the person and of the estate
19 of an incapacitated person, is amended to read as follows:
20 (a)(1) A natural person is qualified to be appointed guardian of the
21 person and of the estate of an incapacitated person if he or she is:
22 (A) A resident of this state;
23 (B) At least eighteen (18) years of age;
24 (C) Of sound mind; and
25 (D) Subject to the limitations in subdivision (a)(2) of
26 this section, either:
27 (i) Not a convicted and unpardoned felon; or
28 (ii) A convicted and unpardoned felon who has
29 disclosed his or her prior felony conviction and for whom the court has
30 entered written findings stating that, notwithstanding the felony conviction,
31 he or she is otherwise qualified after reviewing a certified copy of the
32 sentencing order or may request that the court take judicial notice of the
33 official sentencing order through the official online court records system
34 administered by the Administrative Office of the Courts.
35
36 SECTION 9. Arkansas Code � 28-65-203(f), concerning requirements for a
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1 nonresident natural person appointed as resident agent to accept service of
2 process in a guardianship matter, is amended to read as follows:
3 (f)(1) A nonresident natural person possessing the qualifications
4 enumerated in this section, except as to residence, who has appointed a
5 resident agent to accept service of process in any action or suit with
6 respect to the guardianship and has caused the appointment to be filed with
7 the court, whether or not he or she has been nominated by the will of the
8 last surviving parent of a minor resident of this state to be appointed as
9 guardian of the minor, is qualified for the appointment.
10 (2) However, unless nominated by will, bond may not be dispensed
11 with.
12
13 SECTION 10. Arkansas Code � 28-65-203(k) and (l)(1), concerning
14 circumstances in which a court may grant a guardianship of an adult in the
15 custody of the Department of Human Services and when a court may appoint a
16 guardian or permanent custodian of an adopted juvenile, are amended to read
17 as follows:
18 (k) A circuit court of this state shall not appoint a person or
19 institution as the permanent custodian or permanent guardian of the person or
20 estate of an adult in the custody of the department When an adult is in the
21 custody of the department, a circuit court shall not grant a full
22 guardianship of the adult unless:
23 (1) The department has evaluated the prospective guardian under
24 the department's authority under � 9-20-122 and promulgated department
25 policy; or
26 (2) The department has evaluated the prospective custodian under
27 the department's authority under � 9-20-122 and promulgated department
28 policy.
29 (l)(1) A circuit court of this state shall not appoint an unrelated
30 person, a related person that is not related within the fifth degree of
31 consanguinity, or an institution as a permanent custodian, or permanent
32 guardian more than a temporary guardianship of the person or estate of an
33 adopted juvenile unless at least twenty (20) days before the hearing the
34 prospective guardian files a written home study that has been conducted by a
35 licensed certified social worker.
36
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1 SECTION 11. Arkansas Code � 28-65-204(a), concerning the preference
2 for a parent of an unmarried minor to be appointed guardian of the person of
3 the unmarried minor, is amended to read as follows:
4 (a) The parents of an unmarried minor, or either of them, if qualified
5 and, in the opinion of the court, suitable, shall be preferred over all
6 others for appointment as guardian of the person Except in the case of an
7 emergency guardian or temporary guardianship, a guardianship of a minor child
8 that removes custody from a parent or prevents a parent from having custody
9 of the minor child shall not be granted over the objection of the parent
10 unless there is clear and convincing evidence that the parent is unfit to
11 care for the child given the circumstances.
12
13 SECTION 12. Arkansas Code � 28-65-205(b), concerning what shall be
14 included in a petition for a guardianship, is amended to read as follows:
15 (b) The petition shall state, insofar as can be ascertained:
16 (1) The name, age, residence, and post office address of the
17 incapacitated person;
18 (2) The nature of incapacity and purpose of the guardianship
19 sought in accordance with the classifications set forth in � 28-65-104;
20 (3) The approximate value and a description of the incapacitated
21 person's property, including any compensation, pension, insurance, or
22 allowance to which he or she may be entitled;
23 (4) Whether there is, in any state, a guardian of the person or
24 of the estate of the incompetent proposed ward;
25 (5) The residence and post office address of the person whom the
26 petitioner asks to be appointed guardian;
27 (6) The names and addresses, so far as known or can be
28 reasonably ascertained, of the persons most closely related to the
29 incapacitated person by blood or marriage;
30 (7) The name and address of the person or institution having the
31 care and custody of the incapacitated person;
32 (8) The names and addresses of wards for whom any natural person
33 whose appointment is sought is already guardian;
34 (9) The reasons why the appointment of a guardian is sought and
35 the interest of the petitioner in the appointment;
36 (10) A statement of the respondent's alleged disability;
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1 (11) A recommendation proposing the type, scope, and duration of
2 guardianship;
3 (12) A statement that any facility or agency from which the
4 respondent is receiving services has been will be properly notified of the
5 proceedings; and
6 (13) The names and addresses of likely witnesses others having
7 knowledge about the person's disability, property, or both.
8
9 SECTION 13. Arkansas Code � 28-65-206 is amended to read as follows:
10 28-65-206. Single guardianship for two or more incapacitated persons.
11 When an application is made for the appointment of a guardian for two
12 (2) or more incapacitated persons who are children of a common parent, or are
13 parent and child or are husband and wife, it shall not be necessary that a
14 separate petition, bond, or other paper be filed for each incompetent, and
15 the guardianship of all may be considered as one (1) proceeding except that
16 the guardian shall maintain and file separate accounts for the estates of
17 each of his or her wards the proposed wards.
18
19 SECTION 14. Arkansas Code � 28-65-207 is amended to read as follows:
20 28-65-207. Notice of hearing for appointment.
21 (a) Notice of the hearing for the appointment of a guardian need not
22 be given to any person:
23 (1) Who has signed the petition;
24 (2) Who has in writing waived notice of the hearing, except the
25 alleged incapacitated person proposed ward may not waive notice;
26 (3) Who actually appears at the hearing;
27 (4) Whose existence, relationship to the alleged incapacitated
28 person proposed ward, or whereabouts is unknown and cannot by the exercise of
29 reasonable diligence be ascertained;
30 (5) Other than the alleged incapacitated person proposed ward,
31 whom the court finds to be beyond the limits of the continental United States
32 or himself or herself incompetent incapacitated; or
33 (6) The alleged incapacitated person proposed ward if the court
34 finds that he or she is detained or confined by a foreign power or has
35 disappeared.
36 (b) Except as provided in subsection (a) of this section, before the
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1 court shall appoint a an emergency guardian, other than a temporary guardian,
2 notice of the hearing of the application for the appointment of the guardian
3 shall be served upon the following, if reasonably possible:
4 (1)(A) The alleged incapacitated person proposed ward, if over
5 fourteen (14) years of age or older, and the alleged incapacitated person
6 shall be notified of his or her rights under � 28-65-213. This notice shall
7 be served with the notice of hearing.
8 (B) The proposed ward shall be notified of his or her due
9 process rights under � 28-65-213.
10 (C)(i) If the purpose of the action is to establish an
11 adult guardianship, the proposed ward shall also be served with his or her
12 notice of the Ward's Bill of Rights in accordance with � 28-65-106(b).
13 (ii) The notices described under this subdivision
14 (b)(1) shall be served with the notice of hearing;
15 (2) The legal parents of the alleged incapacitated person
16 proposed ward, if the alleged incapacitated person is a minor;
17 (3) The spouse, if any, of the alleged incapacitated person
18 proposed ward;
19 (4) Any other person who is the guardian of the person or of the
20 estate of the alleged incapacitated person proposed ward, or any other person
21 who has the care and custody of the alleged incapacitated person proposed
22 ward, and the director of any agency from which the respondent is receiving
23 services;
24 (5) The Department of Human Services when the petition seeks
25 appointment of a guardian who, at the time the petition is filed, serves as
26 guardian of five (5) or more minor wards;
27 (6) If there is neither a known parent nor known spouse, at
28 least one (1) of the nearest competent relatives by blood or marriage of the
29 alleged incapacitated person proposed ward; and
30 (7) If Any other person or entity directed by the court:
31 (A) Any department, bureau, agency, or political
32 subdivision of the United States or of this state which makes or awards
33 compensation, pension, insurance, or other allowance for the benefit of the
34 ward or his or her estate;
35 (B) Any department, bureau, agency, or political
36 subdivision of the United States or of this state or any charitable
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1 organization, which may be charged with the supervision, control, or custody
2 of the incompetent person; or
3 (C) Any other person designated by the court.
4 (c)(1)(A) If the incapacitated person proposed ward is over fourteen
5 (14) years of age or older, there shall be personal service upon him or her
6 if personal service can be had is reasonably possible.
7 (B) Service on others may be had in any manner provided by
8 � 28-1-112(b) or � 28-1-112(e).
9 (2) The court, for good cause shown, may reduce the number of
10 days of notice, but in every case at least twenty (20) days' notice shall be
11 given.
12 (3) It shall not be necessary that the person for whom
13 guardianship is sought proposed ward be represented by a guardian ad litem in
14 the proceedings.
15
16 SECTION 15. Arkansas Code � 28-65-208 is amended to read as follows:
17 28-65-208. Notice of other hearings.
18 Whenever notice of a hearing in a guardianship proceeding is required,
19 the notice shall be served upon the following who do not appear or in writing
20 waive notice of hearing:
21 (1) The guardian of the person;
22 (2) The guardian of the estate; and
23 (3) If directed by the court:
24 (A) Any department, bureau, agency, or political
25 subdivision of the United States or of this state which makes or awards
26 compensation, pension, insurance, or other allowance for the benefit of the
27 ward's estate;
28 (B) Any department, bureau, agency, or political
29 subdivision of the United States or of this state or any charitable
30 organization, which may be charged with the supervision, control, or custody
31 of the incapacitated person; or
32 (C) Any other person or entity whom the court may
33 designate.
34
35 SECTION 16. Arkansas Code � 28-65-209 is amended to read as follows:
36 28-65-209. Request for special notice of hearings.
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1 (a)(1) At any time after the issuance of letters of guardianship, any
2 department, bureau, agency, or political subdivision of the United States or
3 of this state which makes or awards compensation, pension, insurance, or
4 other allowance for the benefit of the ward's estate; or any department,
5 bureau, agency, or political subdivision of the United States or of this
6 state, or any charitable organization, which may be charged with the
7 supervision, control, or custody of the incapacitated person; or an
8 interested person may serve, in person or by attorney, upon the guardian or
9 upon his or her attorney and file with the clerk of the court where the
10 proceedings are pending, with a written admission or proof of service, a
11 written request stating that he or she desires written notice of all hearings
12 on petitions for: Any person or organization with an interest in a
13 guardianship proceeding may send a request to the guardian and file a copy of
14 the request with the county clerk under the proper case name and case number
15 to be notified of hearings in any guardianship matter.
16 (A) The settlements of accounts;
17 (B) The sale, mortgage, lease, or exchange of any property
18 of the estate;
19 (C) An allowance of any nature payable from the ward's
20 estate;
21 (D) The investment of funds of the estate;
22 (E) The removal, suspension, or discharge of the guardian
23 or final termination of the guardianship; and
24 (F) Any other matter affecting the welfare or care of the
25 incapacitated person and his or her property.
26 (2) The applicant for such a notice must include in his or her
27 written request his or her post office address or that of his or her attorney
28 The notice shall include an email address or a physical mailing address where
29 the notice may be delivered.
30 (3) Timely delivery via email or regular mail under subdivision
31 (a)(2) of this section shall constitute proper notice by the person required
32 to provide notice.
33 (b) Unless the court otherwise directs, upon filing the request, the
34 person shall be entitled to notice of all such hearings or of such of them as
35 he or she designates in his or her request the specific types of hearings
36 requested.
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1
2 SECTION 17. Arkansas Code � 28-65-210 is amended to read as follows:
3 28-65-210. Proof required for appointment of guardian.
4 Before appointing a guardian, the court must be satisfied shall find by
5 clear and convincing evidence that:
6 (1) The person proposed ward for whom a guardian is prayed is
7 either a minor or otherwise incapacitated;
8 (2) A guardianship is desirable necessary to protect the
9 interests of the incapacitated person proposed ward; and
10 (3) The person to be appointed guardian is qualified and
11 suitable to act as such.
12
13 SECTION 18. Arkansas Code � 28-65-211 is amended to read as follows:
14 28-65-211. Determination of incapacity -- Evidence required.
15 (a) The fact of minority, disappearance, or detention, or confinement
16 by a foreign power shall be established by satisfactory clear and convincing
17 evidence.
18 (b)(1) In determining the incapacity of a person for whom a guardian
19 is sought to be appointed for cause other than minority, disappearance, or
20 detention, or confinement by a foreign power, the court shall require that
21 the evidence of incapacity include the oral testimony or sworn written
22 statement of one (1) or more qualified professionals, whose qualifications
23 shall be set forth in their testimony or written statements.
24 (2) If the alleged incapacitated person proposed ward is
25 confined or undergoing treatment in an institution for the treatment of
26 mental or nervous diseases a mental health facility or in a hospital or penal
27 institution, one (1) of the professionals shall be a member of the medical
28 staff of that hospital or institution facility.
29 (3) The court, in its discretion, may require the presence
30 before it of the person of the alleged incapacitated person.
31 (4) The court shall fix the fees to be paid to such examiners,
32 which shall be charged as part of the costs of the proceeding.
33 (c) The costs of the proceeding shall be paid by the petitioner, who
34 shall may be reimbursed therefor out of the estate of the incapacitated
35 person proposed ward, if a guardian is appointed.
36
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1 SECTION 19. Arkansas Code � 28-65-212 is amended to read as follows:
2 28-65-212. Evaluations.
3 (a)(1) A professional evaluation shall be performed prior to the court
4 hearing on any petition for an adult guardianship except when appointment is
5 being made: because
6 (A) Because of minority, disappearance, detention, or
7 confinement by a foreign power or pursuant to � 28-65-218; or
8 (B)(i) In a temporary guardianship hearing when the
9 proposed temporary guardian has been unable to obtain the necessary
10 evaluation despite reasonable efforts.
11 (ii) If a temporary guardianship must be granted in
12 the absence of an evaluation to protect the proposed ward or the ward's
13 property, the court shall immediately order an evaluation and set a second
14 temporary hearing with the benefit of the evaluation as soon as is practical,
15 but no later than thirty (30) days from the date of the first temporary
16 hearing.
17 (2) The evaluation shall be performed by a professional or
18 professionals with expertise appropriate for the respondent's alleged
19 incapacity physician, licensed psychologist, or licensed certified social
20 worker with training, experience, and knowledge of the particular alleged
21 disability of the respondent.
22 (b) The evaluation shall include the following:
23 (1) The respondent's medical and physical condition;
24 (2) His or her adaptive behavior;
25 (3) His or her intellectual functioning; and
26 (4) Recommendation as to the specific areas for which assistance
27 is needed and the least restrictive alternatives available.
28 (c)(1) If no professional evaluations performed within the last six
29 (6) months are available, the court will order an independent evaluation.
30 (2)(A) If the petition is granted, the cost of the independent
31 evaluation will be borne by the estate of the incapacitated person.
32 (B) In the event the petition is denied, the costs will be
33 borne by the petitioner unless otherwise ordered by the court for good cause
34 shown.
35 (d)(1) The Department of Human Services shall not be ordered by any
36 court, except the juvenile division of the circuit court, to gather records,
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1 investigate the respondent's proposed ward's condition, or help arrange for
2 appropriate professional evaluations, unless the court has first determined
3 all parties to the proceeding to be indigent and assistance provided by the
4 department is limited to actions within the State of Arkansas.
5 (2) The department shall issue rules to implement this
6 provision.
7 (e) Any existing evaluations made by the department of which the court
8 has notice must be considered by the court.
9
10 SECTION 20. Arkansas Code � 28-65-213 is amended to read as follows:
11 28-65-213. Rights Due process rights of wards and proposed wards.
12 (a) At the any hearing, the respondent ward or proposed ward shall
13 have the right to:
14 (1) Be represented by counsel;
15 (2) Present evidence on his or her own behalf;
16 (3) Cross-examine adverse witnesses;
17 (4)(A) Be present.
18 (B)(i) The petitioner or person with physical custody of
19 the respondent ward or proposed ward shall make reasonable efforts to ensure
20 that the respondent ward or proposed ward is present or otherwise able to
21 participate electronically for all hearings.
22 (ii) If the respondent ward or proposed ward is not
23 present at a hearing, the court shall:
24 (a) Inquire first as to the reasons for the
25 absence of the respondent ward or proposed ward; and
26 (b) Proceed after being satisfied in the
27 respondent ward's or proposed ward's absence only if presented with clear and
28 convincing evidence that it is not safe, appropriate, or possible for the
29 respondent ward or proposed ward to be present or otherwise participate
30 electronically; and
31 (5) Require the attendance by subpoena of one (1) or more of the
32 professionals who prepared the evaluation.
33 (b) The burden of proof by clear and convincing evidence is upon the
34 petitioner, and a determination of incapacity shall be made before
35 consideration of a proper disposition.
36 (c)(1) If the respondent ward or proposed ward is found to be
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1 incapacitated, the court shall determine the extent of the incapacity and the
2 feasibility of less restrictive alternatives to guardianship to meet the
3 needs of the respondent.
4 (2) If it is found that alternatives to guardianship are
5 feasible and adequate to meet the needs of the respondent ward or proposed
6 ward, the court may dismiss the action.
7 (3) If it is found that the respondent ward or proposed ward is
8 substantially without capacity to care for himself or herself or his or her
9 estate, a guardian for the person or estate, or both, shall be appointed.
10
11 SECTION 21. Arkansas Code � 28-65-214(c), concerning what an order
12 granting a guardianship shall specify, is amended to read as follows:
13 (c) The order shall specify the nature of the guardianship and the
14 amount of the bond to be given, if any.
15
16 SECTION 22. Arkansas Code � 28-65-215 is amended to read as follows:
17 28-65-215. Bond of guardian.
18 (a) If the guardianship is to be of the person only, the amount of the
19 bond shall not exceed one thousand dollars ($1,000), or the court may
20 dispense with the bond.
21 (b) At every accounting, the court shall inquire into the sufficiency
22 of the bond and of the sureties, and, if either or both are found
23 insufficient, the guardian shall be ordered to file a new or additional bond.
24 (c) If, by the terms of a will, the testator expresses the wish that
25 no bond be required of the person whom he or she requests to be appointed
26 guardian, that person may be relieved of giving a bond with respect to
27 property given by the will to the incapacitated person.
28 (d) Section The procedures described in � 28-48-201 et seq., with
29 respect to the bonds of personal representatives, shall be applicable to the
30 bonds of guardians, except that in fixing the amount of the guardian's bond,
31 the value of the real property, as distinguished from the income arising
32 therefrom, unless it is sold, shall not be taken into consideration and shall
33 not constitute property which may reasonably be expected to pass through the
34 hands of the guardian.
35 (e) Further, when the ward's estate is all in cash, the court may
36 dispense with the bond if the guardian deposits the entire estate on interest
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1 in a bank in Arkansas insured by the Federal Deposit Insurance Corporation or
2 in a savings and loan association in Arkansas insured by the Federal Savings
3 and Loan Insurance Corporation or in a credit union in Arkansas insured by
4 the National Credit Union Administration and the value of the estate is not
5 greater than the amount of the maximum insurance provided by law for a single
6 depositor, and the bank or savings and loan association shall file with the
7 probate clerk of the circuit court an agreement not to permit any withdrawal
8 from the deposit except on authority of a circuit court order.
9
10 SECTION 23. Arkansas Code � 28-65-218 is amended to read as follows:
11 28-65-218. Emergency and temporary guardianships.
12 (a)(1)(A) If upon presentation of an emergency ex parte motion
13 accompanied by an affidavit or verified petition giving rise to specific
14 facts in appropriate detail the court finds that there is imminent danger to
15 the life or health of an incapacitated person or of loss, damage, or waste to
16 the property of an incapacitated person and that this requires the immediate
17 appointment of a guardian of his or her person or estate, or both, the court
18 shall issue an order appointing an emergency temporary guardian.
19 (B)(i) An ex parte emergency guardianship order shall
20 include a date and time certain, not to exceed fourteen (14) days from the
21 date on which the order is entered, for a hearing reviewing the allegations
22 in the emergency ex parte motion and consideration on whether a temporary
23 guardianship shall be granted.
24 (ii) Notice of the emergency order shall consist of
25 a copy of the petition for emergency guardianship, any accompanying documents
26 to the petition for emergency guardianship, and a copy of the emergency
27 guardianship order.
28 (iii) The notice under subdivision (a)(1)(B)(ii) of
29 this section shall be served immediately upon the necessary parties under �
30 28-65-207 with notice of the emergency review hearing or temporary hearing.
31 (C)(b)(1) The court may consider a petition for a temporary
32 guardianship at a hearing that was conducted following proper notice under �
33 28-65-207 regardless of whether an emergency guardianship has been requested.
34 (2) If the court finds clear and convincing evidence that a
35 temporary guardianship is necessary and appropriate to protect the ward or
36 the property of the ward after the hearing required under subdivision
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1 (a)(1)(B) or subdivision (b)(1) of this section or after a written agreement
2 or agreement in court by the necessary parties, the court may enter an order
3 granting temporary guardianship for a period of up to ninety (90) days from
4 the date of the emergency hearing.
5 (2)(3)(A) If the incapacitated person is an adult, the period
6 for the appointment of a temporary guardian shall not exceed ninety (90)
7 days.
8 (B) If the incapacitated person is a minor, on or before
9 the expiration of the ninety-day period and after a hearing on the merits or
10 an agreement by the necessary parties, the court may extend the temporary
11 guardianship for up to an additional one hundred eighty (180) days.
12 (3)(c)(1) Notice of the emergency hearing shall be given before the
13 hearing as required by subsections (b)-(d) of this section. However, notice
14 is not required with respect to a person whose whereabouts are unknown or
15 cannot by the exercise of reasonable diligence be ascertained If the
16 petitioner is unable to serve a necessary party who is entitled to notice of
17 an emergency hearing under subdivision (a)(1)(B) of this section, a hearing
18 regarding a petition for temporary guardianship under subdivision (b)(1) of
19 this section, or both, despite reasonable efforts, and a temporary
20 guardianship is granted, the petitioner shall make further reasonable efforts
21 to serve the necessary party with a copy of the pleadings and a copy of the
22 temporary guardianship order that includes notice of the right to request a
23 review hearing described in subdivision (c)(2) of this section.
24 (2)(A) A necessary party who was not timely served before the
25 temporary hearing may request a review hearing of the temporary order.
26 (B) If a review hearing is requested under subdivision
27 (c)(2)(A) of this section, the court shall schedule the review hearing as
28 soon as is reasonably possible for consideration on whether the temporary
29 order should be amended, ended, or continued in the same form.
30 (b) Immediate notice of the temporary guardianship order shall be
31 served by the petitioner upon the following:
32 (1) The ward, if the ward is at least fifteen (15) years of age;
33 (2) The parents of the ward, if the ward is a minor;
34 (3) The spouse, if any, of the ward;
35 (4) Any other person who is the guardian of the person or of the
36 estate of the ward, or any other person who has been the primary caregiver of
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1 the ward;
2 (5) The Department of Human Services when the temporary guardian
3 appointed serves as guardian of five (5) or more wards;
4 (6) If there is neither a known parent nor known spouse, at
5 least one (1) of the nearest competent relatives by blood or marriage of the
6 ward, if known; and
7 (7) If directed by the court:
8 (A) Any department, bureau, agency, or political
9 subdivision of the United States or of this state which makes or awards
10 compensation, pension, insurance, or other allowance for the benefit of the
11 ward or his or her estate;
12 (B) Any department, bureau, agency, or political
13 subdivision of the United States or of this state or any charitable
14 organization, which may be charged with the supervision, control, or custody
15 of the incompetent; or
16 (C) Any other person designated by the court.
17 (c) The notice shall include:
18 (1) A copy of the petition;
19 (2) A copy of the temporary order and order of appointment;
20 (3) Notice of a hearing date; and
21 (4) A statement of rights of the proposed ward as provided in �
22 28-65-207(b) and � 28-65-213.
23 (d) If the proposed ward is at least fifteen (15) years of age, there
24 shall be personal service upon him or her if personal service can be had.
25 Service on others shall be according to the Arkansas Rules of Civil Procedure
26 or as otherwise provided by the court.
27 (e) Notice need not be given to any person listed in � 28-65-
28 207(a)(1)-(6).
29 (f) Within fourteen (14) days of the entry of the temporary
30 guardianship order, a full hearing on the merits shall be held.
31 (g)(1) If the petitioner is unable to serve a person entitled to
32 notice under this section despite reasonable efforts, the petitioner shall
33 make further reasonable efforts after the full hearing on the merits to serve
34 the person with a copy of the original pleadings and a copy of the temporary
35 guardianship order.
36 (2) The respondent may request a subsequent review hearing
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1 before the court that shall be scheduled as soon as reasonably possible.
2 (h)(d) The temporary guardian shall make such reports as the court
3 shall direct.
4 (i)(e) In all other respects, the provisions of this chapter
5 concerning guardians shall apply to temporary guardians, and an appeal may be
6 taken from the order of appointment of a temporary guardian.
7 (j)(f) The letters issued to a temporary guardian shall state the date
8 of expiration of the authority of the temporary guardian.
9
10 SECTION 24. Arkansas Code � 28-65-221 is repealed.
11 28-65-221. Standby guardians.
12 (a) Without surrendering parental rights, any parent who is
13 chronically ill or near death may have a standby guardian appointed by the
14 court for the parent's minor children using the same procedures outlined in
15 this subchapter to establish a guardianship. The standby guardian's authority
16 would take effect as outlined in an order of standby guardianship, upon:
17 (1) The death of the parent;
18 (2) The mental incapacity of the parent; or
19 (3) The physical debilitation and consent of the parent.
20 (b)(1) The standby guardian shall immediately notify the court upon
21 the death, incapacity, or debilitation of the parent and shall immediately
22 assume the role of guardian of the minor children.
23 (2) The court shall enter an order of guardianship in
24 conformance with this section.
25
26 SECTION 25. Arkansas Code � 28-65-222 is amended to read as follows:
27 28-65-222. Parental appointment nomination of temporary guardian in
28 event of his or her death.
29 (a)(1) Except as provided in � 28-65-218 and in subdivision (a)(2) of
30 this section, a parent of a minor child may appoint one (1) or more persons
31 to act as a temporary guardian of his or her minor child in the event of the
32 death of the parent if the:
33 (A) Parent signs a notarized writing that includes the:
34 (i) Name and date of birth of the minor child for
35 whom the person is being appointed as guardian;
36 (ii) Name of each person being appointed as a
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1 guardian of the minor child; and
2 (iii) Sworn attestation of two (2) witnesses that
3 states and affirms that each witness witnessed the parent sign the notarized
4 writing;
5 (B) Notarized writing signed by the parent as required
6 under subdivision (a)(1)(A) of this section is no more than five (5) years
7 old; and
8 (C) Each person appointed by the parent as a guardian of
9 the minor child consents to the appointment in a signed and notarized
10 writing.
11 (2) An appointing parent may appoint two (2) people as co-
12 guardians of the minor child if the two (2) people are married to each other.
13 (3) Both parents of the minor child shall sign the notarized
14 writing required under subdivision (a)(1)(A) of this section if both parents
15 are alive.
16 (4) A parent may revoke or amend his or her appointment of a
17 guardian under this section at any time before his or her death.
18 (b)(1) An appointment of a guardian for a minor child under this
19 section is immediately effective upon the death of:
20 (A) The appointing parent if the other parent is deceased;
21 or
22 (B) Both appointing parents.
23 (2)(A) Upon the death of both appointing parents or an
24 appointing parent if the other parent is deceased, the guardian shall have
25 temporary guardianship of the minor child for no longer than forty-five (45)
26 days.
27 (B) A court may extend the time period of the initial
28 temporary guardianship for an additional ninety (90) days or terminate the
29 temporary guardianship for good cause.
30 (c) A person who is appointed by an appointing parent as a temporary
31 guardian of a minor child under this section and who is willing to become the
32 permanent guardian of the minor child shall follow the procedures required
33 under this chapter to obtain permanent guardianship of the minor child.
34 (d) Unless otherwise provided by law, a court shall comply with the
35 wishes of an appointing parent and appoint each person appointed by the
36 appointing parent as temporary guardian of the appointing parent's minor
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1 child as a permanent guardian of the minor child unless the person appointed
2 as guardian is determined to be unfit by the court.
3 (e) A notarized writing required under subdivision (a)(1)(A) of this
4 section does not supersede a court order concerning child custody that exists
5 at the time of the death of one (1) or both parents.
6 (a) A parent of a minor child may nominate a person to be the guardian
7 of the minor child in the event of the death of the parent during the child's
8 minority.
9 (b)(1) If a parent of a minor child has nominated a person to be the
10 guardian of the minor child under subsection (a) of this section but another
11 legal parent is alive and fit, the court shall give the living legal parent
12 first consideration.
13 (2) If subdivision (b)(1) of this section does not apply and the
14 court finds the proof of nomination under subsection (a) of this section to
15 be clear and convincing, the court shall give first consideration of the
16 deceased parent's nomination under subsection (a) of this section.
17
18 SECTION 26. Arkansas Code � 28-65-401(b), concerning when a
19 guardianship may be terminated by the court, is amended to read as follows:
20 (b) A guardianship may be terminated by court order after such notice
21 as the court may require:
22 (1)(A) If the guardianship was solely because of the ward's
23 minority, and either the ward attains his or her majority or the disability
24 of minority of the ward is removed for all purposes by a court of competent
25 jurisdiction.
26 (B)(i) However, if the court finds upon a proper showing
27 by substantial competent clear and convincing evidence after a hearing that
28 it is in the best interest of the ward that the guardianship be continued
29 after the ward reaches majority, the court may order the guardianship to
30 continue until such time as it may be terminated by order of the court;.
31 (ii) The provisions of the Ward's Bill of Rights
32 described in � 28-65-106 shall apply to the hearing under subdivision
33 (b)(1)(B)(i) of this section; or
34 (2) If the ward becomes a nonresident of this state; or
35 (3) If, for any other reason, the guardianship is:
36 (A) No longer necessary; and
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1 (B) No longer in the best interest of the ward.
2
3 SECTION 27. Arkansas Code � 28-65-402 is amended to read as follows:
4 28-65-402. Restoration of capacity of ward.
5 (a) If any person alleges in writing, verified by oath, that any
6 person declared to be incapacitated, or addicted to habitual drunkenness, is
7 no longer incapacitated, or is no longer so addicted, the court in which the
8 proceedings were held shall cause the facts to be inquired into in such
9 manner as it may direct Upon the petition of the ward or an interested party
10 alleging that the ward is no longer incapacitated or is less incapacitated
11 than would require a full guardianship, the court shall:
12 (1) Conduct a hearing after the petitioner provides proper
13 notice under this chapter to all relevant parties to determine whether the
14 guardianship should be terminated or amended; and
15 (2) Make orders as necessary after the hearing under subdivision
16 (1) is held.
17 (b) If it is found that the person has been restored to capacity or
18 has reformed, he or she shall be discharged from care and custody, and the
19 guardian shall immediately settle his or her accounts and shall restore to
20 the person all things remaining in the guardian's hands belonging or
21 appertaining to him or her.
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23 03/18/2025 2:19:29 PM LJH251Every fact on this page links to its source, starting with the official bill record.