A client asked me when
and how a person should appoint a guardian to look after minor children, on his
or her death.
Why is it so important to appoint a
legal guardian for your children?
On the death of the
first dying parent, the surviving parent becomes the sole guardian. On his or
her death, the legal guardian would be appointed. If the will does not nominate
a guardian for the minor children, then a family friend or relative would have
to apply to court, at some expense, to be appointed as the legal guardian.
Usually, the will
provides that the person who will manage the trust created in terms of the will
(the trustee), and looks after the children (the guardian) are one and the
same.
Who should you appoint as a legal
guardian (relative, best friend)?
Guardians nominated in a will can choose if they
wish to accept the office of guardian. On that basis, you should always
approach a close family friend or relative, you know you can rely on, and who
will accept the office of guardian.
Ideally, the legal guardian should know the family
well and can be depended on to act in the best interests of the minor children.
When does the guardian’s legal role end?
The legal guardian must administer the property
that the minor children inherited, until each child attains majority (turns
18). The last dying parent may feel that a child of 18 is not mature enough to
manage the property, and the will may provide that the guardian’s role will end
only when the child turns, say, 21.
Would the guardian also be responsible
for the children financially?
A legal guardian is entitled to be paid for
administering the minors' estate. This can be set out in a will or is
determined in accordance with the tariff laid down by the Master of the High
Court.
There should be sufficient funds in the trust,
created in terms of the will, to provide for the maintenance of the minor
children. It would never be the responsibility of the legal guardian to provide
for them, financially. The last thing the parent would want is that the
executor must sell a fixed property to raise sufficient funds to maintain the
children. If it means taking out a life policy to provide for the children,
that is a good idea.
‘Maintenance’
generally means maintenance, education (including higher education), vocational
training, setting him up in a business or a profession, accommodation,
holidays, travel, general welfare and benefit and reasonable pleasures.
The will should provide that the legal guardian
does not have to put up security to exercise his duties and that he or she can
manage the funds of the minor children. If the will is silent, the guardian is
obliged to pay the cash funds into the Guardian’s Fund, managed by the state.
In that event, the guardian would have to approach the Master of the High
Court, cap in hand, for funds to maintain the children. This should be avoided
at all costs.
The will should also provide that the guardian may
(or may not) sell or mortgage any of the minor children's immovable property.
If the will is silent, the guardian needs permission from the High Court or, if
the property is worth less than R10,000, by the Master. Ideally, the will
should give the guardian extensive powers.
Can you stipulate things in your will
that your children’s legal guardian must abide by, e.g., where they should go
to school or what religion you’d prefer them to follow?
The will can give
directions to the guardian, concerning the schooling of the children and what
religion they should adhere to. However, it's not likely that a court would
enforce these directions, if the guardian fails to adhere to them. This would
be especially the case when the children become old enough to make their own
decisions.
How often should you revisit the issue
of who is your kids’ legal guardian and why (changing circumstances, etc)?
If your nominated
guardian passes away, the will should provide for an alternative guardian.
Otherwise, you should amend your will, as circumstances change.
