Did you know that your children’s godparents have no legal role when it comes to their protection and well-being after your death? Only a legal guardian stipulated by you in your will can fill this role.
“Appointing a legal guardian for your children should be clearly stipulated in your will to ensure that your children are left in the care of people who are informed and ready and prepared for the consequences of guardianship,” says Clive Hill, legal adviser at Sanlam Trust. He adds that your appointment of legal guardians should be reviewed from time to time, as people’s circumstances change and the person you selected after the birth of your child may no longer be the appropriate choice 10 years later.
The difference between a godparent and a legal guardian
A godparent is essentially a spiritual role, not a legal one, explains Hill. “Its origins are religious and although there are cultural variations, the role today is mainly a symbolic one.”
A legal guardian is the person who will make all the important decisions regarding your child’s welfare should you die or become incapacitated. These include decisions about where your child will live, schooling and general care until the age of 18. The legal guardian, as named in your will, will be formally appointed by the Master of High Court.
How do I appoint a legal guardian?
Hill recommends stipulating who you would like to be your child’s legal guardian in your will. You can also include a short motivation for your choice in a separate annexure to your will. “If one parent dies, the other biological parent will become the legal guardian, irrespective of the divorce agreement if there is one. If both parents die, the Master will consider your recommendation of a legal guardian.”
“If no guardian has been recommended, the Master will consider the closest living relatives for the role. The Master may, when deciding who to appoint, take into account the fact that you have chosen one or more persons to be godparents for your children since these people are likely to be family members or close friends trusted by the parents,” says Hill.
When choosing a potential legal guardian for your child consider someone who:
- Has a cultural background and family values similar to yours
- Your child knows and is comfortable with, especially if the guardian also has children
- Lives in the same neighbourhood, ensuring continuity of schooling
- Keeps regular contact with you and your children
- Is relatively stable financially.
Money should not be an issue when deciding on a legal guardian as you should make provision for the financial care of your children in the event of you not being around to take care of them. It is not fair to expect the guardian to carry this burden. “The easiest and most affordable option is to take out a life policy for your child. An education policy is also a good option. The guardian will be legally obligated to take care of your child only until the age of 18,” explains Hill.
The guardian should be asked beforehand if they feel up to the task and informed in detail of the financial arrangements that have been made. This gives both parties the opportunity to raise and resolve concerns, ensuring peace of mind that your chosen legal guardian will look after your child in the way you intended.
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