As per § 28-65-221(a) of the Arkansas Code, any parent who is terminally ill or near death can have a standby guardian appointed by the court for their children. On getting such a request from a parent, the court will follow the prescribed procedure for appointment of the guardian. The major factor considered by the court before appointment of a guardian is to look into the suitability as well as the willingness of the person to serve as guardian. For the purpose of looking into suitability and willingness, the court will take into account-
- Any request contained in a will or other written instrument executed by the parent.
- Any request for the appointment of a person as his/her guardian made by a minor aged 14 years or older.
Generally, the condition upon which the standby guardian’s authority will take effect is outlined in the order of standby guardianship made by the court. This includes-
- The death of the parent
- The mental incapacity of the parent
- The physical debilitation and consent of the parent
Before assuming the role of standby guardian, the person concerned should inform the court. Therefore upon the death, incapacity, or debilitation of the parent, the guardian should immediately notify the court. Thereafter, the guardian should assume the role of guardian of the minor children. The court shall thereon enter an order of guardianship in accordance with law.
In spite of appointment of the guardian, the legal position of the parent is clear. Even in case of appointment of the guardian, the parent does not surrender parental rights over the child to the standby guardian.
The law also lays down the conditions upon which a standby guardianship comes to an end. Standby guardianship is terminated upon the minor’s death, adoption, emancipation, attainment of majority, or in some circumstances by order of the court.