Written by Mari van der Walt 
30 November 2022

Appointing a Legal Guardian in your Will: Who will Take care of your Children if you are no Longer Here?

In light of your child being your most prized possession, in the unfortunate event of your passing, you want to ensure that your child is raised with the same love and care you would have provided them with. Choosing a suitable guardian for your minor child, who shall take over all your parental rights and responsibilities, is thus a vital decision that must be made.

What is a Legal Guardian? 

A legal guardian is the person/people nominated in the Last Will and Testament of a testator/testatrix who will take over all care and responsibilities in respect of the minor child(ren) in the unfortunate event of both parents passing away. Essentially the legal guardian will step into the parents’ shoes and take over their rights and responsibilities.

Is a Legal Guardian a Godparent?

No, a godparent fulfils a spiritual role in the minor child’s life, relating to cultural and religious guidance. No legal rights and responsibilities are bestowed on a godparent. The legal guardian’s role differs completely. They will mirror the role of the biological parent(s), for example, being responsible for all the child’s expenses, daily care, and life decisions, such as education and medical care.

Who can be a Legal Guardian?

A legal guardian must be a major, over the age of 18, and a fit and proper person who is responsible and a trusted family member or friend. Choosing a person your child is also comfortable with is essential.

What Factors are Considered when Choosing a Legal Guardian?

There are numerous factors which should be considered when selecting a legal guardian; these can include but are not necessarily limited to the following:

  • The family values as displayed by the guardian;
  • The relationship between the guardian and your child;
  • The financial stability of the guardian;
  • The neighbourhood the guardian resides in, as your child may need to relocate to the said neighbourhood and they may be impacted by such a transition;
  • The religion and culture of the guardian;
  • The age and health status of the guardian;
  • Whether the guardian has an interest in the child’s well-being; and
  • The willingness of the guardian to assume such a big responsibility.

How is a legal guardian appointed?

As a point of departure, where only one of the biological parents pass away, it must be noted that the surviving parent will automatically become the sole legal guardian of the minor child(ren).

In the tragic event of both parents’ passing, two possibilities occur. Firstly, the legal guardian would normally be nominated in the Last Will and Testament. The guardian will then be appointed as the minor child’s legal guardian; however, this must be confirmed via a court order as the legal guardian shall only be granted the necessary rights and responsibilities by a competent High Court. It is important to note that a court application would be necessary to assume the position of a legal guardian. The Last Will and Testament, wherein the legal guardian is nominated, can be utilised to support the subsequent court application. Secondly, should the Last Will and Testament not make provision for a guardian, or if the parents passed away without a valid Will, the court will appoint a legal guardian for the minor child. This court application can be made by any interested party, as no singular person would be nominated.

Who can Appoint a Legal Guardian?

The Master of the High Court has no jurisdiction to appoint a legal guardian over a minor. Only the High Court within the applicable jurisdiction shall have the discretion to appoint or revoke guardianship, as the High Court is the supreme guardian of all minor children.

How many guardians should be nominated? 

It is standard practice to nominate a primary guardian; however, it may be beneficial to nominate a secondary guardian if the primary guardian cannot assume the role of legal guardian of the minor child(ren).

Who manages the financial affairs of the minor child? 

The Guardian Fund will automatically manage the minor children’s inheritance if no Testamentary Trust appoints a trustee.

It is recommended that a Testamentary Trust be drafted to accompany the Last Will and Testament. The Trust Deed will set out who the trustees are, their powers, and how the minor children will be maintained. It is advisable that the Trustee and Legal Guardian are different people in order to avoid misappropriation of trust funds. The Trust will only be registered if the children are still minors when they are to receive their inheritance.

What Happens if no Legal Guardian or Trustee is nominated?

A minor child cannot receive an inheritance due to their lack of contractual capacity. Accordingly, the default position is that the inheritance will be deposited into the Guardian’s Fund, a state fund under the control of the Master of the High Court. It is thus recommended that the parents make provision for a testamentary trust in their Last Will and Testament to keep the inheritance safe.

What is the Guardian’s Fund, and how does it work? 

  • What: The Guardian’s Fund is a state fund operating under the Master of the High Court.
  • Operation: Once monies are deposited at the Guardian’s Fund, an account for the specific beneficiary is opened. All monies held by the Guardian Fund are invested in the Public Investment Corporation, an asset management company solely owned by the government. The invested funds shall bear a minimum interest, as prescribed by the Minister of Finance.
  • Claims: The legal guardian of the minor may claim all costs associated with the daily living expenses of the minor; however, claims are limited to R250 000 from the invested capital plus any interest earned and need to be motivated by means of quotations and statements of accounts and approved by the Master.
  • Withdrawal: Once the minor child reaches the age of 18, they can claim the remaining amount held by the Master. However, should the Last Will and Testament prescribe an age whereupon the amount can be claimed, such condition will take preference. 

What is a testamentary trust, and how does it work? 

  • What: A testamentary trust is also known as a mortis causa trust; it is created through the parent’s Last Will and Testament and only comes into effect upon their death. The intention to create a testamentary trust for the benefit of the beneficiaries must be clearly stipulated in the Will.
  • Working: The minor child’s inheritance will be bequeathed to the trust in favour of the minor child, and the appointed trustees will manage the inheritance to the advantage of the minor.
  • Trustees: The trustees are nominated in the Last Will and Testament; it is recommended that two trusted people be nominated (i.e., close family and or friends) as well as an independent trustee (i.e. an attorney and or an accountant).
  • Distribution and withdrawal: the trust deed of the testamentary trust can dictate how all assets are to be managed and the benefit of use thereof. Furthermore, the trust deed can stipulate the conditions for a beneficiary becoming entitled to its inheritance, for example, when they are a certain age. 

Can I change my legal guardian?

Yes, during your life, you can amend the nominated legal guardian in your Last Will and Testament. It is, however, essential to note that the Wills Act 7 of 1953 dictates specific procedures and formalities to be complied with when a Last Will and Testament is being amended.

Conclusion

Contact Burger Huyser Attorneys’ wills and estate lawyers in South Africa to ensure your children are well looked after in the unfortunate event of your passing. Our experienced team have drafted numerous Wills and Testamentary Trusts and can advise on numerous aspects of appointing a legal guardian and trustee/s.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE