By choosing to be a guardian for a minor, you are trying to care for another person. Please note that you are not trying to gain custody, which has a different meaning. Custody is something that gets discussed at length in family law:
- Legal custody
- Physical custody
When two parents end their marriage, legal and physical custody must be determined—either by the parents or by the court. Legal custody centers on decision-making for these areas: medical, educational, and religion. With joint custody, both people have an equal say. Physical custody speaks to where the child lives.
Guardianship is the court’s acknowledgment that someone cannot live on their own. The term “incapacity” is used in connection with guardianships, and it applies to adults and children. Here are some reasons why an adult would be considered incapacitated:
- Mental illness (i.e., Alzheimer’s)
- Addiction to drugs and/or alcohol
When someone cannot care for themselves, the court can appoint a guardian. The person who needs a guardian is a ward.
Filing For Guardianship
Before you file and commit to becoming someone’s guardian, ensure that you shouldn’t be seeking custody. A qualified family law attorney can hear the specifics of your unique circumstances. Then he can advise you as to which you should pursue and why.
You cannot submit a petition for guardianship until incapacity has been established. Focus on these factors: safety, health, and financial. Until the court sees the need and orders a guardianship for the ward, you can’t file.
If you live in a separate part of Arkansas than the ward, file the petition for guardianship in the county where he or she lives. The person who you are seeking guardianship for has rights. And it is essential to remember that. He or she has to receive this notification. It should include his or her rights (in connection to the hearing) and the date of the hearing.
The court needs a professional to evaluate the ward to determine incapacity. Who will conduct it? It depends on why you are filing. If you seek guardianship for someone with dementia, a physician would likely confirm this.
Has the ward been evaluated within six months of the hearing? If so, that report can be sent to the court.
As confident as you may be about guardianship being the right solution, that does not mean he or she will feel the same way. During the hearing, wards can have an attorney, submit evidence, and question witnesses. They may challenge the validity of the evaluation mentioned above. Their witness could dispute it as well.
Ultimately, a judge determines if guardianship is or is not required. Or a judge could recommend a different course of action.
OMG Law Firm
If you seek guardianship or custody, contact the OMG Law Firm to schedule a consultation. Our family law attorneys are driven by their desire to help people like you. When you are in the middle of a serious legal matter, there is no better partner than an attorney from OMG Law Firm.