1. (a) General.

   1. (1) When a child with a disability reaches the age of majority under state law that applies to all students (age eighteen (18) in Arkansas), except for a student with a disability who has been determined to be incompetent or incapacitated under state law:

      1. (A) The public agency must provide any notice required by Part B of the Individuals with Disabilities Education Act and this part to both the child and the parents;
      2. (B) All other rights accorded to parents under Part B of the Individuals with Disabilities Education Act and this part transfer to the child;
      3. (C) All rights accorded to parents under Part B of the Individuals with Disabilities Education Act and this part transfer to children who are incarcerated in an adult or juvenile, state or local correctional institution; and
      4. (D)

2. (i) Whenever a state provides for the transfer of rights under this part pursuant to subdivisions (a)(1)(A) and (a)(1)(B) of this section, the agency must notify the child and the parent of the transfer of rights.

   1. (ii) See form: Letter of Notification of Transfer of Rights.
   2. (2) The LEA must use the procedures established by the state for appointing the parent of a child with a disability or, if the parent is not available, another appropriate individual to represent the educational interest of the child throughout the period of the child’s eligibility under Part B of the Individuals with Disabilities Education Act if, under state law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.

3. (b) Legal guardianship.

   1. (1) In accordance with Arkansas Code § 28-65-101 et seq., and § 28-65-201 et seq., any person may file a petition for the appointment of himself or herself or some other qualified person as guardian of an incapacitated person.
   2. (2) Arkansas Code § 28-65-101(5)(A) defines an “incapacitated person” to mean a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate.
   3. (3) Arkansas Code § 28-65-101(3) defines a “guardian” as one appointed by a court to have care and custody of the person or of the estate, or of both, of an incapacitated person.

   4. (4) Jurisdiction of courts.

      1. (A)

         1. (i) The jurisdiction of the circuit courts over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal.
         2. (ii) Arkansas Code § 28-65-107(a).
      2. (B) If a juvenile is the subject matter of an open case filed under the Arkansas Juvenile Code of 1989, Arkansas Code § 9-27-301 et seq., the guardianship petition shall be filed in that case if the juvenile resides in Arkansas.
   5. (5) Rights of incapacitated persons. An incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except those which have been expressly limited by court order or have been specifically granted by order to the guardian by the court.

Codification Notes: The Individuals with Disabilities Education Act is codified at 20 U.S.C. § 1400 et seq.