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I am named as the legal guardian of my brother’s children. What are my obligations?

When your brother asked you if he could name you as the guardian of his newborn, you felt proud and excited beyond words.  But have you considered what it actually means in terms of our law to be a guardian?

If you are named as the legal guardian of your brother’s children in his will, it means that you would have legal responsibility for the children’s care and upbringing, should both parents pass away. This would include making decisions about the child’s education, healthcare, and general welfare, as well as providing for the child’s basic needs, such as food, clothing, and shelter. In addition to these responsibilities, being named as the legal guardian would create financial obligations, which would depend on a number of factors, such as the age, needs and expenses of the children, and the financial resources that you have available.

Usually children are entitled to receive financial support from their parents’ estate, such as from life insurance proceeds or other assets. However, if these resources are not sufficient to cover the children’s needs, you as the guardian may be required to provide additional financial support, depending on the applicable laws and court decisions.

In South Africa, guardianship is governed by the Children’s Act of 2005 and the Mental Health Care Act of 2002. These laws impose certain parental rights and responsibilities upon parents and guardians. A guardian would be appointed by the court to make decisions on behalf of a minor or incapacitated adult, who is known as the ward. Guardianship refers specifically to the legal relationship between a guardian and a minor, or an incapacitated adult. Guardianship of minors refers to the legal relationship between a guardian and someone younger than 18.

On a day-to-day basis, the care of a child means the safekeeping and protection of that child, provision of daily needs (food, shelter), emotional and financial support. As their guardian you will be responsible for the maintenance, care and upbringing of the children, and will have the authority to make decisions on their behalf. Your role will be to assist the child in all ways, including medical treatment and legal, administrative, and contractual matters.  It can also include refusing consent when it comes to a child’s marriage, adoption, removal or departure from South Africa and even an application for a passport or consenting to the sale of a child’s immovable property.

Legally, the High Court is the upper guardian of all children in South Africa, so if someone believes that a guardian is not fulfilling their required duties, under certain circumstances the High Court can intervene and terminate guardianship. The best interests of the child are always of the highest importance so the child’s well-being and ability to thrive as it applies in your particular situation, would be taken into consideration. Since families and situations are different, decisions are made on a case-by-case basis, and factors such as the relationship between you and the child would also be considered.

Remember that being named as a legal guardian in a will does not necessarily mean that you are obligated to take on this responsibility. If you do feel that you will not be able to care for the child, you may decline the appointment as guardian, and the court would then look for an alternative guardian for the child. It is advisable to obtain the services of a legal professional to guide you through the process especially if you have children of your own, or are not sure what the legal implications would be. AED Attorneys can assist you to ensure that every child’s interests are taken into consideration and that your documents are updated to make provision for a potential new addition to your family.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.