Minor Children : The Importance of Appointing A Guardian in Your Will

Eleanore Hiralall | Attorney/Legal Services Division

Having a valid Will in place is important as it ensures that an Executor of your choice can be appointed to fulfill your last wishes and administer your estate upon your death. Equally important is your minor children that you leave behind and the worrying question: “What will happen to my children when I die”?

Appointing a guardian in your Will gives you peace of mind that upon your death someone you trust will act in the best interests of your minor child/ren.

Why should I appoint a guardian?
Minor children lack the required legal capacity to contract and manage their own affairs. A guardian will ensure that any major decisions relating to your minor child/ren will be dealt with responsibly ensuring their best interests at all times or until your child/ren is old enough to make decisions themselves.

Can funds be paid to minor children?
Any funds or inheritance due to a minor cannot be paid to said minor until they reach the age of majority or the age as stipulated in your Last Will and Testament.

What happens to the funds due to my minor child/ren?
Funds due to minor children cannot be paid to minor children. Funds will need to be managed by an adult person such as a legal guardian or trustee/s of a trust fund who will then ensure that any expenses requiring payment to third parties is in fact paid and/or funds needed in the future is invested for the benefit of the minor.

Can funds be put into a trust?
Funds due to a minor ideally should be put into a trust fund to be administered by trustees of your choice for the benefit of your child/ren until they are in a position to take control and administer their funds.

Who should I appoint as a guardian for my child/ren?
Appointing a guardian is not an easy decision to make as it is an important role to be fulfilled by a trustworthy, responsible individual when you pass away. Any person (including immediate family members) having an interest in the well-being of the minor child/ren can be considered for the role as guardian for your minor child/ren. Be wise to also plan ahead and have a second-choice guardian secured in order to circumvent the possibility that your guardian of first choice could predecease you or is unable to perform the duties and responsibilities required of him/her.

Can I change my guardian?
During your lifetime you can change your choice of guardian by updating your Last Will and Testament. It is imperative that you adhere to the signing formalities as required in the Wills Act, 7 of 1953 in order for your guardianship clause to be valid and acceptable.

What are the implications if I do not appoint a guardian?
Failing to appoint a guardian of your choice during your lifetime for the care of your children, which is the most important decision that you would need to make, means that someone whom you may not have considered as an ideal choice could become the guardian for your children. In addition, persons who are not nominated in a Will would have to bear the financial repercussions in instituting a High Court Application for the appointment of guardian to be made. This can all be avoided by making the nomination of your choice.

What can I do to ensure that I have a guardianship clause in my Will?
If you have minor children, assess your Will to ensure that your Will includes a
guardianship clause where your child/ren will be entrusted to a person of your choice to oversee, take control and manage their physical and financial well-being when you pass away.

For further details on implementing a guardianship clause in your Will make sure to consult with an Attorney without delay.