LIFESTYLE
06/06/2018 06:06 SAST | Updated 06/06/2018 06:06 SAST

Choosing A Legal Guardian For Your Child, Should You Die

...and the difference between a legal guardian and a godparent.

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It's not rare for parents to appoint trusted friends or family members as godparents and or guardians over their children.

Some parents will appoint church members as their child's godparents, or pick distant relatives as guardians.

But being a godparent or a guardian — terms sometimes used interchangeably, actually carry different legal implications.

Guardians have a legal role with long-term responsibilities towards your child's protection should you die, while godparents have no legal role, but essentially play a spiritual guidance role.

Choosing who will be your child's guardian, therefore, is a serious decision. "You want to be sure that they will care for your child in the way you intended," said David Thomson, senior legal adviser at Sanlam Trust.

Importantly, you also need to get the consent of those you intend looking after your child, as this is a major responsibility should it come to that.

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Thomson explains the process below:

How is a legal guardian appointed?

If someone nominates you in their will as the guardian of their child, the process is only binding once you accept that nomination. Assuming that you do, you are duly appointed by the Master of the High Court when parents pass away. You will then be required to take care of the child and make decisions such as where the child will live, their schooling and general care until the age of 18, or until they have the means to financially support themselves.

Exactly what does being a guardian entail?

It's important to note that there are two types of guardianship, and depending on the provisions made for the child by the parents before their passing, the difference between these could have potentially devastating effects on the finances of the guardian.

"When you agree to be a guardian, you will be notified of two options. The Master of the High Court is required to issue Letters of Tutorship or Curatorship. A 'Tutor' is defined as a person who is authorised to take care of the child and their assets. A 'Curator' only takes care of the assets of the minor child. It is important to note that you can refuse appointment in the first place," said Thomson.

If you agree to be both Tutor and Curator, you are fully liable and responsible to provide appropriate support to the minor child until they turn 18. But the obligation can stretch beyond the age of 18 because if the child has insufficient means to complete their education and is still unemployed, you will have to keep supporting the child. Needless to say, Thomson recommends considering the situation very carefully before agreeing to be a child's guardian.

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How should parents choose a guardian?

When choosing a potential legal guardian for your child, Thomson suggested the following considerations:

  • While relatives might seem like an obvious choice, this isn't always the most appropriate option if your child doesn't have a close relationship with them. A close family friend who is familiar with the child and possibly has children of a similar age and disposition might be a better choice. The compatibility with the children is the most important.
  • While you need to make provision in your Will for funds to care for and educate your child, it's strongly advisable to ensure the person you nominate as guardian is financially sound with enough means to 'absorb' your child into their family.
  • If your child is already a teenager, it's worth talking to them about this. You are making a critical decision that will determine your child's future, so it is important that the child is involved in the process.
  • The guardian should also be a person who shares your values and spiritual beliefs – ultimately, the least disruption to your child's routine, the better.
  • Whenever you review your Will or discuss it with your partner or financial adviser, you should consider the financial and emotional well-being of your nominated guardian and carefully consider their suitability. If the nominated guardian is not in a position to look after your child anymore, you should seriously consider nominating a new guardian.