What is a Legal Guardianship?
Legal guardianship refers to the legal authority granted to an adult to care for the personal and/or financial interests of a minor child or an incapacitated adult. In many states, the court assigns a guardian when a child is orphaned, either due to death or the termination of parental rights, or when a legally incompetent person can no longer manage their own affairs. In these cases, the guardian stands in the shoes of the parents or the incompetent individual and is responsible for their well-being.
A legal guardian cannot be selected by the principal. Rather, the appointment of a guardian to make decisions on behalf of the principal must be approved by the court . In appointing a guardian, a judge may also limit the guardian’s decision-making authority, granting either limited or broad powers in the areas of health care, financial management, and estate management. A limited guardian has only the authority granted by the court, while the authority of a general guardian is similar to that of a parent.
Many people can serve as a child’s guardian, including relatives, family friends, caretakers, and corporate entities. However, when the court assigns a guardian to a person with no close family members, the designated individual must have been a resident of the state where the legal guardianship is sought for at least six months prior.
The Purpose of an Affidavit of Legal Guardianship
Affidavits of legal guardianship are used to establish the guardianship rights of an individual in a court of law. The affidavit of guardianship is a sworn statement signed by one or both of the natural parents assigning guardianship rights to another person. The Affidavit of Legal Guardianship is sometimes called a Power of Attorney in certain State statutes, but the Affidavit is a more limited and concise document as compared to a durable power of attorney.
The Affidavit of Legal Guardianship is a court certified document that gives a named individual the legal ability to make decisions regarding the ward’s health care, education and property. Just as a complete stranger can establish guardianship over an incapacitated or incompetent individual, a natural parent can also assign guardianship rights of their child to a third person.
A common use of an Affidavit of Legal Guardianship is when parents temporarily relinquish their authority over a child to another family member, such as a grandparent, because one or both parents are either enlisted in the military or are temporarily incarcerated. The Affidavit of Legal Guardianship can also be used to solidify and preserve these rights while the natural parent is not present.
The Affidavit of Legal Guardianship is often used by grandparents who have obtained caretaking rights of their grandchildren. A grandparent can file an affidavit of guardianship in a court of law to legally establish their guardianship and control over the child. The Affidavit of Legal Guardianship then supersedes any control or wishes of the natural parent or guardian of the child. The Affidavit of Legal Guardianship empowers and legitimizes the grandparent or third party in making medical decisions for the ward. With court approval, the Affidavit of Legal Guardianship gives a wide scope of authority to the individual designated by the Affidavit.
It is critical, therefore, that courts and parties understand the importance of the Affidavit of Legal Guardianship. The Affidavit of Legal Guardianship is a powerful document that can be bad faith when made in a deceptive manner. It is imperative that the Affidavit of Legal Guardianship is filed in accordance with applicable State laws; the Affidavit is filed in the proper court and the Affidavit is not fraudulent. Having an Affidavit of Legal Guardianship may enable a third party to assume complete control over a minor child and any fears that the Affidavit may be improperly used, should be addressed by competent counsel before executing the Affidavit.
Sections of an Affidavit of Legal Guardianship
A well-crafted affidavit of legal guardianship will clearly set out the intentions of the parents or families. The document will always include the identities of the guardian, the ward, and family members who have granted the authority described in the affidavit. The document should also specify the terms of the guardianship, spelling out any limits or restrictions so that there can be no question as to what is covered by the authority bestowed in the document.
To give it extra convincing power, you may want to include information about the health or the financial condition of the family. If the child is injured, has health issues, or has other special needs, an attorney can help you craft the document to include specific information about how the guardian will be able to accommodate these requirements.
A complete affidavit must also include signatures. Signatures are vital both for the document to be considered valid as a legal contract, and for the purposes of approval in the event of a timing issue. The guardianship or custody order implemented through a document may take up to 30 days to be fully approved by the court. An unsigned document will be deemed to be the same as if it were not submitted at all, and guardians or custodians may be forced to go through extra steps to streamline the process.
How to Write the Affidavit in Steps
Start with your full name, address and the date at the top of the page. Title it as "Affidavit of Legal Guardianship" and provide space for notarization at the bottom. State why the affidavit is being made and how it conforms to the laws of your state. This will include information about how you are related to the child. Next, state the full names and addresses of both parents as well as additional details about them such as occupation and whether or not they have any other children. Move on to information about any other responsible adult that is living in the residence with the child. Include their full name and occupation. After that, provide information on any other family members that could be responsible for the child. Detail whether or not there are any conflicts between the child’s parents and relatives. The child’s full name, date of birth, place of birth and current address should be provided, followed by a clear statement about the need for the appointment of guardianships. Be sure to avoid difficult language here; a simple statement will suffice. Provide intended details about the relationship that the child has with the guardians. State whether or not the child was placed in his or her custody by the parents as well. Provide signature lines for the child’s parents to verify the contents of the affidavit. End with a space for both the witnesses and the notary public.
Example of an Affidavit of Legal Guardianship
Below is an example of an Affidavit of Legal Guardianship that follows the requirements of Florida law. The Florida statutes provide a statutory format that a legal guardian shall use in their required Annual Accounts of their guardianship. Occasionally, someone will fail to follow the statutory format set forth by the Florida statutes in their Affidavit of Legal Guardianship. It is not uncommon for the Court to then require them to re-submit the document in the proper format on its own motion. This could result in further delays and even extra fees and/or a reduction of their commission. By following the proper format from the very start, you can avoid these additional headaches later on.
Affidavit of Legal Guardianship
As required by Florida Statute 744.367
Comes now (put representative’s full name here as he or she appears in the case caption) and states (he or she) is a (insert title, i.e . HR Manager of ABC Company, or Custodian of the Home of John Doe) for (insert name of ward here as it appears in the case caption) and as to his or her knowledge states as follows:
(a) The Fiduciary has made a diligent inquiry into the condition of the Estate and the accounts and the total amount of funds received by the Fiduciary during the period (he or she) has served as Fiduciary has been $(insert figure here as it appears in the body of the account) and the total amount disbursed by the Fiduciary during the same period has been $(insert figure here as it appears in the body of the account)
(b) (Insert name here) now has in taken (his or her) possession and under (his or her) control the property enumerated in the accounts paid to (him, her or it) as Fiduciary, all of which have been duly accounted for and (he or she) knows of no other assets which are the subject of this guardianship;
(c) The Fiduciary has not directly or indirectly participated in any transaction or contract with respect to the Estate. The Fiduciary has received fair and reasonable compensation for (his or her) services; and
(d) (His or her) accounts are correct and true as (he or she) verily believes.
(Fiduciary’s Signature)
By: (His or Her Signature)
(Title)
(Representative’s Typewritten Name)
(Party who prepared affidavit’s Signature)
(Party who prepared affidavit’s Typed Name)
(Print Affidavit’s Licensed Number)
(Address)
(Telephone Number)
Legality and Completion
When preparing an affidavit of legal guardianship, there are several important legal considerations to bear in mind. For the purposes of legal authority, an affidavit of legal guardianship must be notarized. Additionally, in many jurisdictions, a standard affidavit is not considered adequate to grant legal guardianship. In order to have full authority, a legal guardianship must be formally approved by a judge. The process for obtaining this approval can vary depending on the type of authority being requested and the relevant laws in your particular area. For guardianships for adults (who are incapacitated) your local court system may require the submission of a detailed petition prior to receiving court approval for guardianship. The petition must include information about the nature of the incapacity, and sufficient personal information about the adult and other family members to allow the judge to make a proper ruling. In most circumstances, the petitioner must also demonstrate that guardianship for the adult is in their best interest. For minor children, the process for obtaining court approval may be more streamlined. Depending on local laws, a notarized affidavit of legal guardianship may be sufficient to confer authority. However, in other jurisdictions, a formal petition may be necessary. In all cases, guardianship over a minor child should be finalized by the appropriate local authority (usually juvenile court). Guardians should not attempt to exercise authority without a proper court order. In the absence of a formal court order, it is critical to understand that a guardian may not have full authority. Even with a notarized affidavit, you may not be able to access certain benefits without obtaining full authority from your local court. For example, you may not be able to make medical decisions, or gain access to protected health information, without a formal court order.
What Not to Do
One of the most common mistakes people make is hiring a notary public who is not a licensed attorney. Be wary – this could compromise your rights under the law. Notaries are NOT lawyers, and the law prohibits them from offering legal advice in any way. Another costly mistake is not hiring an attorney when needed. An attorney should be brought in if the affidavit of legal guardianship will need to go to court. If the adult child or mentally disabled person has money or property, guardianship must be decided by the court . The court will often still require a lawyer even for guardianship of an elderly person at times – especially if there are substantial assets involved. One other common mistake is written or oral misstatements about the powers of the affiant and limitations of the affidavit. People often exaggerate the powers of the affidavit and present it as a safe alternative to a durable or statutory power of attorney document. It may save time and money up front, but you will pay for it dearly later if you ever need to use it.