Aunt wants to become niece’s legal guardian

DEAR MRS MACAULAY,

I have been taking care of my niece for almost eight years now. Her mom and dad passed away — her dad died when she was three and her mom when she was six. She will be 14 soon. I am trying to renew her passport and would love at some point to apply for her visa. I am not sure how to proceed to become her legal guardian. Please give your advice.

The short answer to your request is that you must retain the services of a lawyer to assist you and your niece to prepare your application to the Supreme Court for you to be appointed her legal guardian, on the grounds that you have for eight years been acting in that capacity as both her parents are dead, and that in the circumstances, you need legal authority to act for and make applications on your niece’s behalf.

Your affidavit in support of your application must state the full facts of the circumstances which resulted in her becoming an orphan, and thereby came into your care and control, and that she has been residing with you and you have been taking care of her in every way, for the last eight years. You must also state that it is in your niece’s best interests for her to continue to be in your care and for your status to be made legal, so that you can make all the necessary decisions for her development and necessary applications without any impediment.

If you do not have certified copies of the death certificates of your niece’s father and mother and spare copies of her own birth certificate, you must apply for and obtain such copies. I always suggest that it is best to obtain at least two such certified copies, as one set would have to be produced and filed with your application. They would in fact be produced and attached as exhibits to your affidavit in support of your application.

I also suggest that you also add to your application for legal guardianship, an application for custody and care and control of your niece. I so advise, because it is prudent to do so, as then the order of the court would make it clear that you are not only your niece’s legal guardian, but also that you have legal custody of her and that she resides with you. This will erode any possibility of complications, especially when you make visa applications for her, that you are not merely her guardian making decisions for her development, but that you have the legal authority to have custody of her and to have her in your day to day care.

Your affidavit in support must also contain facts about you, your occupation, and financial situation to demonstrate the fact that you can provide all necessities for your niece’s development and life. This does not mean that you have to give actual dollars and cents, but the reference to and declaration of this fact should be included in the affidavit. It must also state facts of your residence and with whom, if anyone else, you and your niece reside, and about the space she occupies. The affidavit must also give the facts of your niece’s school, grade therein, her state of health, and that she does not or does suffer from any chronic/serious illness, and that she receives religious instructions and practises her faith at a named religious establishment.

If you need your orders sooner rather than later, your lawyer should also prepare and file with your application an Affidavit of Urgency, demonstrating the reason and need your application to be dealt with as a matter of urgency and that this is in the best interests of your niece.

So it is for you to choose and retain a lawyer to act for you and to get your application filed as quickly as possible. Please remember that our courts are very, very busy, so the sooner you apply, the sooner your application can be dealt with and completed.

One final piece of advice — after you obtain your orders, please do your Last Will and Testament and in it make an appointment of someone you trust who would take good care of your niece, if the need arises, who has agreed to be her guardian and have custody and care of her and be her trustee if you leave your niece a gift in your will. This person should take care of your niece in your stead up to her attaining her majority. Or, you can merely do an “Appointment of Guardian” and appoint the person and state that they have agreed to have custody and care and control of your niece and be her legal guardian and trustee and you so appoint the person.

I hope that I have clarified the legal steps for you and your niece so that your status can become legal as soon as possible.

I wish you and your niece the very best in every way, throughout your lives.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.