One of the most important decisions you will need to make as a parent is choosing a suitable guardian for your children in the event that you pass away.
A question often raised, in a household when one of the parents is not actively involved in the minor child or children’s life/lives, is whether a guardian can be appointed to care for the child in the event of the primary carer’s passing away.
Although you can appoint a guardian in your Will, it is important to note that:
Section 27 of the Children’s Act deals with the Assignment of Guardianship and Care and sets out that:
A parent, as the sole guardian of a child or an individual 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/guardian; and
The person appointed acquires guardianship or care of the child after the death of the parent AND on the nominated person’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 guardianship.
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.
When considering what is in the best interest of a minor child, the Court considers the factors listed in Section 7 of the Children’s Act. One should note that in this section the term ‘parent’ includes anyone that has parental rights and responsibilities in respect of a child.
The factors that the court considers in terms of Section 7 include, inter alia, the following:
the nature of the personal relationship between the child and the parent/s and between the child and any other caregiver or person relevant in those circumstances;
the attitude of the parent/s, towards the child and the exercise of parental rights and responsibilities of the child;
the capacity of the parent/s, any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs;
the likely effect on the child of any change in the child’s circumstances, including separation from both or either parent, any sibling or other child, or any other caregiver or person with whom the child has been living;
the need for the child to remain in the care of their parent/s, family, and extended family, and to maintain a connection with their family, extended family, culture, or tradition;
the child’s age, maturity, stage of development, gender, background, physical and emotional security, intellectual, social, and cultural development as well as any other relevant characteristics of the child.
For any assistance in appointing a guardian in your Will, or for further guidance in this regard, please contact our professionals on 041 363 6044 or info@kaplans.co.za.
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