Christo Mulder Attorneys

No parent wants to think about giving their child over to someone else. The idea itself is enough to send many into full Liam Neeson Taken mode, refusing even the idea of their child being taken away from them to find a hold in their minds. But what is it’s not your child that is taken away, but you?

Making sure your child is cared for and looked after by someone you know will care for them (almost) 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.

While your own personal relationship with the prospective guardian is vital, consideration needs to be given to your child’s opinion of them as well. When you feel you have found the perfect candidate, take the time to talk to your child about it. Even if you don’t, 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. The reason for refusal may include that they have started a family of their own, they moved too far away, they started a new profession, or even that they have simply changed their minds. The grounds for declining guardianship have no bearing on whether or not their decision is accepted or not.

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, with second cousins twice removed on someone or other’s side barely being given a second thought. In these cases, the next of kin will also have to accept their guardianship, though, just like any other guardian.

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

But what if you had actually considered that second cousin as a guardian when you set up your will? What if you have a friend that will make an amazing parent (just maybe not as amazing as your first choice of guardian)? 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 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, and not with a distant aunt that no one even knew of.

Choosing a guardian (or guardians) isn’t a simple task, but it’s one that is essential to ensuring your child will always have someone ready to go full Liam Neeson for them.

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)

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