Appointing a guardian in a Will

A parent who is the sole guardian may appoint a fit and proper person as guardian of the child, or to care for the child, in the event of his/her death, this must be included in his/her will. It will only come into operation if the parent dies and if the appointed guardian expressly accepts the appointment and more than one guardian can be appointed.

Parents who are or have been married to each other, or who have never been married but the biological father qualifies to have parental responsibilities and rights, are co-guardians. Upon the death of either of the parents, the other usually becomes the sole guardian. An appointed guardian or caregiver cannot ordinarily dismiss the surviving parent as guardian. Parents who keep joint parental rights on divorce are co-guardians, so if one dies, their ex-spouse automatically obtains care of the child.

If the deceased has nominated someone else in their will to have care or guardianship, their ex-spouse will have to agree to waive his/her rights or share such rights before the provisions of the will can take effect. The court will, however, always look at what is in the best interest of the child. If the ex-spouse is an unfit parent, the court may afford care or guardianship to any other person who applies.

If the only surviving spouse dies, the person he/she has appointed as the guardian will be vested with the care of the child and acquire full parental responsibilities and rights upon acceptance of the appointment. If the will of the deceased makes no mention of the child’s personal care, the appointment of a guardian may entitle that person to care for the child.

The views of the child must also be considered in any decision regarding the appointment of a caregiver or guardian. The Children’s Act states that every child of an age, maturity, and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered. With younger children, a skilled legal representative working together with a child psychologist or social worker can convey the child’s views and wishes to the court and make recommendations on what they believe will be in the child’s best interests.

One of the most important decisions one needs to make as a parent is choosing a suitable guardian for their children if both parents pass away. As difficult as it may be to imagine someone else bringing your child into adulthood and making all the necessary, even life-changing decisions on your behalf, it is vital to ensure that any minor child is left with someone responsible, trustworthy, and emotionally mature.

A guardian will take on the responsibility of making major decisions for your child and on behalf of you. This same guardian will also assist the underage minors with any necessary contractual matters. Furthermore, these minors will require their guardian’s permission to marry, apply for a passport or travel out of the country. If more than one person has guardianship of your children, then both guardians’ consent will be required. A guardian is required to provide the child with accommodation, food, clothing, education, and medical care until they reach a stage when they can support themselves.

Therefore, your Will should not only contain details about how your assets and finances will be distributed but should also nominate the chosen guardians who will need to take care of your children during a very traumatic time. Remember that the guardians you choose will need to invest their time and interest in your children, as well as bring them to terms with your passing. It is therefore very important for your children to feel comfortable with them.

How Children Are Protected Under the South African law

The Children’s Act 38 of 2005 governs the laws relating to the care and the protection of children. The guiding principle, in all matters, is the best interest of the child.

Section 27 of this Act deals with the Assignment of Guardianship and Care and lays out that;

  • A parent, as the sole guardian of a child or who has sole care of a child, may appoint a fit and proper person as guardian in the event of their death;

  • This guardianship appointment is required to be specified in a Will made by the parent; and

  • The person appointed acquires guardianship or care of the child after the death of the parent and on the parent’s express or implied acceptance of the appointment.

Who Can Be Appointed as a Guardian?

It is important to note that any other person with an interest in the well-being of your child may approach the High Court for an Order to grant them this responsibility. However, the final decision on a guardian for the minor child always rests with the High Court of South Africa. This Court is the Upper Guardian of all minor children and cannot grant an Order contrary to the best interests of the minor. The Court allows any minor of a certain age, level of maturity and developmental stage, to have a say in the matter of their guardianship as mentioned above.

Appointing a Family Member as a Guardian

Family members/relatives are usually the first choice when it comes to appointing a guardian for minor children, however, it is becoming more common for parents to name close friends in their Will as guardians. This may be due to several circumstances relating to relationships, schooling, finances, and lifestyles.

Alternative Guardians

It is always wise to plan as far as possible, and although you may have chosen a guardian or guardians for your child, divorce, separation, and even death can happen in your nominated family or friends. It is therefore wise and advisable to ensure that you nominate a second choice of guardians if the primary guardian/s are no longer able to take care of your children. Should your circumstances change during your life, or as your children grow older, the guardianships may need to be reviewed from time to time.

How can we help?

Rudolf Buys and Associates Attorneys provides an understanding, and a personalized touch in the dealing with Wills and Trusts and Administration of Estates. RBA will ensure your peace of mind at the time you create your Will, by providing you with sound advice on many matters you may not have considered, including the guardianship of children.

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