Guardian of your universe

Why you need to appoint a legal guardian for your children in your will

If you have children, you need a will. If you die without a will, this is known as dying intestate or in a state of intestacy. Nearly 75% of South  Africans die without having a valid will. If this happens, your assets are distributed according to the law of intestate succession. The courts make the decisions on your behalf, in line with very strict rules, and your wishes are irrelevant.

A will ensures you can make adequate provision for your children, should you die before they reach the age of 18. However, the purpose of a will goes beyond financial provision. The will is the vehicle for nominating a guardian for your minor child/children. In normal circumstances, the surviving parent will automatically become the child’s legal guardian, whether or not you are married. This is because you are both deemed to be natural guardians, a role you cannot decline. If you are divorced and have joint parental rights and responsibilities, you are considered co-guardians. In the event of one parent dying, the other assumes care of the child.

Single parents or death of both parents at once

However, there are certain circumstances where this scenario does not apply. If you are widowed, or if you are a single parent and the other parent’s identity or whereabouts are unknown, you are the sole legal guardian for your child. In this case, it is important to name a guardian. You may assume that your parents or siblings will look after your child if you are not around, but unless that relationship is stipulated in your will, there is no guarantee the courts will come to the same conclusion. Grandparents, though loving, may be ageing and not have the physical or mental capacity to look after a boisterous child. Your siblings – the child’s aunts or uncles – may be immature or unsettled, and the courts may deem them an unsuitable guardian. They may live overseas and you prefer your children to remain in South Africa. Or they may decline. They have that right.

If you and the other parent are in good health and living together or in regular communication, the likelihood of needing a guardian is minimal. However, it has happened that parents have lost their lives simultaneously, e.g., in a road traffic accident or air disaster. The child was not with them or survived the incident. This is extremely rare, but it is good planning to cover all possibilities. Then hopefully they will never come to pass.

Have the discussion

It’s a conversation you should have as soon as you become parents. Determine who in your family (if possible) is willing and able to care for your child after your death. If there is no family member, consider a close friend. But it’s a big commitment and should be discussed at length before you – and they – decide. As the birth of a child is a trigger event for updating (or making) a will, this is the time to consider your wishes regarding guardianship of your child.

Duties and responsibilities of a guardian

The legal guardian does not assume financial responsibility for the child. You need to do this in your will. It’s a good idea to have a life insurance policy that will pay your dependants an income on your death and cover costs like medical insurance, school fees, etc. Insuring the value of your property bond with life insurance means the outstanding debt will be paid off and your dependants can stay in the family home (again, if appropriate). The guardian has the legal authority to make decisions on behalf of your child with regard to their upbringing, including decisions on where your child will live and where they will go to school. This is known as “parental responsibility”. They also have a duty to administer the child’s property (e.g., the family home mentioned above) in their best interests until they are old enough to manage their own affairs. The guardian’s role, in terms of the Children’s Act 2005, includes:

• Administering and safeguarding their property and property interests
• Assisting or representing the child in administrative, contractual and other legal matters
• Giving or refusing consent required by law in respect of leaving the country, applying for a passport or selling immovable property belonging to the child

Consider a trust

While it is very important to make financial provision for your children in your will, if you leave assets directly to them, these funds will be lodged in the state-run Guardian’s Fund and administered on their behalf until they reach 18. The interest on this fund is known to be low, and the process for claiming from the fund is onerous.

You can avoid this eventuality by setting up a trust. There are many types of trust, but the most suitable in these circumstances is a testamentary trust, or mortis causa trust. This trust is triggered on your death for the purposes of housing the assets you want to leave to your minor children. The trust is the named beneficiary of those assets, which are transferred into the trust upon your death and administered by the trustees you appointed for the benefit of your children until age 18 (or any other age you nominate).

How to choose a guardian

The court in South Africa is the upper guardian of all minor children. Therefore the court has the final say in who will look after your child. However, if you have considered the matter with love and care and your child’s best interests at heart, and have discussed it with your nominated guardian (and they have agreed), it is unlikely the court will go against your wishes. The court will also take the minor child’s view into account, if the child is old enough and mature enough to express their wishes. In appointing a guardian in your will, you might consider:

• How well does your child know the person and what is their relationship like?
• Where does the proposed guardian live in relation to you, and will your children be able to remain at their current school and keep the same circle of friends?
• How well does the person get on with your parents and the other set of grandparents? You want to be sure these essential familial relationships are maintained.
• Do you share similar moral and ethical values with the person?
• Do you trust them to put the best interests of your children first at all times?
• Do they have children of their own and are you roughly aligned on parenting style?
• Will they respect your wishes and raise your children according to your religious beliefs, if relevant?

And most importantly, are they willing to take on the responsibility for your child, perhaps for a long time? Godparents are often nominated for the purpose of the christening ceremony, but give little thought to the implications of being godparents; traditionally it was a commitment to raise the child in the parents’ faith should anything happen to the parents. It is critical that you have a full and frank discussion with your intended guardian before including them in your will.

If you do not appoint a guardian via your will, but you have discussed it with the individual you propose, they will have to apply to the High Court to be appointed the legal guardian to your child. This can be costly and is also distressing for your child, at a time when they are already traumatised by the loss of a parent or parents. It makes good sense to do it now.

For more information about drafting a will or setting up a trust

Legal advice is essential in drafting your will or setting up a trust. Cape Town law firm Simon Dippenaar and Associates can help you with all aspects of estate planning trust registration and administration. We are also in Johannesburg and Durban. Give attorney Simon Dippenaar a call on 086 099 146 or email sdippenaar@sdlaw.co.za.

Further reading:

• How to register a trust – the procedures and costs involved
• Trusts – frequently asked questions
• Divorce and your will
• Planning for when you’re not around

SD Law

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