The tangled web of appointing a guardian

No one will love your children like you do, but who will raise them should you die whilst they are still minors? Making sure your child is cared for and looked after by someone who you know will care for them as much as you when you’re gone, is something that can only be achieved through the appointment of a guardian in a will. The appointment of a guardian should not be taken lightly, though.

There are crucial factors to consider when appointing a guardian:

• Age and health of your potential guardian
• Moral values, such as faith, education and parenting style.
• Would your children get on with theirs?
• How responsible are they when it comes to their careers and their approach to money?
• Finances and overall stability. Do they have a stable job and home?

If you don’t choose a guardian, the High Court will. Once a legal guardian has been appointed, the Court takes the child’s opinion into consideration and will conduct the necessary investigations to determine whether the most suitable guardian has been appointed, putting your child in a difficult situation that could have been avoided.

Unfortunately, the appointment of guardianship is not legally binding. Appointed guardians are free to accept or decline their position as legal guardian before any parental rights or responsibilities are given to them. In the case where the appointed guardian refuses guardianship, the High Court will look towards the next of kin of the deceased parents to find a suitable guardian. This search is conducted according to the degree of familial relation, making the aunts, uncles and grandparents of the child the first options.

When no next of kin can be found, the High Court will place the child into childcare.

When appointing a guardian in your will, it is important to consider the fact that your primary candidate may not be able to fulfil their duties and you should include the names of substitute guardians for such cases. This will ensure that the child’s future is still in the hands of their parents.

This is looking at the emotional needs of your child, but what of their financial needs? You don’t want your child to be a financial burden on their guardians, nor do you want the guardians to take up appointment only for the money. The best solution would be to ensure that your will makes provision for a testamentary trust in your will to safeguard your child’s inheritance.

Children under the age of 18 years may not inherit and if no provision for a trust is made, the assets will be converted to cash and all funds will be paid to the Guardian’s Fund. The Guardian’s Fund is a Government entity, regulated by the Master of the High Court, which is responsible for safeguarding the inheritance of minor beneficiaries until they turn 18.

The Fund does make provision for guardians to claim from a beneficiary’s inheritance when the money is needed to pay for school fees, clothes, medical fees, and any well-motivated needs. These claims need to be submitted on the correct government documents and must be accompanied by certified identification documents, personal banking details, fingerprints, and other documentation that is deemed necessary to motivate the specific claim. When possible, these claims are paid directly to the third party and never passes the hands of the beneficiary or their guardian.

A testamentary trust will safeguard the inheritance of a beneficiary in the same way that the Guardian’s Fund is supposed to, while beneficiaries and guardians will be able to access the inheritance through simpler, and timelier means through the trustee(s).

When it comes to fully understanding Wills and Trusts and which structure will be the most beneficial to you and your child’s inheritance, it is prudent that you obtain legal advice to make sure your legacy and the wellbeing of your children are truly safeguarded. Please contact the following attorney in this regard:

Ariza Vermeulen

Cell: 082 718 2574

Email: ariza@nvsinc.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)