What Is a Legal Guardianship Letter?
A legal guardianship letter is a powerful legal document that deals with the care of your child if you should pass away or be unable to care for them. Although the End of Life and Personal Directives Act ("Act") gives a parent ability to temporarily appoint someone to care for a child, this authority ends when the parent has the opportunity to make a legal guardianship application.
Although the Act provides some protection to appoint a temporary guardian, unfortunately the Act lacks a mechanism or basic procedure to appoint that guardian . This can mean that the parent can only hand deliver the directive to someone and hope that person will honour the directive. A legal guardianship letter includes provisions granting authority to the appointment of a temporary guardian.
Legal guardianship letters are generally drafted by the parent before their death or incapacitation. The letter is stored for future use when it is needed. For example, a parent may leave a letter in an envelope for the temporary guardian of their child or children. A signed statement from the parent stating that they wish the authority to grant the following provisions is essentially a legal guardianship letter.
Essential Elements of a Legal Guardianship Letter
When it comes to writing a legal guardianship letter, there are some key components that must be included in order to ensure that the letter is valid. For example, the names of the guardian (the person who is requesting guardianship) and the ward (the individual who is the subject of the guardianship) must be clearly stated, as does the scope of the guardianship, including specific responsibilities that the guardian will be charged with. As a general rule, the letter should state clearly the specific legal references granting the guardian the authority over the ward. In other words, anyone reading the letter should be able to understand from the terms and conditions presented in the letter exactly what the guardian’s duties will be, and what responsibilities he or she will have concerning the ward and his or her future.
How to Compose a Legal Guardianship Letter
An example of when a guardianship letter may be necessary is in the case of minors where both parents are deceased or unable to care for the child. In such instances, a letter may be needed to apply for a legal guardianship. A guardian plays the role of a parent in the eyes of the law. If you need to write a legal guardianship letter, these steps can guide you through the process. Research the legal requirements of your state. Each state has its own laws and regulations regarding guardianship and guardianship letters. Research these requirements online through your state’s Courts website or by contacting the family court and guardianship coordinator in your local area. These entities can direct you to pertinent state law in addition to providing other resources to which you may have access. Download a template. A basic guardianship letter template can provide a framework for your message. Your state’s courts website may have a blank copy that you can download. If there is no applicable template available, consider downloading a generic blank guardianship letter template. A plain Microsoft Word template may also suffice. The template should include the header, salutation, contacting information, body and signature line. Word out the legal guardianship letter. Keep your letter concise and to the point while including all applicable relevant information. Your letter should contain the specific names of the child and of those petitioning for guardianship, as well as other details, such as a detailed description of the child’s condition or circumstance that prompted the need for a guardianship. Open with an explanation of the type of guardianship needed, be it temporary, emergency or general guardianship, and why the guardianship is necessary. Indicate the names of the child and of those petitioning for the guardianship, provide a compelling history of any prior statuses of the child, and list the names and addresses of anyone partially or fully dependent on the child. Cite any applicable ancestral history or information that may be available in your legal guardianship letter. Address any applicable legal history, such as involvement with child protective services, juvenile courts or criminal actions. Clearly indicate the necessity of or reason for guardianship and why it is in the best interest of the child. Include a list of people who have or will have legal or physical custody of the child, and provide any additional information that would impact the child’s care, such as mental or physical disabilities. Be sure to confirm that you are able to provide the necessities of the child’s upbringing, including education, social and health care needs. Conclude your letter with a statement acknowledging that you understand why guardianship is in the child’s best interest. Sign your name and include your contact information, along with the names of any other applicants that you may be petitioning for legal guardianship. Review a copy of the guardianship letter for any errors, and submit it via your local courts or family court system, as applicable.
Common Errors to Avoid
When crafting a legal guardianship letter, there are several common mistakes to watch out for:
- Not being specific: Vague statements about how you want your affairs handled can lead to confusion or even disputes over what you intended. Be clear and concise.
- Changing your mind, but not the letter: If circumstances change, so too should your legal guardianship letter. Always keep your letter up to date to reflect current wishes.
- Failing to communicate: Talk to those you designate as guardians to ensure they are willing and able to take on the responsibility.
- Forgetting to share copies: Don’t keep the letter in a safety deposit box that your guardians can’t access.
- Neglecting to use detailed instructions: The more detailed the instructions you provide, the less ambiguity there is for your guardians to interpret and the better you’re able to ensure your wishes are carried out.
- Not having an alternate (or backup) in mind: Always consider the possibility that your primary choice for guardianship may not be available at the time you need them. Include an alternate guardian in your letter, just in case.
- Failing to provide your doctors with access to the letter: Your trusted medical practitioners should know where to locate your guardianship letter. Be sure to share copies with them, as well.
- Leaving instructions to wonder: Your legal guardianship letter should address any possible issues or scenarios that could arise after you’re no longer able to handle your own affairs.
A Legal Guardianship Letter Example
To Whom It May Concern:
I hereby appoint Mary Doe, residing at 1234 Elm Street, Anytown, California 90210 as the legal guardian of my son, John Smith, born January 15, 2015. This designation supersedes any previous designations for this purpose. My son is currently enrolled in Elmwood Elementary School in Anytown with Mrs. Thyme as a teacher and Mr. Greene as the principal (principal).
This letter is to be used only in the event that I am not able to act on behalf of my son due to incapacitation caused by injury, illness or impairment, for example by being unconscious, unable to communicate or otherwise impaired. If I am able to act on behalf of my son even though I have been injured or impaired, then any and all authority of this appointment is hereby waived until I am no longer able to do so.
In the best interests of my son, I would like to make certain that he has the privilege to visit his friend Timothy Taylor of 5678 Oak St, Anytown, California 90210 on occasion without my consent. I understand that it may be necessary for me to provide written consent , or that the individual to whom I am granting guardianship may be at risk from authorities should they allow my son to visit his friend without such a designation. As my appointed guardian, this provision is subject to your approval and discretion.
In the event that either my guardianship for my son is terminated, or I am able to act on behalf of my son, then this designation will be considered complete, void and of no effect. The authorities (e.g. police, schools, hospitals) may contact me by phone at (111) 111-1111 to confirm this appointment and its terms, and by mail at the address above to obtain a signed copy of this letter if any questions arise. This letter is to remain in effect until further written notice by myself, or until terminated by a court order, whichever comes first.
Sincerely,
Signature (if submitting a paper copy)
Printed Name:
Date:
By following a similar format, an individual can adjust the details to fit his or her specific situation.
Legal Requirements and Implications
When drafting a legal guardianship letter, there are several legal considerations and requirements that must be taken into account. First, it’s important to establish which court in your jurisdiction handles guardianship petitions. The process for becoming a legal guardian typically involves a filing with the appropriate probate court in your locality, and each court may have slightly different requirements for the process.
For example, in the United States, every state and territory has laws regarding minor and adult guardianships. Most often, the court system concerned with guardianships for children is known as the probate court or the surrogate’s court. Virginia, for example, refers to these courts as probate courts; New Jersey refers to them as surrogate’s courts; Connecticut refers to them as probate courts; and Alaska refers to them as superior courts. In Colorado, you’d go the probate court, while in Pennsylvania you’d go to the orphans’ court.
While we always recommend checking with the local court to avoid any jurisdiction-specific concerns, the general process for becoming a legal guardian for both adults and minors is relatively similar across most U.S. courts.
Once someone becomes a legal guardian, there are certain requirements that come along with the authority. First, guardians of adults have the "right to control during the incompetent person’s incapacity, … such a person’s salary or income from any source." That includes any inheritance or gift, as well as insurance policies. Additionally, they have the ability to receive the adult’s wages or benefits. This authority does not, however, affect a guardian’s obligations to provide for the care of the ward.
Another important consideration is whether or not the guardianship can be contested. While the letter does not need to require acceptance, it is a good idea to include that wording. To give the letter an official purpose, guardianship letters should be printed on letterhead or require a signature.
To become a legal guardian, the individual typically must submit the proper forms with the probate court in the state. This generally involves completing certain state-specified forms and accompanying them with various other documents.
Fulfilling these requirements to become a legal guardian is different in each jurisdiction, as each state has its own probate forms. States expect certain paperwork when an individual goes into the probate court to obtain the authority to act as a guardian, which includes information such as who the proposed guardian should be, as well as the name of the person whom the proposed guardian will care for.
In most cases, the paperwork involved with the process requires the guardian to submit a copy of the minor’s birth certificate, a copy of the minor’s social security card, copies of the proposed guardian’s identification and a notarized letter from a third party certifying the guardian’s ability to care for the child.
That being said, guardianship letter requirements and processes are different in each state, so you’ll need to check with the applicable court. In Nevada, an individual who’s petitioning for letters of general/limited guardian of a minor must complete a "General Guardian Information Sheet." In Kansas, the court requires that a "Certificate of Completion of Parent Education Fund Program" accompanies the submission.
Again, because this process is delicate and involves the care and future wellbeing of a minor or incapacitated adult, these requirements can vary. It’s important to check with the local court and ask questions about any documents or forms that are unclear.
Finalizing and Filing Your Letter of Guardianship
Finally, before you print and seal your letter, it is a good idea to review the whole letter. Check for any typos or errors, either in the spellings or the style. Review your list of decisions one last time to ensure it is what you want. Look the final version over at least once more before submitting, as this will help ensure that you have not overlooked any changes or mistakes that may have snuck back in.
It is best that you have someone left with whom you can share your decision. Your chosen caregiver is the first choice for most people , but you may also want to leave a copy with responsible and likely-to-be-available friends or personal associates.
Finally, if you intend to submit this guardianship letter to guardianship services, hospitals or medical practices, your local government, or anyone else, follow all of their instructions for submission. If you plan on leaving the letter with your primary care physician to be kept on record, ask them how they prefer to receive it. Most offices will be fine with a scanner or scanned email copy, but you should ask them. These copies have legal binding, so it is always best to submit them properly.