The Children’s Act allows a parent who is the sole guardian or who has the sole care of a child to appoint a fit and proper person as the guardian or person or to be vested with the care of the child in the event of the death of the parent. This appointment must be contained in a will made by the parent.
A person appointed in a will acquires guardianship or care, as the case may be, in respect of a child after the death of the parent, provided that the person concerned expressly or by impliedly accepts the appointment.
If two or more persons are appointed as guardians or caregiver of the child, any one or more or all of them may accept the appointment except if the parent’s will provides otherwise.
The final decision concerning the appointment of a caregiver or guardian for a minor, whether nominated in a will or otherwise, rests with the High Court which is the upper guardian of all minor children. The guiding principle is the best interest of the child.
The child’s views must also be considered in any decision regarding the appointment of a caregiver or guardian. The Children’s Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him or her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered.
For advice on the appointment of a caregiver or guardian for your minor children in your will and other issues relating to wills and succession planning, please contact our estates department professionals Roald Besselaar at firstname.lastname@example.org or Elke Herbst at email@example.com.
Roald Besselaar | Partner
Areas of Expertise: Conveyancing, Estate Law, Wills, Trusts, Curatorships, Property Law
Elke Herbst | Associate
Areas of Expertise: Wills, Deceased Estates, Curatorships
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)