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16 September 2015
Clive Hill, legal adviser at Sanlam Trust, says your children’s godparents have no legal role when it comes to the children’s protection and well-being after your death, whereas their guardians have a legal role with long-term responsibilities with regards to their protection and well-being.
He notes that this very important consideration should be clearly stipulated in your will to ensure that your children are left in the care of people who are informed, ready and prepared for the consequences of guardianship. Another consideration is that your appointment of legal guardians should be reviewed from time to time, as people’s circumstances change and the person you selected after the birth of your child may no longer be the appropriate choice 10 years later.
A godparent is essentially a spiritual role, not a legal one, explains Hill. “Its origins are religious, and although there are cultural variations, the role today is mainly a symbolic one.” A legal guardian, on the other hand, is the person who will make all the important decisions regarding your child’s welfare should you die or become incapacitated – decisions about where your child will live, schooling and general care until the age of 18. The legal guardian, as named in your will, will be formally appointed by the Master of High Court,” he says.
Hill recommends stipulating who you would like to be your child’s legal guardian in your will. You can also include a short motivation for your choice, in a separate annexure to your will. “If one parent dies, the other biological parent will become the legal guardian, irrespective of the divorce agreement, if there is one. If both parents die, the Master will consider your recommendation of legal guardian.
“If no guardian has been recommended, the Master will consider the closest living relatives for the role. The Master may, when deciding who to appoint, take into account the fact that you have chosen one or more persons to be godparents for your children , since these people are likely to be family members or close friends trusted by the parents.”
When choosing a potential legal guardian for your child, Hill suggests considering someone who:
“Money should, however, ideally not be an issue when deciding on a legal guardian, since you should make provision for the financial care of your children in the event of you not being around to take care of them. It is not fair to expect the guardian to carry this burden. The easiest and most affordable option is to take out a life policy for your child. An education policy is also a good option. The guardian will be legally obligated to take care of your child only until the age of 18 – who will pay for tertiary education?”
Hill says the guardian could also be assisted by setting up a testamentary trust in your will, in which you can leave assets to your minor child, including cash which can be used by the guardian for day-to-day expenses. “It is always an unhealthy situation if the trustee and the guardian are the same person, however – we recommend an independent, professional trustee who is not a family member to ensure impartiality and neutral decision-making in the best interests of your child.”
He recommends appointing the services of a trusted financial adviser to assist with drawing up an appropriate financial plan which includes provision for minor children in the unforeseen event of both parents dying. “Also, setting up a trust of any kind is a complex matter. To avoid stepping into what is potentially a legal minefield, it is crucial that you obtain the assistance of a qualified fiduciary practitioner. It will definitely be money well spent to secure your children’s legacy.”
Hill says whereas godparents are usually selected for life, your choice of legal guardian should be reviewed on a regular basis. “People’s personal circumstances change and the candidate you selected at the birth of your child may no longer be an appropriate choice 10 years later.”
“Also, it goes without saying that the guardian should be asked beforehand if they feel up to the task, and informed in detail of the financial arrangements that have been made. This gives both parties the opportunity to raise and resolve concerns, ensuring peace of mind that your chosen legal guardian will look after your child in the way you intended,” he concludes.