Guardianship Affidavit — what a deed can do, and what only a court can

e-StampNotary

Say the hard part first

Legal guardianship of a minor comes from an order of the District Court under the Guardians and Wards Act, 1890. It does not come from a deed, an affidavit, a family arrangement or a notarised paper, and no amount of stamp duty changes that. If what you need is authority to deal with a minor's property, to represent the minor in a legal proceeding, or to displace or replace a natural guardian, you need a court order and you should be told so at the outset rather than after you have paid for a document that will not work.

What an affidavit does is different and still useful: it records on oath who the child lives with, who is responsible for the child, what has happened to the parents, and in what capacity the deponent acts. For a great many everyday purposes that is precisely what the institution in front of you is asking for.

Natural guardianship, and why the drafting must be careful

Where both parents are alive and living together, no appointment arises at all — the affidavit simply states the position and, where an institution requires it, records which parent will act. Where the parents are separated, where one has died, or where the child is being brought up by grandparents or an uncle, the affidavit has to state the facts honestly: what happened, when, who has actual custody and since when. An affidavit that quietly omits a living parent is the most common failure in this category, and it is the one institutions look for hardest.

A guardian's consent affidavit for travel, similarly, should name the accompanying adult, state the dates and destination, and be signed by the parent who is not travelling. Vague, open-ended consent is worth little to an airline or an immigration officer.

The minor's property is a different matter entirely

Selling, mortgaging, letting or otherwise dealing with property in which a minor has an interest is where affidavits stop and courts begin. A purchaser's advocate will look for the court's permission, a Sub-Registrar may decline the document without it, and a transaction pushed through on an affidavit alone can be attacked years later by the minor on attaining majority. If a minor's share is involved, say so at the counter before anything is drafted. We will tell you plainly whether what you want is possible over a counter or whether it needs an application to the District Court.

What gets these rejected

• A living parent not mentioned, or mentioned without saying where they are.
• No proof of relationship to the minor — birth certificate, school record, ration card.
• The minor's name or date of birth differing from the school record.
• An affidavit sworn by one parent where the institution or the passport formalities require both.
• A claim to act as "legal guardian" where there is no court order. Say "natural guardian" or state the actual capacity — the word matters and officers notice it.
• Open-ended authority sought over a minor's property or funds.

Practical points

Stamp duty as currently prescribed under the Gujarat Stamp Act, 1958, confirmed at the counter and e-stamped here. The oath is administered under section 8(1)(e) of the Notaries Act, 1952, under signature and official seal, with the entry recorded in the Notarial Register in Form XV. Drafting in Gujarati or English, and the Notary can attend at your address where a grandparent deponent cannot travel.

What to bring

• Birth certificate of the minor
• School record or bonafide certificate showing the minor's name and date of birth
• Aadhaar and PAN of the adult who will depose
• Proof of relationship — ration card, family record, or the parents' documents
• Death certificate of a deceased parent, where applicable
• Any court order already made concerning custody or guardianship
• The bank's, school's or insurer's own form, if they have given you one

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