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 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 absolutely vital to ensure that any child under the age of 18 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.

Your Will should therefore 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 Constitution

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. Furthermore, this Act intends;

  • to give effect to certain rights of children as contained in the Constitution;
  • to set out principles relating to the care and protection of children;
  • to define parental responsibilities and rights;
  • to make further provision regarding children’s courts;
  • to provide for the issuing of contribution orders;
  • to make new provision for the adoption of children;
  • to provide for inter-country adoption;
  • to give effect to the Hague Convention on Inter-country Adoption;
  • to prohibit child abduction and to give effect to the Hague Convention on International Child Abduction;
  • to provide for surrogate motherhood;
  • to create certain new offences relating to children; and
  • to provide for matters connected therewith.

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.

Appointing A Family Member As A Guardian

Although family relatives may be your first choice when it comes to appointing a Guardian for your minor children, 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’s 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. It is therefore prudent to ensure that you nominate a second choice of guardian, in the event that the primary guardian/s are no longer able to take care of your children.

Nominating Guardians In Your Will

After carefully selecting the primary and secondary Guardians for your children, it is important to make this known in your Will. Should your circumstances change during the course of your life, or as your children grow older, the guardianships may need to be reviewed from time to time.

AED Attorneys For A Well-Structured Will

AED Attorneys provides understanding, and a personalised touch in the legal sphere, dealing specifically with three processes that often get lost in the myriad of services of larger legal firms — namely; Wills and Trusts, Administration of Estates, and Property Transfers.

AED Attorneys 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.

The information provided in this article is aimed at providing general guidance to the nomination and appointment of a Guardian or Guardians to your underage children in the event of your death.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

Instead, AED Attorneys invites you to set up an appointment with them so that they can advise you on your personal circumstances. They have the capability to efficiently assist you by detailing the entire guardianship process in easy-to-understand terms and clarify any financial implications that you may have overlooked.

*AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.