Guardianship is a legal relationship in which an adult is responsible for the care and decision-making of someone who cannot care for himself. Although the term "guardian" is most frequently used with regard to being the guardian of children, guardianship affidavits are typically reserved for professionals, such as doctors and social workers, who are petitioning to have a guardian appointed for elderly or disabled persons. However, a guardianship affidavit may also be used by witnesses in court proceedings, particularly child custody disputes. The specific wording you use in your affidavit will vary depending upon your situation and jurisdiction. If you're not sure what you need to convey, consult a lawyer or your local laws.
An affidavit is a signed, sworn document containing facts to which the affiant can competently testify. The affidavit should be filed in the court that handles guardianship and family law in the county where the person in need of a guardian resides or, if there are already court proceedings, in the court where those proceedings are taking place. At the top of the affidavit, provide a "Re" field followed by the person's name. This makes it easier for the court clerk to identify the case you are writing about. Then state your name and number the paragraphs, with each paragraph containing a factual claim. Have the affidavit notarized and sign the affidavit in front of a notary.
Affidavits From Professionals
Doctors, social workers and mental health professionals should provide their credentials at the beginning of the affidavit and explain why they are competent to assess the person's need for a guardian. Explain how long you have been treating the person, behaviors you have witnessed and recommendations you have given the patient. Avoid speculation about the person or their family's motives or feelings. This will undermine your credibility and affidavits are equivalent to courtroom testimony, so it's important that all the facts contained in them can be verified.
Affidavits From Witnesses
If you are a witness or petitioner in a guardianship proceeding, you may need to file an affidavit explaining why the person needs a guardian or why you are a suitable guardian. Explain how long you have known the person, what your relationship is and why your recommendations are in the person's best interest. In child custody proceedings, every state has a "best interests of the child" standard, so it's important for affidavits in these proceedings to focus on the needs of the child and how to meet those needs.
In child and elder abuse cases, a guardianship affidavit is frequently required from a professional who has witnessed or suspects the abuse. After court proceedings begin, affidavits testifying to the abuse and to the best interest of the person suspected of being abused are also frequently required. In these affidavits, it's vitally important to stick to verifiable facts. Rather than saying, for example, "I know Jane Doe is an abuse victim because she is fearful," say, "Jane Doe has many of the symptoms of abuse, which include x, y and z." If you have witnessed the abuse, be sure to note times, dates and specific circumstances. For lay witnesses, avoid making medical speculations. Instead, list your experiences with the person and what you have witnessed.
- Guardianship of the Elderly; George H. Zimmy et al.
- Public Guardianship; Pamela B. Teaster et al.
- Cases and Materials on Family Law; Judith C. Areen
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