Why appointing a guardian for your minor children is essential

As parents, one of the hardest things to contemplate is the possibility of not being around to raise our children. Yet, planning for such a possibility is one of the most responsible things we can do. While financial provision is an essential part of any estate plan, it’s equally important to nominate a legal guardian who can care for your minor children in your absence. Here’s why this decision is so critical.

Minor children cannot manage their own affairs: Children under the age of 18 lack the legal capacity to manage their own financial or legal affairs. A guardian is legally required to manage those affairs in the children’s best interests until they reach the age of majority, or a later age if specified in your Will.

The effects of dying without a Will: Sadly, about 70% of South Africans die without a Will. What many don’t realise is that if you die intestate and have minor children, the courts are left to decide who will care for them in your absence. This process can be lengthy and contentious, especially if more than one family member steps forward.

Your child’s other parent will usually become the sole guardian: If both parents hold parental responsibilities and rights, they are considered natural guardians. Upon the death of one parent, the surviving parent typically becomes the sole guardian. This means that a guardian nomination is only needed if both parents pass away simultaneously or if a parent is the sole guardian.

Court-appointed guardians can decline the role: Unlike natural guardians, court-appointed guardians can accept or refuse the appointment. If accepted, their duty is not to financially support the child but to manage the child's property and interests. This highlights the importance of selecting someone willing and prepared to take on the responsibility.

Guardians do not have unfettered powers: A guardian is entrusted with the management of any inheritance left to your child. However, they cannot, for example, sell or bond immoveable property without permission from the Master of the High Court. Their powers are limited and should be clearly outlined in your Will.

You can remunerate your child’s guardian: The Children’s Act allows for a guardian to be paid for their services, and this can be included in your Will. If not specified, the Master’s Office uses a standard tariff to determine remuneration, which is designed to ensure fair compensation for what is often a complex role.

Estate planning should include financial provision for your children: As guardians are not financially responsible for your children, it is important to ensure that your estate plan includes adequate financial provision. Life cover is often a vital component, helping to fund education, living expenses, and general welfare until your children are financially independent.

Avoid the Guardian’s Fund where possible: If your Will leaves assets directly to your minor children, those assets may be paid into the Guardian’s Fund, where they will be administered on your child’s behalf until they reach the age of majority, which is not ideal. To avoid this happening, consider setting up a testamentary trust to house your children’s inheritance.

Consider a testamentary trust to safeguard assets: By creating a testamentary trust in your Will, you can house your children’s inheritance in a structure that comes into formation in the event of your passing. Your appointed trustees will manage the assets for your children’s benefit until they reach an age you specify in your Will. A testamentary trust provides a more flexible and controlled asset management solution for your children.

Choose your guardian carefully and revisit the decision frequently: According to the Children’s Act, a guardian is expected to manage property, assist in legal matters, and provide consent for international travel and property transactions. When choosing a guardian, consider your child’s relationship with them, their values, location, and parenting style. Always discuss with your proposed guardian to ensure they are willing and able to take on the role and revisit this nomination regularly as life circumstances evolve.

Appointing a guardian for your minor children is one of the most profound decisions you’ll make in your estate planning journey. It’s about more than naming someone on paper—it’s about ensuring continuity of care, shared values, and stability in your child’s life should the unthinkable happen. 

* Tapfuma is a Certified Financial Planner professional at Crue Invest.

PERSONAL FINANCE