Grandparents and Grandchildren: When is a guardianship an option?

Today, more often than ever, grandparents are finding themselves in the difficult position of providing the primary care and support for their grandchildren. Grandparents in Arkansas and nationwide become parenting-grandparents for a variety of reasons, many of which have caused problems for their families for years. For instance, many grandparents start off trying help their own children who have become parents at a young age. Teenagers and young adults who become pregnant often need a great deal of support in order to complete their education, learn how to parent care for an infant, and enter the workforce. Unfortunately, many of these same teens and young adults struggle with alcohol or drug usage and addiction, as well as physical, emotional, or mental abuse. Many parents feel helpless as they watch their 16, 17, or 18 year old child become a parent themselves, while continuing to use illegal drugs and dealing with a boyfriend or girlfriend with similar problems. Grandparents often provide the majority of the financial support for both the young parent and infant. These grandparents may initially be treated as the all-time babysitter at night or on the weekends, but often become the primary caregivers over time as the young parent(s) struggle to fully commit to their child. Sometimes, a young parent who has given over the reigns for a period of time suddenly wants to take back control of the parenting. These situations are often precipitated by clashes between the grandparent and young parent or the young parent’s romantic involvement with a new person. For many grandparents in these or similar situations, the straw that breaks the camel’s back comes when the grandparents witness – firsthand – the negative effects on their young grandchildren. In any case, it is at this point, if not before, that many grandparents seek legal advice on what they can do to protect their young grandchild. In Arkansas, one option for grandparents is to seek guardianship of their grandchild. Guardianship is different from other child custody proceedings in that it is technically a “probate” proceeding and is often a more viable alternative for grandparents. All things considered, grandparents have a difficult, if not impossible, time obtaining “custody” or “grandparent visitation rights” in the context of divorce or custody proceedings involving the biological parents. However, if a child’s biological parents are not able to provide for the basic care and support of their child, a grandparent may be the preferred caregiver as legal guardian. Guardianship can be obtained in emergency situations in which there is an immediate threat to the health and welfare of their grandchild. If an emergency guardianship is ordered, the biological parents (and perhaps other blood-relatives) have a legal right to be heard. Therefore, if an emergency guardianship is opened by the Judge, a temporary hearing must be held within three business days. If no emergency exists, guardianship may be obtained by filing a petition for guardianship and scheduling a hearing to determine whether guardianship is in the best interest of the child. For many grandparents, obtaining guardianship of their grandchild(ren) is a reasonable way to provide a safe and stable home. The attorneys at Keith, Miller, Butler, Schneider & Pawlik are experienced in dealing with guardianships of children, adults, and estates. If you have guardianship questions, please give us a call today. Frequently Asked Guardianship Questions: What is a guardian? A guardian is a person appointed by a probate or juvenile court to be legally responsible for another person and/or for another person’s property. While individuals are usually appointed to serve as guardians, a corporation or association may also serve in that capacity. A person for whom a guardian has been appointed is called a “ward” or “protected person.” Why are guardians appointed? A guardian is appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor (under 18 years of age) or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental incapacity or disability. A guardianship may be voluntary, which means the guardian is appointed at the request of the ward, or it may be involuntary if family members or others ask the court to act to protect someone who appears to be incompetent. Once appointed, a guardian is answerable to the court for providing proper care and management of the ward’s affairs in the ward’s best interest. What are the general powers and duties of a guardian? The control that a guardian has over a ward is limited to the authority granted by Arkansas statutes, decisions of Arkansas courts, and orders and rules of the probate or juvenile court. All guardians must obey the orders and judgments of the court by which they were appointed. The court may confer broad and far-reaching powers on a guardian, or it may limit or deny any power granted under Arkansas statutes or case law. Arkansas law provides for different types of guardianships, some of which are listed below. What are the types of guardianships? A “guardian of the person” is appointed to protect and have physical custody of a ward and to provide for the ward’s day-to-day maintenance, paid from the ward’s assets. Maintenance means providing food, shelter, clothing, health care and other necessities. It includes responsibility for the education of a minor ward as required by law, and making decisions about medical treatment and other professional services the ward may require. Only a “natural person” (not a bank or a company) can be appointed as a guardian of the person. A “guardian of the estate” is appointed to manage the property and financial assets of the ward for the ward’s best interests. Specifically, the guardian of the estate must:

• pay all debts owed by the ward

• collect all money owed to the ward

• settle and adjust any assets received from an estate

• deposit all funds into an account in the name of the guardian as fiduciary

• protect, preserve and invest the ward’s funds not needed for current obligations according to legal guidelines

• file or defend lawsuits on behalf of the ward to protect his or her interests

• file an inventory and file accounts of the ward’s estate with the court every two years;

• seek court approval for expenditures or transfers;

• file income tax returns and pay taxes for the ward.

Unless the court order appointing a guardian specifies otherwise, the same person is normally named as both guardian of the person and the estate. A “limited guardian” is a guardian whose powers are specifically limited by the court. If there is no limitation, the ward has no legal capacity to act and can only legally act through the guardian. A ward for whom a limited guardian has been appointed retains all rights in all areas not covered by the Order of Limited Guardianship. A “temporary or emergency guardian” is a guardian appointed by the court without a formal hearing when an emergency exists for a specified period not to exceed ninety (90) days. The court must find that the immediate appointment of a guardian is necessary to prevent injury to the person or estate of the ward.