What Is an Affidavit of Legal Guardianship?
An affidavit of legal guardianship is a legal document used in various proceedings to establish the role and authority of a court-appointed guardian. This document ensures that the appointed individual can make important decisions for and on behalf of the person who requires care (such as a child or an individual with special needs). The affidavit typically includes information about the personal and medical care responsibilities, the legal scope of their decision-making power, and relevant personal information about the person being cared for . The purpose of an affidavit of legal guardianship is to provide a comprehensive legal outline of the relationship between the guardian and the person receiving care. This document may outline the periods of time in which it would be valid, or conditions in which a third party would be required to accept the authority of the guardian. For this reason, having an affidavit of legal guardianship is essential to verifying a guardian’s authority and ensuring that his or her decisions will be followed consistently throughout any setting.
Components of a Legal Guardianship Affidavit
The affidavit of legal guardianship is a formal document that establishes the legal authority of the appointed guardian over the ward. This document should include important details about the ward, the guardian, the relationship between them, and the scope of the guardianship. The following elements are essential to an affidavit: Personal Information: The names, addresses, and dates of birth of both the ward and the proposed guardian should be clearly stated in the affidavit. This information is used to identify the parties involved in the guardianship. Relationship: An explanation of the relationship between the guardian and the ward should be provided. This might include how long the guardian has known the ward, how often they have interacted, and in what capacity they have interacted (e.g., as a family member, friend, etc.). Scope of Guardianship: The specific powers and responsibilities the guardian will have should be defined. It should be stated whether these powers are full guardianship or limited guardianship. Additionally, the document should outline what types of decisions the guardian will be authorized to make on behalf of the ward. Mental Capacity of Ward: A section addressing the mental capacity of the ward is often included. This may detail the specific mental incapacity that has necessitated the need for guardianship. Acknowledgment: The proposed guardian should acknowledge their understanding of the duties and responsibilities that come with guardianship.
How to Get an Affidavit of Legal Guardianship: Step by Step
The process to obtain an Affidavit of Legal Guardianship requires a few steps and can take several weeks. The Guardianship Debrief blog has provided the following step-by-step guide to obtaining an Affidavit of Legal Guardianship.
- Determine if you need an Affidavit of Legal Guardianship. There are many forms of guardianship, and simple guardianship filings may not require an Affidavit of Legal Guardianship. However, if the value of the person’s property is greater than $10,000 or is computed to include homes, shares of corporate stock, or other aspects of a life estate, then in such case an Affidavit of Legal Guardianship is required.
- File the statement of incapacity. Before filing for an Affidavit of Legal Guardianship, a statement of incapacity must be filed with the court. The statement of incapacity form can be obtained from the clerk’s office. Once filed, the statement of incapacity will be reviewed by the court. If the statement of incapacity contains sufficient detail, a requesting party may be required to file an Affidavit of Legal Guardianship and possibly to appear in court before the Affidavit is issued. If the requesting party is required to appear in court, the statement of incapacity would be generally returned with instructions from the court to set a hearing date.
- If required, attend the hearing. After setting the hearing date, the requesting party must attend court to present their evidence regarding the incapacitated person. After concluding the hearing, the judge will issue a written order granting or denying the Affidavit of Legal Guardianship.
- File the Affidavit of Legal Guardianship. Once received, the requesting party can present the Affidavit of Legal Guardianship for recording at the Register of Deeds along with payment of the recording fee.
Prerequisites and Legal Considerations
When considering the filing of an affidavit of legal guardianship, understanding the jurisdictional requirements is critical. Each jurisdiction is likely to have its own legislation and procedural requirements that must be followed. Therefore, it is important to seek guidance from an experienced and licensed legal practitioner in your jurisdiction if you are considering guardianship. The following is a general guide only, and should not be used as a substitute for legal advice.
In Victoria, Australia, a legal practitioner is required to apply to the Office of the Public Advocate to appoint a guardian of the person or estate, and such application is governed by the Guardianship and Administration Act 2019 (Vic).
The usual route for appointment of a guardian will vary depending upon the age and capacity of the person for whom the guardianship order is sought. In the case of a minor applicant, the guardian must apply to the Children’s Court, however if the person is an adult, an application is required to be made to the VCAT (Victorian Civil and Administrative Tribunal). The application for adults will usually be in respect of the estate, health care and personal matters.
It is important to note that in most circumstances, irrespective of age, the appointment is not made upon consent, and persons applying for guardianship (particularly on behalf of a minor) should be prepared to provide full and frank disclosure to support their application. There are stiff penalties in some jurisdictions for non-disclosure of information considered relevant when applying for guardianship.
Most Frequent Problems and Solutions
Although an affidavit of legal guardianship is fairly simple, there will undoubtedly be some challenges when preparing one for the first time. Below are some of the common challenges and tips to overcome them:
Child has a different last name than the parent. In the case of divorced parents, or parents who have never been married, the child may still not have the same last name as the parent. This most often happens with fathers who are not listed on the birth certificate, or who were listed on the birth certificate but have since changed their last name. In these cases, you will be able to use an amended birth certificate or, in absence of that, a paternity order, as proof of parentage .
Notary public unavailable. Finally, there is the issue of finding a notary public. If your local UPS store, or bank branch refuses to notarize the affidavit, check out any local real estate offices, law offices, or nursing homes; they often have notaries available.
Keep in mind that any person aged eighteen or older can notarize an affidavit. In fact, these are not typically time-consuming nor inconvenient matters. However, it might be easiest to wait until you know your notary will be available when you need them. No need to rush, as long as you get it done before an emergency arises.
The Importance of Legal Representation in Guardianship Proceedings
Consulting with a legal professional is essential when drawing up an affidavit for legal guardianship. Even if both parties are in agreement about their intent, objections from other relatives or parties may arise. Although objections do not prevent the guardianship from taking effect, they may cause significant delays. Preparing the necessary paperwork may decrease the chance of objections, and streamline the process, which can sometimes take up to two months or longer to resolve.
In addition to avoiding objections from relatives, a lawyer will ensure that the person drafting the affidavit meets the state’s legal requirements for obtaining legal guardianship. If you are not residing in your relative’s or beloved one’s state of residency, for instance, he/she will likely have special provisions about who may serve as the guardian. Some states, for instance, require the guardian to reside in the state for a specific period of time before serving in this role.
State laws about legal guardianship vary, which means that jurisdictions have different requirements for guardianship affidavits. Having a legal professional in your corner means that you will be protected from inadvertently violating any provisions, which could lead to fines and/or the nullification of the guardianship.
Frequently Asked Questions: Affidavit of Legal Guardianship
We’ve answered some of the more commonly asked questions about Affidavit of Legal Guardianships below.
Q: What is an Affidavit of Legal Guardianship?
A: An Affidavit of Legal Guardianship allows for a legal guardianship of a minor child under the supervision of the Domestic Relation Section of Shelby County Juvenile Court. The legal guardian must file the Affidavit with the Court and appear for a hearing to become the legal guardian of the minor child.
Q: Does a parent’s rights terminate immediately after the filing of the Affidavit of Legal Guardianship?
A: No, the Admission of Voluntary Guardianship or the Court Order granting the Guardian legal custody terminates the parent’s rights.
Q: Can a Kinship Foster Parent file an Affidavit of Legal Guardianship?
A: If you have an Order from DCS granting you Temporary Custody or a Custody Order you need to file a Motion for Authority to Consent to Adoption.
Q: A relative is caring for a minor child. Will the relative have to go to Court?
A: Yes. If the minor child has not been appointed a licensed Department of Children’s Services (DCS) Foster Parent, a licensed DCS relative, a Department of Mental Retardation (DMR) Foster Parent, a therapeutic Foster Parent, a licensed DMR relative, or a Court appointed legal guardian or custodian . The legal guardian will have to go to Court to be appointed as provider of the child.
Q: The child has health insurance; will the Affidavit of Legal Guardianship give the relative the right to obtain health insurance?
A: Yes, the Affidavit gives the relative the right to make medical decisions for the child.
Q: The parent has not paid child support in years, will the parent have the right to visit the child?
A: The parent will not have the right to demand a visitation schedule. The legal guardian will have the ability to decide when and if a visit will take place.
Q: If the Affidavit is not in place and the biological parent passes away, what happens?
A: The biological parents will have priority to become the legal guardian. You need to contact the Domestic Relations Section of Juvenile Court to make them aware of a death.
Q: Can a non-relative be appointed as a guardian?
A: No. Only the biological parent can appoint a non-relative as a legal guardian.
Q: Can a relative located outside of Tennessee petition for an Affidavit of Legal Guardianship?
A: The relative must file the Petition in the county where the child resides. Only the Domestic Relations Section of the Juvenile Court can appoint a legal guardian.