Legal Guardianship

WHAT IS A LEGAL GUARDIAN FOR A CHILD?

A legal guardian is an individual who has been appointed by a family court for the following reasons:

1. To speak on behalf of a child
2. To take responsibility for a child’s wellbeing, health, safety and upkeep.
3. To make decisions on behalf of a child such as schooling and discipline.
4. To ensure a child is cared for and brought up in a proper fashion (their day to day needs are taken care of) 
5. To arrange for the care and upbringing of a child.
6. To be a child’s legal representative
7. To manage the child’s assets
8. To manage the child’s finances.
9. To manage the child’s inheritance.

Legal guardians are also known as conservator, curator and custodian.

WHEN IS A LEGAL GUARDIAN APPOINTED BY A COURT?

A court may appoint a legal guardian for the following reasons:

1. To take parental responsibility for a child where nobody else has parental responsibility for the child. This may happen if a child’s parents pass away and the child is orphaned. 
2. The child’s parent(s) are ill and cannot care for the child.
3. The child’s parent(s) are in jail and cannot care for the child.
4. The child’s parent(s) are overseas.
5. The child’s parent(s) are in the army
6. The child’s parent(s) are mentally incapacitated.
7. The child’s parent(s) are disabled
8. The child has been abandoned.

WHAT IS THE MINIMUM AGE OF A LEGAL GUARDIAN?

The minimum age of a legal guardian is 18 years of age.

DOES APPOINTING A LEGAL GUARDIAN TERMINATE A PARENTS PARENTAL RIGHTS?

Not necessarily. In most cases it does not. 

SHOULD YOU APPOINT A LEGAL GUARDIAN(S) FOR YOUR CHILD IN YOUR WILL IN THE EVENT OF YOU AND THE OTHER PARENT PASSING AWAY?

If both you and the other parent pass away (for example in an accident) the court will appoint the legal guardian(s) you have named in your will (if they deem it suitable) to take responsibility for your child if they are under 18 years of age. 

If you do not appoint a legal guardian(s) then the court will appoint a legal guardian(s) to look after your child in the event of yours and the other parent’s death.

You can appoint a single legal guardian or a couple as joint legal guardians.

You can also appoint alternative legal guardians for your child in case your primary legal guardians pass away.

Only a person with parental responsibility for a child can appoint a legal guardian for their child in their will.

CAN A GODPARENT BE MADE A LEGAL GUARDIAN?

Yes they can if a parent requests that and the court agrees and appoints the godparent as the child’s legal guardian. 

WHAT FACTORS SHOULD YOU TAKE INTO CONSIDERATION WHEN YOU APPOINT A LEGAL GUARDIAN FOR YOUR CHILD IN YOUR WILL?

The legal guardians you will appoint in your will to take care of your underage child in the event of yours and the other parents death is a very important decision which needs serious consideration.

1. Do you agree with the parenting values of the legal guardian(s) you wish to appoint?
2. Do they have the ability to look after your child?
3. Can they provide a stable home for your child?
4. Do you trust them to make decisions in the best interest for your child?
5. Can they take on the long term responsibility for your child?
6. Do they have time for your child?
7. Do they have energy for your child?
8. Will your child be happy with the decision?
9. If you have more than one child will the legal guardian keep them together?
10. Does the guardian live in the same area so that your child will still go to the same school and continue in a familiar environment. 
11. Do you agree with the lifestyle of the individual(s) you are appointing?
12. Do they have the correct personality to look after your child?

WHAT IF YOU CHANGE YOUR MIND ABOUT APPOINTING A LEGAL GUARDIAN IN YOUR WILL?

If your will has been written and you would like to change the legal guardians then you can do so by making an official alternation to your will. This is called a codicil. You must sign the codicil and get it witnessed.