How to Draft a Legal Guardian Letter: Tips & Best Practices
What is a Legal Guardian Letter?
Legal guardianship is a common term that signifies a person being responsible for the well-being of another individual. In the majority of cases, legal guardianships are typically between a parent, guardian, and child. For this reason, legal guardian letters are often signed by a parent and submitted to the appropriate courts as a signature of approval.
In the event that something negative happens, such as a death or accident, a legal guardian letter is essential. In the event that your child’s other parent is unable to provide any parental responsibility, then an approved parent has the right to sign for a child. Parent’s rights with regard to their child include the following:
- Registering a child for school
- Signing for medical treatment
- Traveling out of the country
- Obtaining a driver’s permit
- Enrolling a child in summer camp
These are only a few of the responsibilities that a legal guardian may assume for a child without being required to obtain court approval.
Unfortunately, several situations may arise that require a legal guardian letter:
- Any situation where the parent is physically or mentally incapable of sign, recognizing their signature
- A minor parent is unable to provide medical consent for their own child
- A birth is registered without legal consent
- The legal parent enters into a coma or is hospitalized for an extended period of time
It’s important for you to understand that several procedures may require parental consent, including the following:
When it comes to travel with a minor, Texas laws place ready restrictions on traveling out of Texas, out of the country, etc. Normally, parental consent must be obtained 21 days prior to travel. In the event that a parent signs the legal guardian letter and provides their signature for travel, the document must contain the name and contact information of you, your spouse, and your child.
In the letter , the following information must also be provided:
- Destination(s)
- Dates they will be traveling abroad
- Purpose of travel
- Travel itinerary
Even with any of the above scenarios, it is possible for legal guardians to receive a court order. In this instance, the legal guardian is appointed to care for a minor child or an incapacitated adult. There are several types of guardianship and it’s important to understand situations when a legal guardian letter is necessary:
– Minor guardianship: A minor guardianship involves a parent who is dead or incapacitated, or a minor is in a custodial home. Many people think of custody when considering guardianship; however, this is not always the case.
– Adult guardianship: An adult guardianship involves an adult who is incapacitated and unable to provide their own medical and financial concerns. They are considered legally incompetent to sign documentation or make decisions with regard to property, finances, medical, etc.
Although minor guardianship could be used to describe a situation where parents are divorcing, this is not always the case. In this event, parent and conservator refer to primarily three categories:
- Managing conservator: This type of parent has primary responsibilities with regard to a child.
- Possessory conservator: This refers to a parent who has visitation or parenting time with the child; physical possession, but not legal control.
- Conservator with limited rights: This type of conservator does not spend significant amount of time with the child and this person may only be granted specific rights and privileges with regard to the child.
It’s common for two parents to share joint legal custody over a child, especially if one parent is absent or an extended member of the family is caring for the child. In either situation, at any given time, major decisions must be made on behalf of the child. While there are several instances where a legal guardian letter must be obtained, without question, the best advice is to seek advice from an attorney.
Key Components of a Legal Guardian Letter
While the specifics may vary based on your unique situation, a legal guardian letter should generally include the following components:
Date and location: State the city and state where the letter is signed and the date you signed it.
Beneficiary information: Include the full names of each beneficiary and their respective birthdates. Addresses are not typically included, but do not hesitate to add them if there are children with the same name or if there are any other potential sources of ambiguity.
Guardian information: Include the full names of all proposed legal guardians. In this case, addresses are typically included. Additionally, you may include the relationship each proposed guardian has to the child or children.
Beneficiary consent: Individuals named as potential legal guardians must sign a consent below the beneficiary information in which they agree to each serve in this capacity. This section is often optional, but you may want to include it out of caution.
Signature: Sign your name above the signature line. Since you have effectively created a small legal document, it’s recommended that you have the full document notarized. Though this isn’t strictly required, it may be required by certain banks when your beneficiaries (who will likely be adults by the time they need to cash in the accounts) try to do so.
Revocation language: Language stating that the letter is subject to revocation at any time. Also state that the order will remain valid until revoked.
The law firm: Your letters should specifically name your law firm. Otherwise, the guardian letter is considered a generic legal form that does not carry any weight of authenticity. Remember, this is a broad tool in Florida that allows fiduciaries to work with larger financial institutions to access greater amounts of funds.
Process for Drafting a Legal Guardian Letter
When drafting a legal guardian letter, you want the process to be as clear and straightforward as possible. The first step is to establish a plan for your letter. You need to answer some fundamental questions:
• Who will need to care for your child if anything should happen to you?
• What factors will determine who acts as the legal guardian?
• What is your ideal situation for the future?
After you have answered these questions, you can start writing. This should be a two or three-step process that involves creating an outline, writing the letter and reviewing the final draft.
First, create an outline. A few resources like our free PDF download with a sample guardianship letter/template, examples of guardianship letters online and resources for custody plans can help you create your outline.
Your outline should cover:
• The names of your children
• The individuals you would like as legal guardians
• The location where your family resides
• The timeframe during which the legal guardianship will be necessary, if you are still alive
• Other circumstances that will determine the need for a legal guardianship
Once you have this information, you can start writing the draft. You may wish to write it down by hand or type it out, but it must be witch a pen or keyboard, not by voice recognition; your voice will not be accepted in courts. Either way, you should also consider adding in a few additional details that will help clarify the situation:
• Full names of the children
• Locations where the children reside
• The age of the children
• Your ideal custody preference
• Any additional details that will support your situation
The final and essential step in the process is reviewing your written draft. Read it aloud and make edits as desired. If there are any points you feel require additional clarification, make the necessary changes. When you’re finished, visit a lawyer and have them review it for further approval.
Legal Considerations of a Guardian Letter
The authority of a guardian is always subject to the continuing supervision of the court of the jurisdiction where the proceedings were commenced, and such court will always have the right to review any decision or action taken by such guardian. To act effectively, a guardian must be appointed by deed or order of the relevant court. The person chosen as guardian then has to qualify, either by taking an oath and signing a bond or obtaining an order from the court. The court will always fix the scope of authority, including limits on the care, custody and control of the ward, and can limit the authority and power of the guardian.
In abeyance of those proceedings, a legal guardian must be careful not to deal with the property of his/her ward without first obtaining an order of the court. A guardian must exercise care and diligence in the management of the estate of his/her ward, and must keep accurate accounts of their administration and be able to produce them whenever called for by the court.
In some jurisdictions, a guardian may only be removed from office by order of the appointing court, and only after an investigation into their conduct. In other jurisdictions, the removal procedure is simpler. This also applies to a guardian one who has failed to qualify by taking the proper oath or bond. Where a guardian has failed to qualify, a court can issue an order to remove them from office without further investigation.
If your state allows for more than one guardian to be appointed, the documents should be executed equally so that the guardians hold joint powers over the estate of the ward. In such cases, separate letters of guardianship must be issued to each person.
Common Pitfalls to Avoid
A legal guardian letter is an important document that cannot be taken for granted. It is essentially a means of determining who will take care of your children in the event of your untimely demise or permanent disability. That being said, it is surprising how many people get it wrong, or try to circumvent essential rules. The following points are some common mistakes to avoid.
Overlooked Items
Many people forget to declare what happens if their named guardian is not able to take care of their children for some reason. It is important to include provisions for this unfortunate situation.
Boilerplate Language
Another common error is to take boilerplate language from some other document and plug it into the legal guardian letter without considering your own circumstances. This might also include just copying content from someone else’s will for use as a legal guardian letter .
Vague Descriptions
One of the more commonly overlooked sections of a legal guardian letter is the descriptions of the people involved. For example, your next of kin could be a sibling, but that person may have several children of his or her own. If that person already has a family, they may not want to take yours on as there is a possibility that you are not that close. Be honest in your descriptions about your relationship with your next of kin.
Giving the Legal Guardian Letter Too Much Weight
A legal guardian letter does not determine what happens if both parents are gone; it simply allows the parents to ease the transition for their children in certain situations. It will not be accepted in all legal situations. Though it is a good idea to have a legal guardian letter, it should not replace a will. Having a will is the only way to ensure your children are taken care of in the event that both parents go at once.
Sample Legal Guardian Letter
Specification and requirements are often written in legal jargon that’s difficult for regular people to understand. So we hope our sample template below will help answer some of your questions and serve as a solid guide while completing your own.
[Your Full Name]
[Your Address]
[Your City, State Zip Code]
[Today’s Date]
[Your Child’s Full Name]
[Your Child’s Address]
[Your Child’s City, State Zip Code]
RE: Appointment of Guardian
To Whom it May Concern:
I, [Your Full Name], am the [specify relationship to your child, such as "father" or "mother"].
I am alive and well, however, I want to ensure that my child [your child’s full name] is in great hands should something unfortunate happen to me. [Your child’s full name] should not have to suffer due to my misfortune, so I have decided that if I pass away or become incapacitated, I would like an individual I trust to be in charge of my child’s wellbeing.
I would like to appoint [Legal Guardian’s Name] as the Legal Guardian of my child and give them all rights and privileges regarding the welfare and upbringing of my child. I provide this letter so that legal guardianship can be granted to [Legal Guardian’s Name] and I feel confident that my child will be safe and secure.
This letter will remain in effect until it is revoked in writing. Should you have any questions, or would like further clarification on any issues addressed herein, you may contact me at [Your Email Address] or via phone at [Your Phone Number].
Respectfully,
[Your Name]
[Your Signature]
FAQs About Legal Guardian Letters
What is the purpose of a legal guardian letter?
A legal guardian letter lets the person you trust make urgent decisions for your minor child if you and your co-parent are unavailable to do so. A legal guardian letter can be written for a specific time period, such as when you and your co-parent are out of the country, or it can take effect immediately if you are injured or incapacitated.
What happens if I don’t have a legal guardian letter?
If you do not provide legal guardians for your children, they could be placed in temporary foster care while the courts sort things out. It is never a good idea to leave the future of your children in the hands of the courts, so write a legal guardian letter, even if you have other estate planning documents.
Can a legal guardian letter be canceled?
If you and your co-parent are both alive and capable of making decisions for your children, you can easily cancel a previously issued letter by sending a new letter that states the previous letter is no longer valid . It’s a good idea to send the cancellation letter to the person named as the guardian, so they know about the change as soon as possible.
If one parent has passed away, the surviving parent can cancel the letter or negotiate with the designated guardian to get them to step down.
Do I need to obtain legal guardianship of a child if I am named as their legal guardian?
No. Legal guardians are not legal guardianship over children. It’s a simple way of designating a temporary caretaker for your child. Full legal guardianship can only be granted through family court proceedings.
If I name a legal guardian, can my co-parent overrule me?
No. A legal guardian letter only takes effect if both parents are strong enough to issue the order. So you cannot designate someone as your child’s legal guardian if your co-parent disapproves.
Where should I store my child’s legal guardian letter?
Store a signed, notarized copy of the letter in a safe place in your home. Give a copy of the letter to their legal guardian and co-parent for safekeeping.