As parents, we all worry about what would happen to our minor children if we were to pass away and making financial provision for them is naturally top of mind. That said, appointing a legal guardian for your minor children is equally important to ensure that someone you know and trust will care for your children if you are no longer around.
In terms of our law, minor children do not have legal capacity and are therefore not able to manage their own affairs – making the role of guardian both a critical and an onerous one. Because of this, one of a guardian’s primary functions is to manage your minor child’s affairs in their best interest until they reach the age of majority (being age 18) or a pre-determined age as stipulated in your Will, being the appropriate instrument for guardian nomination. Sadly, about 70% of South Africans die without a Will and those dying intestate with minor children leave behind several challenges, particularly in relation to guardianship of the children – and it is generally left to the courts to decide who will look after the children.
If you and your minor child’s other parent have parental responsibilities and rights, you are considered by law to be the child’s natural guardians which include a legal duty to support the child. This is because the duties of a natural guardian are legislated meaning that a child’s parent does not have a choice in being the child’s guardian. In the event of your death, the surviving parent will generally become the child’s sole guardian. In such circumstances, it would only be necessary to nominate a guardian for your minor children in the event of the simultaneous death of both parents. However, where a parent is the sole guardian of a minor child, it is important to nominate a fit and proper person in their Will to care for the child in the event of their death. In the case of a divorced couple who have joint parental rights and responsibilities, they are considered to be co-guardians and in the event of one parent dying the surviving parent will automatically assume care of the child.
Unlike a child’s natural guardian, a guardian appointed by the court can choose whether to accept the position or not. However, in assuming the office of guardian they do not have a legal duty to support the child but rather a duty to administer the minor child’s property in their best interests until they are old enough to manage their own affairs. This means that any inheritance left to your minor children, to the extent that it does not fall within the ambit of the Guardian’s Fund, is entrusted to the appointed guardian, although their powers have certain limitations. For instance, a guardian cannot realise or bond immoveable property belonging to a minor child without permission from the Master. The Act makes provision for your child’s guardian to be remunerated and this fee can be included in your Will. Alternatively, the Master’s Office lays down a tariff setting out a guardian’s remuneration.
As it is not the appointed guardian’s job to provide financially for your children, making adequate provision for them in your estate plan is essential – and this is something that your financial advisor can assist you with. While you are still accumulating assets and building your wealth, it may be necessary to provide for your children by taking out life cover which should be sufficient to provide for the ongoing maintenance, education, vocational training, and general welfare. Remember, however, that if you leave funds directly to your minor children, these funds are likely to be housed in the state-run Guardian’s Fund where they will be administered on their behalf until your child reaches age 18. This is not an ideal situation because not only is the interest earned in the Guardian’s Fund poor, but the administration and claiming process can be cumbersome and slow which can be extremely frustrating for your loved ones.
To ensure that assets intended for your minor children are protected and properly managed, it is worth considering setting up a testamentary trust in terms of your Will. A testamentary trust, or mortis causa trust, comes into being upon your death for the purposes of housing those assets you would like your minor children to ultimately inherit. By naming the trust as the beneficiary of those assets, the assets will be transferred into the trust upon your death where they will be administered by your appointed trustees for the benefit of your children until they reach either age 18 or an age nominated by you. When appointing your trustees, keep in mind that your child’s nominated guardian may also be nominated as a trustee, although it is advisable to have three trustees to ensure checks and balances when it comes to managing the trust assets.
As mentioned above, a child’s appointed guardian fulfils an important role and choosing a suitable guardian for your minor children is a decision not to be taken lightly. In terms of the Children’s Act, their function 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 immoveable property belonging to the child.
When considering who to nominate as guardian to your minor children, you may want to consider the following questions:
- How well do your children know the person and what is their relationship like?
- Where does that person live in proximity to you, and will your children be able to remain at their current school and within the same circle of friends?
- Does that person have the same or similar moral and ethical values as you?
- Do you trust that person to put the best interests of your children first at all times?
- Does the person have children of their own and do you appreciate their parenting style?
- Will that person respect your wishes to raise your children according to your religious beliefs?
However, remember that it is essential to discuss the matter with your proposed guardian to ensure that they are comfortable taking on the responsibility and happy to assume the office of guardian should the need arise. Remember also that family relationships and friendships change over time so it is advisable to regularly review your Will to ensure that your nominated guardian remains the best person for the role if you were to pass away. As mentioned at the start of the article, if you fail to nominate a guardian in your Will or die without a valid Will, your relatives or friends would need to apply to the High Court to be appointed legal guardians to your child, and this can be a costly process which can also be enormously traumatic for your children to endure. While the court is the upper guardian of all minor children in South Africa, it is comforting to know that the court will always take a minor child’s view into account when appointing a guardian, naturally depending on the age and maturity of the child. However, the fact remains that as a parent of minor children, it remains part of your parental responsibility to ensure that your children are not only provided for financially should you no longer be around, but that you choose a suitable guardian to care for your children in your absence.
Have a super day.
Sue
